Citation Nr: 1604668 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 10-28 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a rating in excess of 10 percent for rhinitis. 2. Entitlement to a rating in excess of 30 percent for asthma prior to December 23, 2014. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to August 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which continued the 10 and 30 percent ratings assigned respectively for rhinitis and asthma. The claims were remanded by the Board in March 2012 in order to schedule the Veteran for his requested Board hearing. The Veteran and his wife presented testimony at a personal hearing before the undersigned Veterans Law Judge in May 2012. A transcript is of record. The claim was remanded by the Board again in May 2014 for additional development. While the claims were in remand status, the Veteran filed a claim of entitlement to service connection for amyotrophic lateral sclerosis (ALS). Service connection for several disabilities as secondary to the ALS was granted, to include respiratory failure. The RO assigned a 100 percent rating for respiratory failure pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6604, effective December 23, 2014. The RO noted that this disability had previously been rated as asthma pursuant to Diagnostic Code 6604 in conjunction with Diagnostic Code 6602. See April 2015 rating decision. Given the foregoing, the Board must determine whether the Veteran is entitled to a rating in excess of 30 percent for the service-connected asthma prior to December 23, 2014; the issue has been recharacterized as reflected on the title page. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. There is no evidence at any time during the appellate period that the Veteran's service-connected rhinitis is manifested by polyps. 2. At no time prior to December 23, 2014, was the Veteran's asthma manifested by FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, 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; or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for rhinitis have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.97, Diagnostic Code 6522 (2015). 2. The criteria for a rating in excess of 30 percent for asthma have not been met prior to December 23, 2014. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.97, Diagnostic Codes 6602 and 6604 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100%" based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by a letter dated in December 2008. VA has also obtained service treatment records; assisted the appellant in obtaining evidence; afforded the appellant physical examinations; obtained medical opinions as to the severity of his disabilities; and afforded the appellant the opportunity to give testimony. There was also substantial compliance with the Board's May 2014 remand instructions, as VA treatment records from the Mike O'Callaghan Federal Medical Center located at Nellis Air Force Base and the VA Medical Centers in Walla Walla and Las Vegas were obtained; a request was sent to the Social Security Administration (SSA) for all medical and legal documents pertaining to the Veteran's application for benefits; and the RO scheduled the requested VA examinations. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that SSA provided a response that no records existed and that the Veteran was unable to report for his scheduled VA examinations due to the nature of his ALS illness. See e.g., November 2015 informal hearing presentation. The Board also notes that the Veteran submitted an authorization for the release of records from a private facility. The authorization expired before the RO could request the records and the Veteran was asked to provide an updated VA Form 21-4142, which he did, but which was incomplete. The RO then asked for a complete form in August 2015, but the Veteran failed to reply. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). As VA has substantially complied with the notice and assistance requirements, the appellant is not prejudiced by a decision on the claims at this time. Increased Ratings Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2015). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. Service connection was originally established for moderate chronic obstructive pulmonary disease (COPD) pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6603, with a 30 percent rating effective August 5, 1975. See May 1976 rating decision. The rating was decreased to 10 percent effective August 1, 1978, in a May 1978 rating decision. In a May 1991 rating decision, a separate noncompensable evaluation was established for rhinitis, which had previously been considered part of the COPD, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6501, effective July 25, 1989. The rating was increased to 10 percent effective January 6, 1995, in a March 1996 rating decision. The moderate COPD disability was recharacterized as asthma in a March 2002 rating decision. In a January 2003 rating decision, the rating assigned for asthma was increased to 30 percent effective January 23, 2001. As noted above, the July 2009 rating decision that is the subject of this appeal continued the 10 and 30 percent ratings assigned respectively for rhinitis and asthma. Also noted above, asthma has been recharacterized as respiratory failure secondary to ALS effective December 23, 2014, which is also when a 100 percent disability rating went into effect. Given that the medical evidence establishes the respiratory failure is due to ALS, not asthma, the Board must only consider whether the Veteran is entitled to a rating in excess of 30 percent for asthma prior to December 23, 2014. The July 2009 rating decision reflects that the 10 and 30 percent ratings currently assigned for rhinitis and asthma, respectively, are pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6501 and 6522 (rhinitis) and Diagnostic Code 6602 and 6604 (asthma). The Board notes that the rating criteria found at 38 C.F.R. § 4.97 were amended effective October 7, 1996, prior to the period being considered in this appeal. For reasons that are not clear, the RO has continued to evaluate the service-connected rhinitis under Diagnostic Code 6501, even though the October 1996 amendments did away with this code. Given the foregoing, the Board will not consider whether the Veteran is entitled to a rating in excess of 10 percent for rhinitis pursuant to Diagnostic Code 6501. The Board notes at this juncture that service connection has also been established for chronic maxillary sinusitis and pansinusitis with headaches and right eye intraorbital crepitus status post multiple failed sinus surgeries. Complaints associated with this disability will not be considered in this decision. The Veteran contends that he is entitled to ratings in excess of those currently assigned for rhinitis and asthma because of thinning nasal walls; problems with bleeding around the nose when there is no wound; infection spreading and causing dizziness and short attention span; and nasal obstruction. He also reports that surgeries associated with the rhinitis have caused scar tissue problems; that he has problems breathing due to bone density problems; that his sensitivity is so great that he can only live in a few places due to having to avoid certain climates; that he has a burning sensation in his nose; and that he has ongoing nasal infections. Diagnostic Code 6522 provides the rating criteria for allergic or vasomotor rhinitis. A 10 percent rating is assigned for rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is assigned for rhinitis with polyps. Diagnostic Code 6602 provides the rating criteria for bronchial asthma. A 10 percent rating is assigned where pulmonary function testing (PFT) shows 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 rating is assigned where PFT shows 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 rating is assigned where PFT shows 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 where PFT shows 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. Diagnostic Code 6604 provides the rating criteria for COPD. A 10 percent rating is assigned where PFT shows FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. A 30 percent rating is assigned where PFT shows FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 60 percent rating is assigned where PFT shows FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned where PFT shows FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. The medical evidence associated with the electronic files is voluminous. The Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). The Veteran underwent a VA nose, sinus, larynx and pharynx examination in July 2008 to evaluate his rhinitis. The Veteran reported he had undergone five nasal and ENT surgeries between 1987 and 2007, which were not successful. He complained of constant nasal congestion and sinus pressure. Current rhinitis symptoms included nasal congestion, excess nasal mucous, itchy nose, watery eyes, and sneezing. Constant breathing difficulty and hoarseness were noted. Physical examination revealed 30 percent left nasal obstruction and 10 percent right nasal obstruction. There were no nasal polyps. There was also no septal deviation; permanent hypertrophy of turbinates from bacterial rhinitis; rhinoscleroma; tissue loss, scarring or deformity of the nose; or evidence of Wegener's granulomatosis or granulomatous infection. The Veteran also underwent a VA respiratory system examination in July 2008 to evaluate his asthma. He reported mild wheezing on a daily basis, but was not taking any medications. The Veteran also reported frequent dyspnea on mild, moderate and severe exertion. PFT yielded non-conclusive result. The Veteran underwent a VA nose, sinus, larynx and pharynx examination in January 2009, at which time he complained of some difficulty breathing, much worse through the nose and much worse at night. Physical examination of the nose revealed it was minimally erythematous and desiccated. The Veteran also underwent a VA respiratory system examination in January 2009, at which time physical examination revealed that movement of the chest was normal and equal on both sides with no egophony noted. Air entry appeared to be equal on both sides; the Veteran had bilateral scattered wheezes with forced expiration. There were also a few scattered rhonchi present. The assessment was asthma. PFT was ordered. The January 2009 PFT revealed FVC of 2.82 liters, which was 64.7 percent of his predicted value. FEV1 was 62.1 percent of his predicted value. FEV1/FVC ratio was 77.6 consistent with normal spirometry. Following bronchodilator therapy, FEV1 improved by 13 percent, which is a significant response. Diffusion capacity was within normal limits. The assessment was obstructive and restrictive lung disease with significant bronchodilator response. In a June 2009 addendum, the January 2009 VA examiner clarified that the Veteran had no nasal polyp and no occlusion of the nasal passages as documented on a December 2008 CT scan. The Veteran underwent a VA nose, sinus, larynx and pharynx examination in July 2009, at which time he had the same symptoms and complaints related to his rhinitis as in the July 2008 and January 2009 examinations, though he reported the nose obstructions were more severe. Physical examination revealed 40 percent left nasal obstruction and 20 percent right nasal obstruction. There were no nasal polyps. There was also no septal deviation; permanent hypertrophy of turbinates from bacterial rhinitis; rhinoscleroma; tissue loss, scarring or deformity of the nose; or evidence of Wegener's granulomatosis or granulomatous infection. On PFT conducted by VA in August 2010, it was noted that the Veteran was unable to produce acceptable and reproducible spirometry data and was unable to obtain end of test criteria. The impression was that spirometry did not meet ATS criteria for acceptability. The Veteran underwent VA examinations in April 2011 to evaluate his rhinitis and asthma. During the April 2011 VA respiratory system examination, a pulmonary history of near constant nonproductive cough, wheezing, dyspnea on mild exertion, and asthma was recorded. The Veteran had less than one clinic visit per year for asthma exacerbation, and less than one acute attack of asthma per year. Pulmonary examination revealed no evidence of abnormal breath sounds. During the April 2011 VA nose, sinus, larynx and pharynx examination, the Veteran reported a history of perennial nasal allergy. Current rhinitis symptoms included nasal congestion and excess nasal mucous. He also reported constant breathing difficulty and cough. Examination of the nose revealed normal nasal vestibule and septum, boggy turbinates, and no obstruction or polyps. There was also no septal deviation; rhinoscleroma; tissue loss, scarring or deformity of the nose; or evidence of Wegener's granulomatosis or granulomatous infection, though the examiner did report permanent hypertrophy of turbinates from bacterial rhinitis. In May 2011, a private PFT performed by Red Rock Medical Group revealed FVC of 2.82 liters, which was 66.3 percent of his predicted value, and an FEV1 of 2.22 liters, which was 64.7 percent of his predicted value. The FEV1/FVC ratio was 78.6 percent. The FEV1 was consistent with mild obstructive ventilator impairment. Following bronchodilator therapy, FEV1 improved by 12 percent, which was considered a significant response. Spirometry results suggested a mild restrictive lung defect as the Veteran was found to have a TLC that was reduced to 4.51 liters, which is 70.3 percent of his predicted value. The diffusion capacity was within normal limits. There appeared to be a significant response to one time bronchodilator use. A November 2013 VA treatment record indicated that the Veteran's nares were clear bilaterally. A PFT was performed by VA in July 2014. FEV1 was 1.26 liters and FEV1/FVC was 76 percent. Based on the FEV1, there was moderate obstructive lung defect. The airway obstruction was confirmed by the decrease in flow rate at peak flow and flow at 50 percent and 75 percent of the flow volume curve. An additional restrictive lung defect could not be excluded by spirometry alone. The preponderance of the evidence of record does not support the assignment of a rating in excess of 10 percent for the service-connected rhinitis at any time during the appellate period. This is so because there is no evidence the Veteran had nasal polyps at any time during the period of time under consideration in this appeal. See VA and private treatment records; see also VA examination reports. The Board also notes that by his own admission, the Veteran denies having any problem with polyps as a result of his rhinitis. In the absence of evidence that the Veteran's service-connected rhinitis is manifested by polyps, the next higher (30 percent) rating provided under Diagnostic Code 6522 is not for application in this case and the claim must be denied. The preponderance of the evidence of record also does not support the assignment of a rating in excess of 30 percent prior to December 23, 2014, for the Veteran's service-connected asthma. This is so because at no time prior to December 23, 2014, was the Veteran's asthma manifested by FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, 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; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Rather, at worst, the available PFTs reveal FEV-1 of 64.7 percent, FEV-1/FVC of 76 percent, and diffusion capacity was within normal limits. See PFTs dated January 2009, May 2011 and July 2014. In addition, review of the Veteran's private and VA treatment records do not reveal that he had at least monthly visits to a physician for required care of exacerbations or intermittent courses of systemic corticosteroids. In fact, during the July 2008 VA respiratory examination the Veteran denied taking any medication for his asthma and during the April 2011 VA respiratory examination, it was noted that he had less than one clinic visit per year for asthma exacerbation, and less than one acute attack of asthma per year. For these reasons, the next higher (60 percent) rating provided under Diagnostic Codes 6602 and 6604 is not for application in this case and the claim must be denied. In sum, the preponderance of the evidence supports the currently-assigned 10 percent disability rating for rhinitis and the currently-assigned 30 percent disability rating for asthma prior to December 23, 2014. As the preponderance of the evidence is against the claims, the statutory provisions regarding resolution of reasonable doubt are not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2015). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2015). 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. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's service-connected respiratory disability picture is not so unusual or exceptional in nature as to render the 10 percent (rhinitis) and 30 percent (asthma) ratings assigned inadequate at any time during the period on appeal. The Veteran's service-connected respiratory disabilities are evaluated under the schedule of ratings for the respiratory system, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology involving both rhinitis and asthma. 38 C.F.R. § 4.97. The Veteran's rhinitis is manifested by nasal obstruction, but no polyps, and the Veteran's asthma is manifested by wheezing and specific findings on PFT. When comparing the Veteran's respiratory disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's rhinitis symptoms are more than adequately contemplated by the 10 percent disability rating assigned, and that his asthma symptoms are more than adequately contemplated by the 30 percent rating assigned prior to December 23, 2014. Ratings in excess of those currently assigned to the service-connected rhinitis and asthma are provided for certain manifestations of those disabilities, but the medical evidence of record did not demonstrate that such manifestations were present in this case. The criteria for the 10 and 30 percent disability ratings assigned to rhinitis and asthma, respectively, during the time frame being considered in this appeal more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. ORDER A rating in excess of 10 percent for rhinitis is denied. A rating in excess of 30 percent for asthma is denied prior to December 23, 2014. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs