Citation Nr: 1640585	
Decision Date: 10/14/16    Archive Date: 10/27/16

DOCKET NO.  10-31 057	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for bronchial asthma since September 30, 2008.

2.  Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. E. Miller, Associate Counsel



INTRODUCTION

The Veteran served in the U.S. Army from May 1982 to January 1996.

This matter came before the Board of Veterans' Appeals (Board) on appeal from April 2009 and April 2016 decisions of the San Diego, California, and Cleveland, Ohio, Regional Offices (ROs). On her July 2010 VA Form 9, the Veteran indicated that she believed she was entitled to a 30 percent rating for her bronchial asthma. In its April 2016 rating decision granting a 30 percent rating, the RO stated that the "decision is a grant of all benefits sought on appeal and the appeal is considered to be satisfied in full for the evaluation of asthma. No further action will be taken for this issue." Although the Veteran can limit the appeal to entitlement to a rating less than the maximum allowed by law for a particular disability, she is presumed to be seeking the maximum benefit. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993). In the present case, the Veteran did not expressly limit her appeal to only 30 percent; instead, she merely stated she thought her disability entitled her to a 30 percent rating. Therefore, the issue of an increased rating for bronchial asthma remains on appeal.

In March 2012, the Cleveland, Ohio, RO denied a TDIU. This denial was premature as the issue of a TDIU is part of the claim for an increased rating for bronchial asthma. The United States Court of Appeals for Veterans Claims (Court) has directed that when entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447, 454   (2009). 

The issue of an increased rating for posttraumatic stress disorder (PTSD) has been raised by the record in a September 2016 informal hearing presentation (IHP), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). 


FINDINGS OF FACT

1.  The Veteran's bronchial asthma has been shown to be manifested by no more than pre-bronchodilator pulmonary function test (PFT) indicating FEV-1 of 52 percent predicted and FEV-1/FVC of 85 percent predicted, shortness of breath when walking and performing household chores, use of an albuterol inhaler 4-6 times per week, inhalation therapy three times per day, use of a nebulizer four times per day, and use of oxygen at night.

2.  The Veteran's service-connected disabilities make her unable to secure or follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  The criteria for a 60 percent rating for bronchial asthma have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.97, Diagnostic Code 6602 (2015).

2.  The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and to Assist

VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA has issued several notices to the Veteran including a November 2008 notice which informed her of the evidence generally needed to support a claim for an increased rating for asthma; what actions she needed to undertake; and how VA would assist her in developing her claims. The November 2008 notice was issued to the Veteran prior to the April 2009 rating decision from which the instant appeal arises.  

VA has secured or attempted to secure all relevant documentation to the extent possible. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded adequate VA examinations for compensation purposes. The examination reports are of record.

All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VA's duties to notify and to assist have been met.

II.  Bronchial Asthma

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). Bronchial asthma is rated according to 38 C.F.R § 4.97, Diagnostic Code 6602. A 30 percent rating is warranted for 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 warranted for 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 warranted 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. A note to diagnostic code 6602 states that, "in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record." 38 C.F.R. § 4.97, Diagnostic Code 6602 (2015).
	
Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.  

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  

Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is:  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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).  

A January 2009 pre-bronchodilator PFT revealed FEV-1 of 73 percent predicted and FEV-1/FVC of 106 percent predicted. In February 2009, the Veteran was afforded a VA examination. The examiner noted that the Veteran could not walk a half mile. She uses an albuterol inhaler at least 4-6 times per week. Private treatment records from July and August 2009 reflect that the Veteran was seen for complaints of cough with sputum, wheezing, and difficulty breathing. Inhalation therapy was prescribed for three times per day.

In a November 2010 statement, the Veteran wrote that climbing stairs, walking, carrying groceries or laundry, and vacuuming all cause her to become short of breath. The Veteran reported taking several medications for her asthma, including using albuterol inhaler and taking albuterol and ipratropium. 

In July 2011, the Veteran was afforded a VA examination. It was noted that she takes an albuterol and ipratropium nebulizer four times per day and uses an albuterol inhaler as needed. She reported being able to slowly walk up to 100 feet but walking even 30 feet at a fast pace makes her short of breath. She reported difficulty cooking, taking care of her house, and gardening during hot and humid weather. A pre-bronchodilator PFT indicated FEV-1 of 68 percent predicted and FEBV-1/FVC of 96 percent predicted.

Private treatment records dated between July 2011 and October 2011 indicate the Veteran continued to undergo treatment for difficulty breathing, shortness of breath, and cough. The records indicate that she uses oxygen at night and that the Veteran reported tiring very easily and having difficulty doing work. In an October 2011 statement, the Veteran wrote that her asthma causes her to be sick 3-4 times per year, with each episode lasting 2-4 months each. She also reported continuing to use her nebulizer 4 times per day and that she uses oxygen at night. An October 2011 private physician's note states that the Veteran tires easily, needs oxygen at times, is on home treatment for pulmonary secretion, and uses a nebulizer.

In February 2016, the Veteran was afforded a VA examination. The Veteran was diagnosed with asthma. The examiner noted that the Veteran uses intermittent inhalational bronchodilator therapy, but that she does not require use of oral bronchodilators, antibiotics, outpatient oxygen therapy, has not had any asthma attacks with episodes of respiratory failure in the prior 12 months, and that she has not had any physician visits for required care of exacerbations. A pre-bronchodilator PFT indicated FEV-1 of 52 percent predicted and FEV-1/FVC of 85 percent predicted.

The Veteran's bronchial asthma has been shown to be manifested by no more than pre-bronchodilator PFT indicating FEV-1 of 52 percent predicted and FEV-1/FVC of 85 percent predicted, shortness of breath when walking and performing household chores, use of an albuterol inhaler 4-6 times per week, inhalation therapy three times per day, use of a nebulizer four times per day, and use of oxygen at night. Given these facts, the Board finds that a 60 percent rating reflects the severity of the Veteran's current bronchial asthma. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A 100 percent rating is not warranted as the Veteran does not exhibit an FEV-1 of less than 40 percent predicted, an FEV-1/FVC of less than 40 percent predicted, more than one attack per week with episodes of respiratory failure, or requirement of daily use of systemic (oral or parenteral) high does corticosteroids or immuno-suppressive medications.

III.  TDIU

VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently rated at 50 percent for PTSD, 30 percent for sinusitis, 30 percent for left foot osteoarthritis, 30 percent for right foot osteoarthritis, 10 percent each for right and left hand osteoarthritis, and 10 percent for left knee patellofemoral pain syndrome with osteoarthritis; has noncompensable ratings for right and left knee chondromalacia of the patella, status post conization of the cervix, and a right foot scar; and now is rated at 60 percent for bronchial asthma. Therefore, she meets the schedular criteria for TDIU.

In a December 2010 statement, the Veteran wrote that she is unable to work because she needs to use a nebulizer four times per day and because her asthma causes her to be short of breath which makes her tired. In an October 2011 statement, the Veteran wrote about her work history and that she's always been a motivated self-starter. She wrote, however, that, partially due to her service-connected asthma and sinusitis, she is sick 3-4 times per year, with each episode lasting 2-4 months. In October 2011 her private physician also wrote a letter indicating that the Veteran was physically not well to work and is permanently disabled as a result of various pulmonary diseases, including her service-connected sinusitis.

At a September 2016 PTSD examination, the examiner wrote that the Veteran "exhibits symptoms of PTSD that interfere with interpersonal relatedness, concentration and memory, and ability to tolerate stress and motivation. These symptoms would impair the [V]eteran's ability to work cooperatively and effectively with co-workers and supervisors, communicate effectively, and maintain persistence on tasks."

The Veteran suffers from shortness of breath, exhaustion, and illnesses caused by her bronchial asthma and sinusitis; her PTSD affects her interpersonal relations, concentration, memory, motivation, and ability to tolerate stress; and she has additional disabilities affecting her feet, hands, and knees. In cases such as these, the benefit-of-the-doubt rule, codified at 38 U.S.C.A. § 5107 provides that:

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 

The implementing regulation at 38 C.F.R. § 3.102 restates the provision in terms of "reasonable doubt." 

Because the evidence in this case is at least in equipoise with regard to whether the Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities, a TDIU is warranted and the claim is granted.


ORDER

A 60 percent rating for bronchial asthma is granted.

TDIU is granted.






______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs