Citation Nr: 1336544 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 08-39 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial schedular rating in excess of 30 percent for asthma. 2. Entitlement to an initial rating in excess of 30 percent for asthma on an extraschedular basis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from May 1990 to June 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's claim has subsequently been transferred to the RO in Atlanta, Georgia. In October 2011, the Board remanded the Veteran's appeal, for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). As a result of the evidence relating to the effect the Veteran's service-connected disability has had on his ability to engage in substantially gainful employment, the Board finds that his increased rating claim includes a claim for TDIU, and that this claim has therefore been added as an additional claim entitled to current appellate review. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes the Veteran was previously denied entitlement to service connection for TDIU in a February 2008 rating decision by the RO in Columbia, South Carolina. The Veteran was afforded a videoconference hearing at the RO before the undersigned Acting Veterans Law Judge sitting at Washington, DC. The transcript is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's asthma is not manifested by an FEV-1 of 55 percent predicted or less, an FEV-1/FVC of 55 percent or less, at least monthly visits to a physician for required care of exacerbation, more than one attack per week with episodes of respiratory failure, or treatment with systemic (oral or parenteral) corticosteroids or immuno-suppressive medications. CONCLUSION OF LAW The criteria for establishing entitlement to an initial disability evaluation in excess of 30 percent for asthma have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.7, 4.97, Diagnostic Code 6602 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, and the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The Veteran was provided VCAA notice in an April 2007 letter. This letter notified the Veteran of what information and evidence is needed to substantiate a claim for service connection, and what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. Furthermore, it was sent to the Veteran prior to the rating decision. However, the appeal arises from the initial award of service connection. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records. Additionally, the Veteran was provided with VA examinations in May 2007 and November 2011. With respect to VA examinations, the Board notes that 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 most recent VA examination was provided in November 2011. The examination report is based on review of the claims file, taking a relevant history from the Veteran, and clinical evaluation of the Veteran. The examination report is adequate; the information provided by the VA examiner is supported by a thorough history, fully reasoned explanations and clinical findings. A new examination is not required as the examiner's opinions are well-supported and the Veteran has not described a worsening in the severity of his symptoms. Additionally, the Board finds there has been substantial compliance with its October 2011 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). In March 2011, the Veteran had the opportunity to testify at a Board hearing via videoconference over which the undersigned presided. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the undersigned clarified the issue on appeal, inquired as to the etiology of the Veteran's asserted symptoms, and asked questions that ensured no evidence was overlooked. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Byrant. All relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim decided herein. Essentially, all available evidence necessary to substantiate the claim and reach an accurate rating determination has been obtained. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Merits of the Claim 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). Here the disability has not significantly changed and a uniform evaluation is warranted. The Veteran contends that he is entitled to an initial disability evaluation in excess of 30 percent for his service-connected asthma. For historical purposes, the Veteran was originally granted service connection for this condition in a June 2007 rating decision. A 30 percent disability evaluation was assigned under Diagnostic Code 6602, effective as of March 15, 2007. A timely notice of disagreement was received from the Veteran in July 2007, but the 30 percent disability evaluation was continued in a December 2008 Statement of the Case. The Veteran appealed this decision to the Board in December 2008. The Veteran's asthma is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.91, Diagnostic Code 6602 (2013), which pertains to bronchial asthma. Under Diagnostic Code 6602, a 30 percent evaluation is warranted for bronchial asthma for the following: forced expiratory volume (FEV-1) of 56 to 70 percent predicted, or; FEV-1/ forced vital capacity (FVC) of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation requires 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 rating is assigned for 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. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2013). The post-bronchodilator findings for these pulmonary function tests (PTF) are the standard in pulmonary assessment. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation). However, if the post-bronchodilator results are poorer than the pre-bronchodilator results, then the pre- bronchodilator results are used for rating purposes. See 38 C.F.R. § 4.96(d)(5) (2013). The Board has also considered the Veteran's statements that his disability is worse than the current ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In August 2006, the Veteran was treated by Dr. K.L.S. at the Atlanta Allergy and Asthma Clinic where he reported he has been to the emergency room for his asthma and has received a steroids or steroid shot once in the past 12 months. He stated he often uses Albuterol, Singular and Advair. A PFT revealed the Veteran had FEV-1 of 66 percent before bronchodilator and 89 percent after bronchodilator. The FEV-1/FVC was 78 percent before bronchodilator and 88 percent after bronchodilator. In a March 2007 letter from Dr. K.L.S., the Veteran's diagnosis for chronic allergy rhinitis and persistent asthma was confirmed. Dr. K.L.S. noted the Veteran was employed as an electrician and his health declined while working in this type of environment. As a result of his worsening symptoms, the Veteran has been forced to cut back from full-time to part time and every time he stops his electrical work, his symptoms have improved. According to a May 2007 VA examination, the Veteran described he has orthopnea and dyspnea at rest. The Veteran stated he has asthmatic attacks weekly and needs to visit a physician to control the attacks as often as twice a month. He requires antibiotics almost constantly as he contracts infection easily from his respiratory condition. He has not suffered from an episode of respiratory failure requiring respiration assistance from a machine. He requires inhalation of anti-inflammatory medication, steroid therapy daily with dosage of 10 mg per day, bronchodilator by inhalation daily, bronchodilator by mouth daily and a home nebulizer. Due to his symptoms he is unable to do any strenuous labor or work involving dusty conditions or chemical aerosols. Chest x-ray results were within normal limits. A PFT revealed the Veteran had FEV-1 of 56 percent before bronchodilator and 69 percent after bronchodilator. In an April 2010 letter from the Veteran's wife, A.C., she stated the Veteran's symptoms of wheezing and other respiratory problems occur daily. She stated the Veteran "consistently complains about not being able to breathe properly. Because of this, he is totally dependent on his inhaler." She stated his doctors have prescribed him multiple inhalers which on occasion do not help. In March 2011, the Veteran submitted a private treatment record of his PFT results: Test Date FEV-1 (percent) FEV-1/FVC (percent) March 2011 63 111 February 2011 82 96 October 2010 76 92 September 2010 59 81 April 2010 75 80 September 2009 96 92 March 2009 67 79 January 2009 85 87 October 2008 94 95 August 2007 56 74 April 2007 57 84 March 2007 87 93 August 2006 66 78 The Veteran presented testimony on personal hearing in March 2011 to the effect that his asthma had gotten worse and that he was unable to engage in his usual work as an electrician. He stated that he had frequent asthmatic attacks that lasted from 30 minutes to an hour, and that he was awakened at night on account of his symptoms. He related that he took medication twice a day. The Veteran testified that his asthma symptoms had led to a decline in the quality of his life. During the Veteran's hearing, the representative noted that the Veteran had not had a VA compensation and pension examination since 2007. Finally, in November 2011 the Veteran was afforded a VA respiratory conditions examination, where the Veteran stated he had an asthma attack every other day and sees his pulmonologist, on average, twice a year. He stated he has not had any emergency room visits in the past year and does not have a home nebulizer for use. He stated he uses his rescue inhaler, Ventolin every other day, Symbicort on a daily basis and is prescribed prednisone about once a year. The Veteran requires the use of oral or parenteral corticosteroid medication once in the past twelve months. The Veteran's respiratory condition requires the use of inhaled medication of inhalation bronchodilator therapy intermittently and inhalation anti-inflammatory medication daily. His condition requires the use oral bronchodilator intermittently and the use of antibiotics very infrequently. The Veteran has a history of asthma attacks in the past twelve months which required physician visits for required care of exacerbation less frequently than monthly. The Veteran has never experienced any episodes of respiratory failure. The examiner noted the Veteran's FEV-1 result of 63 percent, conducted in March 2011. The examiner stated the Veteran has not been employed since 2005. He was an electrician and stated that his pulmonologist recommended that he stop doing electrical work due to his condition which exacerbated his asthma. His asthma was better now that he was not doing electrical work. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 30 percent for his service-connected asthma at any time during the pendency of this claim. The Veteran's service-connected bronchial asthma does not more closely approximate a FEV-1 of 40 to 55 percent predicted value or FEV-1/FVC of 40 to 55 percent at any time during the appeal period. In fact, the Veteran's FEV-1 has never been lower than 56 percent and his FEV-1/FVC has never been lower than 76 percent. The evidence also does not show the Veteran meets the criteria for a 100 percent disability rating (showing that the Veteran's FEV-1 was less than 40 percent predicted, FEV-1/FVC was less than 40 percent) at any time during the appeal period. The preponderance of the evidence reveals that the Veteran's asthma has not resulted in at least monthly visits to a physician for required care of exacerbations or at least three or more intermittent courses of systemic (oral or parenteral) corticosteroids during a twelve month period. As noted above, the VA examiner in November 2011 indicated that the Veteran was prescribed prednisone once a year. The overall evidence of record also does not show that the Veteran had one or more attacks per week that resulted in episodes of respiratory failure. Accordingly, the Veteran's service-connected asthma more closely approximates a 30 percent disability rating for the entire period of appeal. The Board has also considered the Veteran's lay statements regarding the severity of his disability. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for his asthma; however, disability ratings result from the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. While the Board finds the Veteran competent to provide evidence as to his symptoms and the Board finds his statements credible, the medical findings, which directly address the criteria under which the service-connected disability are considered more probative than his assessment of the severity of his disability; particularly as he does not address the findings necessary to evaluate the disabilities under the rating criteria. See Jandreau, 492 F. 3d at 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, the preponderance of the more probative evidence is against the claim, and the Veteran's claim for a higher initial evaluation on a scheduler basis is denied. There is also no basis for a "staged" rating pursuant to Fenderson or Hart. ORDER Entitlement to an initial schedular rating in excess of 30 percent for asthma is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), it was held that a claim for a TDIU is part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is raised by the record. As previously stated, according to the November 2011 VA examination, the examiner stated the Veteran has not been employed since 2005 and that the Veteran reported his pulmonologist recommended that he stop doing electrical work due to his condition which exacerbated his asthma. His asthma has improved since he has stopped working. Therefore, pursuant to Rice, the Board is assuming jurisdiction over the TDIU claim, since the issue of unemployability is raised by the record. The Board further finds that this issue is inextricably intertwined with the remaining claim for a rating in excess of 30 percent for service-connected asthma on an extraschedular basis. Generally, a veteran will be entitled to a TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities - provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). When the percentage standards of 38 C.F.R. § 4.16(a) have not been met, VA must consider assigning an extra-schedular rating. 38 C.F.R. § 4.16(b). If the evidence demonstrates that the veteran is unemployable by reason of his service-connected disabilities, but fails to meet these percentage standards, the claim shall be submitted to the Director of Compensation and Pension (C&P) Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The recent examination does not contain an explicit opinion as to whether the Veteran's unemployment is attributable to his service-connected disability or whether the disability would preclude all gainful employment consistent with his education and occupational experience. Consequently, the Board finds that the Veteran should be afforded an examination to ascertain whether this matter should be referred for extraschedular consideration under either 38 C.F.R. § 3.321(b) or 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran about (1) the information and evidence not of record that is necessary to substantiate his claim for a TDIU; (2) the information and evidence that VA will seek to obtain on his behalf; and (3) the information or evidence that he is expected to provide. A copy of this notification must be associated with the claims file. 2. Copies of updated treatment records should be obtained and added to the claims file. 3. Following completion of the above, schedule the Veteran for an appropriate examination to determine whether it is at least as likely as not (50 percent or greater probability) that his service-connected asthma prevents the Veteran from obtaining or retaining gainful employment that the Veteran's education and occupational experience would otherwise permit him to undertake. The examiner should review the claims folders and note such review in the examination report. The examiner should provide a rationale for the opinion. 4. Adjudicate the remaining issues of entitlement to TDIU and a rating in excess of 30 percent for asthma on an extraschedular basis. If the benefit sought remains denied, the Veteran and his representative must be issued a supplemental statement of the case and provided an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs