Citation Nr: 1613712	
Decision Date: 04/05/16    Archive Date: 04/13/16

DOCKET NO.  10-39 292	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to an effective date earlier than April 7, 2009 for award of a 100-percent rating for asthma with chronic bronchitis.

2. Entitlement to an effective date earlier than April 7, 2009 for award of special monthly compensation (SMC) based on status of being housebound.

3. Entitlement to service connection for headaches disorder, to include as secondary to service-connected cervical spine disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from February 1986 to March 1993. 

This appeal to the Board of Veterans' Appeals (Board) arose from a January 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia that awarded a total rating for the asthma and SMC based on housebound status, both effective April 7, 2009; and, denied service connection for a headache disorder.

The Veteran had previously perfected appeals as to entitlement to higher initial ratings for low back, cervical spine, left and right ulnar tunnel, left shoulder, and right ring finger disabilities; as well as multiple scars.  The Board remanded these issues for further development in May 2001.  In July 2003, prior to a Board decision, the Veteran wrote that he was withdrawing all issues on appeal.  These issues are no longer before the Board.  See 38 C.F.R. § 20.204 (2015).

In January 2016, the Veteran appeared at a hearing at the Board before the undersigned.  A transcript is associated with the claims file. At the hearing, the Veteran and his representative requested that the record be held open for submission of additional evidence under waiver of initial Agency of Original Jurisdiction (AOJ) review and consideration.  The undersigned granted the request and additional evidence was in fact received under a waiver.  Hence, the Board may consider the evidence. See 38 C.F.R. § 20.1304 (2015).

The Veteran has Virtual and VBMS VA paperless claims files, which are highly secured electronic repositories that are used to store and review documents involved in the claims process.  The Board has reviewed the contents of both files while reviewing this appeal. 

The issues of entitlement to service connection for a headache disorder, to include as secondary to service-connected cervical spine disability; and an effective date earlier than April 8, 2008 for the grant of a 100 percent rating for asthma and special monthly compensation on account of being housebound is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1. It was factually ascertainable that the Veteran's asthma required immunosuppressive medication as of April 8, 2008.

2. VA received an informal claim of entitlement to an increased rating for asthma with chronic bronchitis on March 27, 2009.


CONCLUSIONS OF LAW

1. The criteria for an effective date of April 8, 2008, for award of a total rating for asthma with chronic bronchitis have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400(o)(2) (2015).

2. The criteria for an effective date of April 8, 2008, for award of SMC due to being housebound have been met. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400(o)(2).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Rating Criteria

The Veteran's asthma with chronic bronchitis is rated analogously to bronchial asthma under Diagnostic Code (DC) 6602. See 38 C.F.R. § 4.20. The rating criteria under this DC were changed, effective October 7, 1996. See 61 Fed. Reg. 46720 (September 5, 1996). Under the prior criteria, a 100 percent rating was appropriate where the asthma was pronounced, with asthmatic attacks very frequently with severe dyspnea on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health. 38 C.F.R. § 4.97, DC 6602 (1995).

Under the current version DC 6602, which was effective October 7, 1996, a 100-percent evaluation is assignable for asthma with an FEV-1 of less than 40 percent predicted, or; the ratio of FEV-1 to FVC is less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97 (2015).

Date Veteran's Claim Received

The date stamp on the front of the Veteran's informal claim is April 7, 2009, and it was applied at the Roanoke RO. On the rear of the document, however, is another date stamp that reflects that it was received at the Washington RO on March 27, 2009, the date the Veteran signed it. His claim is deemed to have been received the date VA received it, even if not by the RO that maintained jurisdiction over his claims file. Therefore, the Board will use March 27, 2009 as the date of receipt of his informal claim for an increased rating.

Legal Requirements

Generally, the effective date of an award based on an original claim, or a claim reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a).  Except as otherwise provided, the effective date of an award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.400(o).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a).  If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of an informal claim.  Id. Further, prior to the amendment of 38 C.F.R. § 3.157, a claim was defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). 

An informal claim was "[a]ny communication or action indicating intent to apply for one or more benefits" under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who was not sui juris. 38 C.F.R. § 3.155(a). Such informal claim had to identify the benefit sought. Id.  A communication received from a service organization, an attorney, could not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. 38 C.F.R. § 3.155(b). Hence, all communications from a claimant that could be interpreted as applications or claims, formal and informal, for benefits had to be scrutinized to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

Once service connection was in effect for a disability, a report of examination or hospitalization by VA or one of the uniformed services, which met the requirements of 38 C.F.R. § 3.157 would be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(a).   Upon receipt of an informal claim, if a formal claim has not been filed, an application form was to be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it was considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a).

The remaining question is whether it was factually ascertainable that there was an increase in disability within a year prior to the March 27, 2009 claim. See 38 C.F.R. § 3.400(o)(2). In Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010), the Federal Circuit reaffirmed that "the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.". Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred.

The Board already has established element 1. The Veteran's pulmonary function tests (PFT) of record reflect that his FEV-1 and the FEV-1-FVC values were consistently better than 40 percent predicted. Further, his treatment records for the one-year period prior to March 27, 2009 reflect no notations of respiratory failure; and, they indicate that his asthma was treated primarily with inhalers and an oral preventive agent, .e.g., Montelukast, until 2008.

The January 2010 rating decision notes the Veteran's visit to a VA emergency room in February 2008 for an acute exacerbation of his asthma. His primary treatment was an injection to help his breathing, and he was discharged with instructions to followup with his primary physician. The records related to his oxygen therapy are related to his obstructive sleep apnea, not his asthma. 

A December 2009 letter from the Veteran's treating VA physician, Dr. C, notes that the Veteran was started on Prednisone in June 2009 for asthma. Hence, the January 2010 rating decision granted a total rating as of the date of the receipt of the Veteran's claim, based on the April 2009 date stamp. 

The Veteran's outpatient treatment records, however, reflect that a Prednisone prescription was active as far back as April 8, 2008 and forward. Dr. C did not address that fact in his December 2009 letter that noted Prednisone was started in June 2009. Nonetheless, the Board will apply the evidence that is more favorable to the Veteran. Therefore, using the date of March 27, 2009, the Veteran's claim was received within one year of April 8, 2008, the date a Prednisone prescription is noted in the treatment records. Even if the April 7, 2009 date is used, the outpatient records show that the Prednisone prescription was still active in May 2008 and later.

As of March 27, 2008, the Veteran had a single service connected disability rated 100 percent and additional service connected disability that totaled at least 60 percent.  Hence, he met the criteria for special monthly compensation based on being housebound.  38 U.S.C.A. § 1114(s).  In light of the above, an effective date of March 27, 2008 is warranted for both the total rating and SMC. 38 C.F.R. §§ 3.102, 3.400(o)(2).



ORDER

Entitlement to an effective date of April 8, 2008 for award of a 100-percent rating for asthma with chronic bronchitis is granted.

Entitlement to an effective date of April 8, 2008 for award of SMC based on status of being housebound is granted.


REMAND

At his hearing, the Veteran alleged that there was clear and unmistakable error (CUE) in the March 3, 1997 rating decision that assigned an initial 30-percent rating for asthma with bronchitis.  This issue is inextricably intertwined with the effective date issue on appeal, but the Board is precluded from considering it in the first instance.  Huston v. Principi, 18 Vet. App. 395 (2004).  Instead, the Board is required to insure that it is adjudicated by the AOJ.  Id.

The Veteran was not afforded a VA examination as part of the adjudication of the headache claim. The service treatment records, private and VA outpatient records, and the Veteran's hearing testimony reflect that he complained of headaches after he was involved as a passenger in a motor vehicle accident (MVA) in 1991. His VA records also reflect that, even if his chronic headaches are not directly connected to his active service, they may be related to his service-connected cervical spine disability. The threshold for a VA examination is low. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); 38 C.F.R. § 3.159(a)(2), (c)(4). The low threshold has been triggered. 

Accordingly, the case is REMANDED for the following action:

1. Adjudicate the Veteran's claim of CUE in the March 31, 1997 rating decision that granted an initial 30 percent rating for chronic bronchitis and asthma.  This issue will not be further considered by the Board, unless the Veteran submits a timely notice of disagreement with the RO's decision; and after a statement of the case, a timely substantive appeal.

2. Arrange a VA examination to determine whether the Veteran has a current headache disorder related to service or a service connected disability. 

The examiner should opine whether there is at least a 50-percent probability that any headache disorder present at any time since 2009 had its onset in service; is the result of a disease or injury in service; or was caused or aggravated by a service connected disability, to include a cervical spine disability.

The examiner is advised that VA will not concede aggravation of a claimed disability by a service connected disability unless the baseline level of the non-service connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability.

The examiner should consider the report of headaches following a motor vehicle accident in 1991, and the Veteran's testimony that he had experienced continuous headaches since the accident.

The examiner should also opine whether the Veteran's testimony, if accepted, would be sufficient (either standing alone or in conjunction with the other evidence) to establish a link between current headaches and service or a service connected disability.  The examiner should note whether there is any medical reason for rejecting the Veteran's testimony.

The examiner should provide reasons for these opinions. If an opinion cannot be provided without resort to speculation, the examiner should state whether the inability is due to the limits of the examiner's medical knowledge or medical knowledge in general; or there is additional evidence, which if obtained, would enable the opinion to be provided.

3. After the above is complete, the AOJ shall re-adjudicate the claim de novo. If the benefit sought on appeal is denied, issue a supplemental statement of the case; and, return the case to the Board, if all is in order.

The Veteran 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 2014).



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs