Citation Nr: 1336307 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 12-17 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an evaluation in excess of 10 percent for allergy-induced asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1996 to February 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A Board hearing was held before the undersigned Veterans Law Judge by videoconference from the RO in May 2013. A transcript of the hearing is of record. The Veterans Law Judge held the record open for a 30-day period following the hearing to allow for the submission of additional evidence. Thereafter, the Veteran submitted additional evidence along with a written waiver of the RO's initial consideration. A review of the Virtual VA and VBMS electronic claims files does not reveal any additional documents pertinent to the present appeal, with the exception of the Board hearing transcript. The issue of entitlement to an increased evaluation for allergic rhinitis with periodic sinusitis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). In this regard, during the May 2013 Board hearing, the Veteran's representative indicated that consideration of this issue was appropriate in light of the claim for increase in the other service-connected respiratory disability now on appeal. Nonetheless, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. For the period prior to January 24, 2013, the Veteran's allergy-induced asthma was productive of use of daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication, but not Forced Expiratory Volume in one second (FEV-1) of 40- to 55-percent predicted, or; FEV-1/Forced Vital Capacity (FVC) of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 2. For the period on or after January 24, 2013, the Veteran's allergy-induced asthma has been equivalent to intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids, but not FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. CONCLUSIONS OF LAW 1. The criteria for a 30 percent evaluation, but no higher, for allergy-induced asthma have been met for the period prior to January 24, 2013. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.97, Diagnostic Codes 6699-6602 (2012). 2. The criteria for a 60 percent evaluation, but no higher, for allergy-induced asthma have been met for the period on or after January 24, 2013. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.97, Diagnostic Codes 6699-6602 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the claim for an increased evaluation was filed under the VA's Fully Developed Claim (FDC) Program. Under this program, the Veteran submits a claim to VA in a "fully developed" status, thereby limiting the need for further development by VA. Specifically, the Veteran is instructed to simultaneously submit all evidence relevant to the claim, to include private medical treatment records and identification of treatment records available at a Federal facility, such as a VA medical center. In certain circumstances, additional development may be required prior to the adjudication of the claim, to include obtaining additional records and/or providing a VA medical examination. New evidence submitted after a rating decision is issued but within the one-year period following submission of a claim can be considered, although such consideration precludes the Veteran's continued participation in the FDC process. See VA Form 21-526EZ. The Veteran received this notification as described above in the information accompanying the FDC form (VA Form 21-526EZ) and submitted an FDC certification form along with her September 2010 claim, prior to the initial decision on the claim in May 2011. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The FDC form notified the Veteran that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The form provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) relevant to establishing entitlement to increased compensation. Specifically, she was informed of types of evidence that might show such a worsening, including information about ongoing treatment, Social Security Administration determinations, statements from employers, and lay statements from people who have witnessed how the disability symptoms affect her. The FDC form also informed the Veteran of the division of responsibilities in obtaining the evidence to support her claim and explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. Moreover, the record includes written statements provided by the Veteran and her representative, as well as a transcript of the May 2013 Board hearing. The Veteran was also afforded a VA examination in April 2011 in connection with her current claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination in this case is adequate, as it is predicated on a review of the Veteran's medical history and VA treatment records, as well as on an examination, and addresses the rating criteria that are relevant to rating the disability in this case. The Board does observe that the examiner did not review the claims file; however, he did review the Veteran's own medical history and complaints, and performed a physical examination that addressed all of the rating criteria. Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the contention of the Veteran's representative that the VA examination in this case was not adequate. See, e.g., January 2013 representative statement. On review of the examination report, the Board finds that all subjective and objective findings necessary for adjudication of the Veteran's claim were observed and recorded, and this examination appears adequate, particularly in light of the concurrent treatment records by the Veteran's medical providers outside of the VA examination setting supporting the findings of the VA examiner. While there may be concern regarding the RO's application of the examination findings to the evaluation assigned, the Board reviews this matter de novo and will discuss such findings on that basis in this decision. Moreover, while there is objective evidence of record indicating that there has been a material change in the severity of the Veteran's service-connected disability since she was last examined, as discussed below, the Board finds that the medical evidence of record from the Veteran's treating physicians is sufficient to determine the current severity of the disability without the need for reexamination. 38 C.F.R. § 3.327(a); see also VAOPGCPREC 11-95 (the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted). In summary, the VA examination and ongoing treatment records, when viewed together, provide adequate medical evidence to make a decision on this record, as they sufficiently address the central medical issues in this case and allow the Board to make a fully informed determination. See Barr, supra. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran also testified at a hearing before the undersigned Veterans Law Judge in May 2013. During the hearing, the Veterans Law Judge set forth the issue to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information when appropriate. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony and questioning by her representative, demonstrated her actual knowledge of the elements necessary to substantiate the claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There has been no allegation otherwise. VA has further assisted the Veteran throughout the course of this appeal by providing her and her representative with a statement of the case, which informed them of the laws and regulations relevant to the claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of the claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different evaluations, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case, the Board finds that staged ratings are appropriate based on the evidence, as discussed in greater detail below. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that she is entitled to a higher evaluation for her service-connected allergy-induced asthma, which is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6699-6602 for a respiratory disorder analogous to bronchial asthma. Hyphenated diagnostic codes including a diagnostic code ending in the digits "99" are used when there is no specifically applicable diagnostic code and the disability is rated by analogy. 38 C.F.R. § 4.27. Under the General Rating Formula for Diseases of the Trachea and Bronchi (Diagnostic Codes 6600 through 6604), a 10 percent evaluation is warranted with FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation is warranted with FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation is warranted with FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent evaluation is warranted with FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. The Board notes that the special provisions for applying the evaluation criteria for certain respiratory diseases under 38 C.F.R. § 4.96(d) are not for application in this case, as bronchial asthma is not one the diseases specified in this provision. The Veteran contends that the symptoms of her service-connected asthma are not adequately contemplated in the results of pulmonary function tests (PFT), and that her disability is more appropriately considered under the alternative criteria for rating the disability based on her prescribed medications. She has also indicated that she experienced an increase in the severity of this disability beginning around 2009, to include coughing/wheezing on a regular basis. See, e.g., September 2010 claim; June 2011 notice of disagreement and supporting lay statements from family and co-workers; June 2012 substantive appeal (VA Form 9); Bd. Hrg. Tr. at 3-4. A review of the VA treatment records beginning around September 2009 shows that the Veteran received ongoing treatment for her asthma, noted to be moderately persistent. Her active medications included inhalers of Formoterol (twice daily), Mometasone (Twisthaler, once daily), and Albuterol (as needed). She also complained of a productive cough beginning that October, which had not improved two months later, and routine use of her rescue inhaler. See October and December 2009 2010 VA treatment records. Thereafter, throughout the course of the entire appeal, the Veteran was given various inhaled medications and non-corticosteroid oral therapy (Montelukast) with adjustments of dosages as needed; however, the record reflects that at least one inhaler was prescribed for daily use on a continuous basis. See, e.g., February, April, and August 2010, July and December 2011, July 2012, January 2013 VA treatment records; February 2011 Cape Fear Pulmonary treatment record. A December 2009 VA treatment record shows that the Veteran was assessed as having an asthma exacerbation for which she was treated with a short course of Prednisone (corticosteroid). A February 2010 VA pulmonary consultation also shows that the Veteran continued to complain of the cough; it was noted that the Prednisone was ineffective. At that time, the Veteran denied any hospitalizations for her asthma, but reported that she sometimes experienced shortness of breath at rest. The impression in relevant part was bronchitis and asthma. Another February 2010 VA treatment record shows that the Veteran continued to have problems with her asthma, despite resolution of the fever noted during her last appointment. At that time, the Veteran stated that she did not want to try Prednisone because it reduced her already poor appetite. Her Mometasone dosage was increased at that time. A May 2010 VA treatment record shows an impression of persistent cough that did not appear to be responsive to asthma treatment, but broncherra had decreased markedly. The Veteran again denied a recommended course of Prednisone due to side effects. A June 2010 letter to the Veteran informed her that a chest CT scan showed some changes due to chronic asthma/bronchitis. The Veteran was afforded a VA examination in April 2011 during which she reported symptoms, including chronic cough with intermittent production of tan mucus, shortness of breath at rest and with mild/moderate exertion, and nasal allergies. She had received allergy injections for the past six months, which she reported improved her nasal allergies, but not her asthma. She also reported having weekly asthma attacks and adequate functioning at home and work between attacks. The Veteran denied a history of hospitalizations, incapacitating episodes, and use of oxygen, but she missed ten days of work in the last year due to asthma symptoms. She reported ongoing treatment of Albuterol and Mometasone and indicated that she was not able to tolerate Prednisone due to side effects in the past. On examination, the PFT report shows FEV-1 readings were 96 percent predicted pre- and post-bronchodilator and the FEV-1/FVC reading was 91 percent predicted pre-bronchodilator; a post-bronchodilator value was not provided. The examiner noted in the PFT report that the study was within normal limits and that there was no significant response to bronchodilators. The examiner also noted that other recent PFTs were normal. The diagnosis continued as allergic rhinitis and asthma. The examiner indicated that it would be speculation to state whether the disorder was worsening, as objective testing did not indicate a worsening at that time. In the June 2011 notice of disagreement, the Veteran reported that she had no hospitalizations for her asthma. When she experienced bad days, she stayed at home to rest. In July 2011, the Veteran was treated with a short course of Dexamethasone (corticosteroid), in addition to her continuing inhaler treatments. Thereafter, a VA treatment record that same month shows that there was no improvement with this treatment. In December 2011, the Veteran reported to the emergency department with the complaint that her asthma was not responding to her inhaler. The assessment was upper respiratory infection with bronchitis, and she was discharged the same day with a prescribed Prednisone taper. In the June 2012 substantive appeal (VA Form 9), the Veteran reported that her doctor had switched her medications and provided her with a peak flow meter and nebulizer to help monitor and control her symptoms. She also indicated that the change in her asthma had significantly impacted her life, as she had to routinely explain to new people around her that she was not contagious. She was also unable to walk distances without getting out of breath, and many smells triggered asthma attacks. A July 2012 VA treatment record notes the history of the Veteran's various respiratory work-ups in the course of treatment for her asthma, which was noted to be severe and difficult to control. At that time, her pulmonologist provided an impression of resistant asthma, noting that the Veteran may be a candidate for Anti-IgE (immunoglobulin E) therapy. He also increased her inhaled medications. She was instructed to return to the clinic in six months. During the January 2013 VA follow-up appointment, the Veteran continued to have asthma symptoms. Her treating pulmonologist noted that he strongly felt that she needed Anti-IgE therapy. She reported that she was always wheezing, and the physician noted that she was developing pulmonary parenchymal changes due to severe airway inflammation. Following examination, the assessment was very severe asthmatic. The pulmonologist noted that the Veteran needed a trial of Xolair for six months. In the resulting pharmacy consultation request that same month, it was noted that all available bronchodilators were tried. Thereafter, the Veteran was approved for omalizumab (Xolair) and received her first injection at the end of January 2013, returning to the clinic for injections on a monthly basis. See January through March 2013 VA treatment records. During the May 2013 Board hearing, the Veteran testified that her symptoms became worse around 2009, and that her current treatment included daily inhalers (Symbicort and Combivent), use of a nebulizer (at least twice a month), and Xolair injections (four times a week). She indicated that she experienced trouble breathing on a daily basis and that it was difficult to climb stairs. She tried to work out as much as possible, but found her breathing difficulties made that difficult. She was never hospitalized for her asthma, but had to explain her condition to everyone at work due to her constant coughing. She also stated that her allergies and asthma "are two separate things" and that her allergies did not have a bearing on her asthma. The allergies were controlled by regular allergy shots. See Bd. Hrg. Tr. at 4, 8-13. The Veteran's representative indicated that she should have been rated at 30 percent considering the daily prescribed inhaler use and then a "step up to 60 percent" based on systemic injections. See Bd. Hrg. Tr. at 5-6. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 30 percent evaluation for her allergy-induced asthma for the portion of the appeal period prior to January 24, 2013. As an initial matter, the Board notes that the Veteran's PFT reports of record show normal results that would not result in a compensable evaluation for this disability. Indeed, the Veteran and her representative have routinely contended that the PFTs do not demonstrate her full disability picture. In any event, the rating criteria provide for alternate considerations for rating this disability, and these criteria are the focus of the Board's discussion. In this regard, the record clearly reflects that the Veteran used inhalers on a daily basis. Moreover, she had been on this course of treatment for her asthma prior to the appeal period with continuous, daily inhaler use thereafter. This treatment as reflected in the record is entirely consistent with the criteria for a 30 percent evaluation, as contended by the Veteran's representative during the Board hearing. However, the Board finds that the Veteran does not meet the criteria for assignment of a 60 percent evaluation prior to January 24, 2013. In this regard, the Board notes that the Veteran was treated with oral corticosteroids (either Prednisone or Dexamethasone) in December 2009, July 2011, and December 2011. She refused recommended corticosteroid treatment in February 2010 and May 2010 due to past side effects she experienced. The frequency of these treatments is not sufficient to meet the criteria contemplated in the 60 percent evaluation. In addition, while the Veteran took Mometasone Furoate daily, it was taken by inhalation, not orally or parenterally; this use does not meet the use requirement for systemic (oral or parenteral) corticosteroids. In addition, the record does not reflect that the Veteran had at least monthly visits to a physician for required care of exacerbations during this period. The Veteran did seek and receive treatment in December 2009 for an asthma exacerbation and again in December 2011; however, she was generally able to manage her symptoms without seeking a physician for required care, to include use of her nebulizer and staying at home to rest, and she reported no hospitalizations for her asthma. As such, the 60 percent criteria are not met during this period. Nevertheless, the Board concludes that the Veteran is entitled to a 60 percent evaluation for her allergy-induced asthma beginning on January 24, 2013. In this regard, the record reflects a history of ongoing asthma symptoms, including breathing difficulty and chronic coughing, which increased in severity. Her symptoms were initially treated with bronchodilators, and later monthly Xolair injections due to the lack of success with the bronchodilators and the Veteran's presentation. The Veteran, her co-workers, and family have credibly reported that this symptomatology has been ongoing and has increased in severity, causing the Veteran to have difficulty on a daily basis. See Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (Veteran competent to report as to symptoms she experiences through her senses, such as shortness of breath and chronic coughing, and their history). Moreover, the record reflects that the Veteran did not have successful results with corticosteroid treatment and reportedly suffered physical side effects in other areas of her body as a result of the cycles she did receive. See February 2010 and July 2011 VA treatment records. During her VA appointment on January 24, 2013, the Veteran was found to have continued asthma symptoms, including always wheezing and development of pulmonary tissue changes due to severe airway inflammation. At that time, the Veteran's pulmonologist indicated that he strongly felt that she needed Anti-IgE therapy, after speculating that she may be a candidate in her previous July 2012 appointment. VA treatment records show that she received these injections on a monthly basis beginning in January 2013. As a point of clarification, the Board notes that the transcript shows that the Veteran reported receiving Xolair injections four times each week; however, this appears to be a misstatement or typographical error based on the remainder of the record and the general guidelines for administration of this treatment. See "How XOLAIR Is Given," http://www.xolair.com/how-xolair-is-given.html (injections typically given every two or four weeks). In any event, this consideration would not change the evaluation now assigned. Based on these considerations, the Board finds that the Veteran's disability picture more nearly approximates the criteria for the 60 percent evaluation for intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids for this time period. See 38 C.F.R. § 4.7. In assigning this staged evaluation based upon the evidence in this case, the Board notes that the exact onset of the Veteran's current symptoms/level of disability cannot be determined with certainty. The earliest that that it can be factually ascertained that the Veteran met the criteria for the 60 percent evaluation is January 24, 2013, which is the date her VA pulmonologist definitively determined that she met the criteria to be placed on a trial of Xolair. In addition, for the entire appeal period, the Veteran has not been shown to have the necessary PFT results, more than one attack per week with episodes of respiratory failure, or the requirement of daily use of systemic high dose corticosteroids or immuno-suppressive medications contemplated in the 100 percent rating criteria. In considering the other potentially applicable diagnostic codes, the Board notes the contentions of the Veteran's representative that the Veteran is entitled to a separate or higher evaluation based on her allergies as related to this service-connected disability. See, e.g., Bd. Hrg. Tr. at 8. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In addition, the Rating Schedule generally prohibits pyramiding (i.e., evaluating the same disability under different diagnostic codes), and the Court has held that pyramiding is disfavored "unless the regulation expressly provides otherwise." Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); 38 C.F.R. § 4.14. However, the Board finds that the assignment of a separate or higher evaluation contemplating the Veteran's allergies and related treatment is not appropriate in this case. As mentioned above, the Veteran is separately service-connected for allergic rhinitis with periodic sinusitis. The record does not suggest that the Veteran's allergies impact her asthma in a manner separate from the symptomatology and functional impairment already contemplated in the evaluation assigned under Diagnostic Code 6602. In fact, the record suggests that her allergy symptoms and treatment (including allergy shots and Nasonex spray) are related to her allergic rhinitis, or, at the minimum, are unrelated to her asthma. See, e.g., July 2010 VA treatment record (noting referral to fee-based allergist following CT maxillofacial scan; history of sinusitis); July 2011 VA treatment record (noting Veteran on Singulair and receiving allergy shots for allergic rhinitis); August 2011 Cape Fear Otolaryngology treatment record (discussing allergy symptoms as related to allergic rhinitis). Moreover, the Veteran has indicated that her allergies and asthma are separate, and that her allergy shots work for her allergy symptoms, so the allergies have no "bearing on [her] asthma." See Bd. Hrg. Tr. at 13. In light of these considerations, a separate evaluation for the allergy-induced asthma by analogy or otherwise, to include based on allergies, is not appropriate at this time. Thus, the Board finds that the preponderance of the evidence is against a finding for an evaluation in excess of 30 percent for the period prior to January 24, 2013, and in excess of 60 percent on or after January 24, 2013, for the Veteran's allergy-induced asthma. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. Gilbert, 1 Vet. App. 49 (1990). In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's allergy-induced asthma is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Indeed, the evaluations contemplate the Veteran's primary complaint of breathing difficulty, as well as the resulting functional impairment, as discussed above. There are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected allergy-induced asthma under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra. ORDER A 30 percent evaluation for allergy-induced asthma for the period prior to January 24, 2013, is granted, subject to the laws and regulations governing the payment of monetary benefits. A 60 percent evaluation for allergy-induced asthma for the period beginning on January 24, 2013, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs