Citation Nr: 1603192 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 11-05 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to extraschedular consideration for service-connected bronchial asthma, currently rated 30 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H.W. Walker, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to November 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied an increased rating. In February 2013, the Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. In April 2014, the Board denied a rating in excess of 30 percent for bronchial asthma and denied extraschedular consideration for the same. The Veteran appealed the April 2014 Board decision to the Court of Appeals for Veterans Claims (Court). In a July 2015 Memorandum Decision (single judge), the Court vacated the portion of the Board's decision that found that the Veteran was not entitled to extraschedular consideration for his bronchial asthma. The Board also denied a schedular rating in excess of 30 percent for his bronchial asthma, but this portion of the decision was affirmed by the Court. As such, the only issue remaining before the Board is noted on the cover page of this decision. The case has since been returned to the Board for adjudication consistent with the July 2015 Memorandum Decision. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDING OF FACT The probative evidence of record does not show that the Veteran's service-connected bronchial asthma is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSION OF LAW Referral for extraschedular consideration is not warranted in this case. 38 C.F.R. § 3.321(b) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in a February 2010 letter, prior to the date of the issuance of the appealed July 2010 rating decision. The February 2010 letter explained what information and evidence was needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded VA examinations in March 2010 and February 2012. The Board finds these examination reports to be thorough and consistent with contemporaneous medical records. The examinations in this case are adequate upon which to base a decision with regards to this claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Extraschedular Consideration In its Memorandum Decision, the Court found that the Board failed to provide adequate reasons and bases for declining to refer the Veteran's increased rating claim for bronchial asthma for extraschedular consideration. It noted the Board failed to discuss whether the rating criteria adequately addressed the Veteran's symptomatology and disability level. It found that the Board failed to compare the level of symptomatology and severity of the Veteran's asthma with the established rating criteria. Thus, the Board's statement of reasons and bases for extraschedular referral was inadequate. The Veteran is currently in receipt of a 30 percent for his bronchial asthma. Again, a higher schedular rating was denied by the Board in its April 2014 decision, and the Court affirmed this denial. The issue remaining before the Board is whether the Veteran's bronchial asthma warrants referral for extraschedular consideration. For the reasons listed below, the Board finds referral is not warranted. Under Diagnostic Code 6602, bronchial asthma with FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent predicted, or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication warrants a 30 percent rating. Bronchial asthma 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 warrants a 60 percent rating. Bronchial asthma with FEV-1 that is 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 warrants a maximum 100 percent rating. Post-bronchodilator studies are required when pulmonary function testing (PFT) is conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96 (2015). When evaluating a restrictive lung disability based on PFTs, VA is to use the post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d) (5) (2015). In those cases, VA is to use the pre-bronchodilator values for rating purposes. Id. If the FEV-1 and FVC values are both greater than 100 percent, then VA may not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d) (7) (2015). Ratings for coexisting respiratory conditions such as chronic bronchitis will not be combined with each other; instead, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (2015). The Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2015). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bronchial asthma is inadequate. A comparison between the level of severity and symptomatology of the Veteran's asthma with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology with respect to the symptoms he experiences. Specifically, the Veteran primarily reports orthopnea, breathing problems triggered by cold/hot weather, shortness of breath after walking one city block, monthly asthmatic attacks and has needed to visit a physician to control the attacks as often as 4 times per year, respiratory infections with antibiotic use, daily inhalational oral bronchodilator therapy, daily inhalational anti-inflammatory medication, additional medications used to control the frequency of his asthma attacks, borderline obstructive defect (compatible small airway disease), and increased wheezing despite medication use. The 2010 VA examiner noted that the Veteran's usual occupation as a welder is limited by asthma and the fume inhalation, and he is limited recreationally as he cannot play exertional sports. The 2012 VA examiner found that the Veteran's asthma symptoms did not require the use of oral or parenteral corticosteroid medications, but required the daily use of inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. The examiner also noted that the frequency of physician visits for required care of exacerbations over the past 12 months was less frequently than monthly. Although the Veteran maintains that his asthma impacts his work as a welder, the 2012 examiner opined that the Veteran's asthma did not impact his ability to work. For reference purposes, the Board notes that by its own language, Diagnostic Code 6602 indicates that bronchial asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational, systemic therapy. See LaPointe v. Nicholson, 21 Vet. App. 411 (2006). (noting that "Diagnostic Code 6602 clearly makes a distinction between the intermittent or daily use of systemic corticosteroids and the intermittent or daily use of inhaled corticosteroids"). Indeed, the Court in LaPointe affirmed the Board's previous finding that Diagnostic Code 6602 "requires, among other things, the systemic use of oral or parenteral, not inhaled, corticosteroids to qualify for a rating higher than 30[%]." See Id. [The Board acknowledges that LaPointe is a non-precedential decision, but notes that a non-presidential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)]. Ultimately, the Board finds that the Veteran's asthma symptoms are most analogous to those described under the criteria listed for a 30 percent rating under Diagnostic Code 6602. Importantly, this criteria considers the use of inhaled bronchodilator therapy or anti-inflammatory medication. Although the Veteran uses both inhaled bronchodilator therapy and anti-inflammatory medication for treatment, and has continued breathing problems even with additional medications, the Board cannot find that his disability picture rises to a level considered "exceptional." The rating criteria for a 30 percent rating specifically contemplates treatment with inhaled medications, and a higher rating is available only for symptoms requiring courses of systemic corticosteroid, a lower FEV-1 of FEV1/FVC, or monthly visits to a physician for treatment for exacerbations. Viewing the Veteran's symptoms as a whole, the Board finds that the Veteran's disability is neither exceptional, nor is the available schedular rating for his asthma inadequate. The Board has considered the Veteran's specific symptoms, but finds that they are not indicative of an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. He has some exacerbations requiring physician involvement, but it is certainly not monthly or less. He reported that his asthma makes it difficult to work as a welder, but during his hearing, he reported that he is still employed. The Board finds that although his asthma appears to impact his work as a welder, it is not "marked" inference with his employment, nor do the clinical records show that he is hospitalized frequently for his asthma. In fact, the Veteran reported that he is able to take precautions to avoid having to seek emergency treatment for his asthma symptoms. See February 2012 VA examination report. Thus, the Veteran's current schedular ratings are adequate to fully compensate him for his disability on appeal. Under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Notably, the Veteran is also service connected for tinnitus. Neither the Veteran nor his representative has indicated any specific service-connected disability which is not captured by the schedular evaluation of the Veteran's individual service-connected conditions. After applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Finally, the Board has considered whether this appeal raises a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). The Board notes that during his February 2013 hearing, the Veteran reported he was currently working, and the record has not shown that he is unemployable due to his service-connected asthma. Indeed these records show that his asthma may impact his employment, but there is no evidence suggesting that he is unemployable solely due to his service-connected asthma. Therefore, the Board finds that this appeal does not encompass a TDIU claim at this time. ORDER Referral for extraschedular consideration for service-connected asthma is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs