Citation Nr: 1611521 Decision Date: 03/22/16 Archive Date: 03/29/16 DOCKET NO. 09-43 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating (or evaluation) in excess of 30 percent for asthma for the period from July 31, 2009 to April 8, 2011. 2. Entitlement to an increased disability rating in excess of 10 percent for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1984 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied a disability rating in excess of 30 percent for asthma, and a rating in excess of 10 percent for headaches. In a July 2012 rating decision, the RO granted a 60 percent disability rating for asthma for the period (or "stage") beginning April 8, 2011. The Veteran has indicated his satisfaction with the 60 percent rating for the period from April 8, 2011, but has maintained his appeal for an increased rating for the period from July 31, 2009 to April 8, 2011, that is, for the period for which only a 30 percent rating was assigned. See November 2012 statement; AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). Thus, the Board has characterized the asthma rating issue as shown on the Title page. The Board has reviewed both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence. In July 2013, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) in order to obtain VA and private treatment records, and provide the Veteran with a VA migraine headaches examination. Further discussion of the AOJ compliance with the July 2013 Board Remand directive is included in the Duties to Notify and Assist and Remand section below. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A November 2015 VA Form 8 shows that the issue of increased rating for the service-connected right knee disability was certified to the Board; however, the record indicates that the RO is in the process of scheduling this issue for a Board videoconference hearing as per the Veteran's request. See April 2015 VA Form 9. Accordingly, the issue of increased rating for the service-connected right knee disability will be decided in a later Board decision after a Board videoconference hearing is scheduled by the RO. The issue of increased rating for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. For the rating period from July 31, 2009 to April 8, 2011, the asthma disability required intermittent courses of systemic corticosteroid treatment. 2. For the rating period from July 31, 2009 to April 8, 2011, the asthma disability did not manifest in a FEV-1 of less than 40 percent predicted, a FEV-/FVC of less than 40 percent, more than one attack per week with episodes of respiratory failure, or required daily use of systemic high dose corticosteroids or immunosuppressive medications. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a disability rating of 60 percent, and no higher, for the service-connected asthma disability have been met for the rating period from July 31, 2009 to April 8, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.97, Diagnostic Code 6602 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increased rating, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). With regard to the issue of increased rating for the service-connected asthma disability, the RO issued an August 2009 preadjudicatory notice letter to the Veteran, which met the VCAA notice requirements. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issues adjudicated herein. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records (STRs), post-service VA and private treatment records, the September 2009 VA examination report, and the Veteran's written statements. VA examined the asthma disability in September 2009. The VA examiner reviewed the claims file, interviewed the Veteran regarding past and present symptomatology, provided clinical observations, and reported on the relevant rating criteria. For these reasons, the Board finds that the above-referenced VA examination report is adequate to decide the issue of increased rating for the service-connected asthma disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the foregoing, the Board finds that 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 in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2015). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that the asthma disability did not increase during the rating period on appeal, so does not warrant staged rating, as explained below. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. In this case, the weight of the evidence demonstrates that the asthma disability did not undergo an increase within the one year period before the claim was filed with VA in July 2009, as explained below. Pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2015). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has reviewed all the evidence in the Veteran's claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Increased Disability Rating Analysis for Asthma Disability The Veteran is in receipt of a 30 percent disability rating for the service-connected asthma under Diagnostic Code (DC) 6602 for the rating period from July 31, 2009 to April 8, 2011. 38 C.F.R. § 4.97. The Veteran is seeking a higher rating for the asthma disability for the increased rating period from July 31, 2009 to April 8, 2011. The Veteran contends that he was prescribed oral corticosteroids for the asthma disability during this period. See, e.g., November 2012 Veteran statement. Under DC 6602, a 30 percent disability rating is warranted where pulmonary function tests (PFTs) show any of the following: FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. A 60 percent disability rating contemplates PFTs that show any of the following: FEV-1 of 40 to 55 percent predicted, 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 disability rating is warranted where PFTs show any of the following: a FEV-1 of less than 40 percent predicted, a FEV-/FVC of less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immunosuppressive medications are required on a daily basis. 38 C.F.R. § 4.97. PFT results are generally reported before and after the administration of bronchodilator therapy. VA regulations instruct that post-bronchodilator results be used when considering PFT criteria for ratings under DCs 6600, 6603, 6604, 6825-6833, and 6840-6845. See 38 C.F.R. § 4.96(d)(4) (2015). There are no regulations identifying whether pre- or post-bronchodilator results should be used when determining disability ratings under DC 6602. As 38 C.F.R. § 4.96(d)(4) does not explicitly apply to DC 6602, the Board will use the PFT results that allow the most favorable disability rating to the Veteran. After a review of the lay and medical evidence of record and resolving doubt in the Veteran's favor, the Board finds that a disability rating of 60 percent for the service-connected asthma disability is warranted for the rating period from July 31, 2009 to April 8, 2011. The record reflects that the Veteran had prescriptions for corticosteroids in August 2009 (Symbicort), November 2009 (Budesonide), January 2010 (Methylprednisolone), May 2010 (Methylprednisolone), November 2010 (Budesonide), January 2011 (Symbicort, Budesonide, and Methylprednisolone), and February 2011 (Symbicort, Budesonide, and methylprednisolone). Resolving reasonable doubt in the Veteran's favor, the Board finds that this evidence more nearly approximates an asthma disability requiring intermittent courses of systemic corticosteroids, so warrants a 60 percent disability rating under DC 6602 for the rating period from July 31, 2009 to April 8, 2011. 38 C.F.R. § 4.97. The Board has reviewed all the evidence of record, lay and medical, and finds that, for the initial rating period from July 31, 2009 to April 8, 2011, the evidence did not meet or more nearly approximate the criteria for a higher 100 percent disability rating for asthma. 38 C.F.R. § 4.97, DC 6602. The Veteran indicated that a 60 percent disability rating is warranted based on intermittent use of corticosteroid and effectively limited the appeal by indicating agreement to a 60 percent disability rating. See November 2012 Veteran statement. A fair reading of the November 2012 Veteran statement demonstrates that the assignment of a 60 percent disability rating for the period from July 31, 2009 to April 8, 2011 satisfies the Veteran's appeal as to this issue for this period. See A.B., 6 Vet. App. at 39 (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). Moreover, at no point during the appeal period did the Veteran's asthma require daily use of systemic high dose corticosteroids or immunosuppressive medications, or manifest in a FEV-1 of less than 40 percent predicted, a FEV-/FVC of less than 40 percent, or more than one attack per week with episodes of respiratory failure. The September 2009 VA examination shows a post-bronchodilator FEV-1 of 79.5 percent predicted, and a pre-bronchodilator FEV-1/FVC of 77 percent. See also June 2009 Puritan-Bennett PFT report. The Board has also considered rating under other pertinent diagnostic criteria. Diagnostic Codes 6600-6604 are classified under VA's Rating Schedule as Diseases of the Trachea and Bronchi. 38 C.F.R. § 4.97. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 6601 (bronchiectasis), 6603 (pulmonary emphysema), and 6604 (chronic obstructive pulmonary disease) are not applicable in this case, as the evidence does not show that the Veteran has been diagnosed with any of those conditions or anything similar; therefore, rating the asthma under other diagnostic criteria is not warranted. Based on the foregoing, the preponderance of the evidence is against the award of an initial disability rating in excess of 60 percent for asthma for the rating period from July 31, 2009 to April 8, 2011. As a preponderance of the evidence is against the award of a higher rating, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In this regard, the Board finds that the weight of the evidence demonstrates that the asthma disability did not undergo an increase within the one year period before the claim was filed with VA in July 2009. See Hart, 21 Vet. App. 505. VA and private treatment records indicate that the Veteran was prescribed corticosteroids more than one year prior to July 31, 2009 (date of increased rating claim). Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation would have been warranted for asthma for any part of the rating period on appeal. 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. 38 C.F.R. § 3.321(b)(1); 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, with respect to the claim for increased rating for asthma, the Board finds that the symptomatology and impairment caused by the Veteran's asthma, throughout the rating period from July 31, 2009 to April 8, 2011, is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Specifically, DC 6602 for bronchial asthma contemplates the Veteran's pulmonary functioning, the frequency of medical care, and the types of medication required to treat the disability. As demonstrated by the evidence of record, the Veteran's asthma is manifested by no worse than FEV-1 of 40 to 55 percent predicted, 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. When comparing this with the symptoms contemplated in the Rating Schedule, the schedular rating regarding the Veteran's asthma is not inadequate. A disability rating greater than 60 percent is provided for certain manifestations of asthma, but as discussed above, the weight of the lay and medical evidence reflects that those findings are not present in this case. Therefore, the schedular rating is adequate and no referral for extraschedular consideration is required. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. The Veteran is service connected for asthma, hiatal hernia, thoracolumbar spine degenerative arthritis, right and left knee patellar femoral pain syndrome, tinnitus, right middle finger laceration scar, headaches, right and left ankle strain, right lower extremity radiculopathy, eczema, allergic rhinitis, and bilateral pes planovalgus deformity, plantar fasciitis, and posterior heel spurs,. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In the absence of exceptional factors associated with the service-connected asthma disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record does not reflect, and the Veteran does not allege, that he was unemployable during the period from July 31, 2009 to April 8, 2011 due to the service-connected asthma disability. Moreover, the September 2009 VA examination report shows that the Veteran reported that asthma did not affect his employment. For the reasons above, the Board finds that a TDIU has not been raised and, therefore, is not before the Board on appeal. ORDER An increased disability rating of 60 percent, and no higher, for asthma, for the rating period July 31, 2009 to April 8, 2011, is granted. REMAND Increased Rating for Headaches Pursuant to VA's duty to assist, VA will obtain relevant records in the custody of a Federal department or agency (e.g., VA treatment records) as well as records not in Federal custody (e.g., private medical records). 38 C.F.R. § 3.159(c)(1), (2). After a review of the record, the Board finds that additional development is needed before proceeding with appellate review of the remaining issue on appeal. Specifically, VA has an outstanding duty to assist the Veteran obtain evidence that is potentially relevant to the issues on appeal. In July 2013, the Board remanded this issue to the AOJ, in part, in order to obtain the Veteran's treatment records from Dr. D.J. The record reflects that, in July 2013, the Veteran provided the necessary authorization; however, it appears that no attempt to obtain these records was made. See July 2013 VA Form 21-4142; February 2014 Veteran statement; February 2016 appellant's post-remand brief. Therefore, the Board finds that the AOJ did not substantially comply with the July 2013 Board Remand directive to obtain treatment record from Dr. D.J. Stegall, 11 Vet. App. 268. Accordingly, these treatment (medical) records should be obtained. The Veteran should provide the name and address of the provider as well as dates of treatment for the headaches disability on appeal in addition to any authorization needed to obtain such records. Accordingly, the issue of increased rating for headaches is REMANDED for the following actions: 1. The AOJ should request the Veteran to provide VA with the information and authorization necessary to obtain treatment records from Dr. D.J. for the headaches disability. The Veteran should provide the name and address of the provider as well as dates of treatment for the service-connected headaches disability on appeal. Efforts to obtain all these records should be associated with the claims file. 2. Thereafter, the issue of entitlement to an increased disability rating for headaches should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and representative should be provided with a supplemental statement of the case (SSOC). The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs