Citation Nr: 1742190 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 08-39 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for residuals of a left foot reconstruction, status post hammer toe arthroplasty claimed as hammer toes, bunions, callouses, and corns. 2. Whether the reduction of the disability rating for asthma from 100 percent to 30 percent, effective September 1, 2007, was proper, to include entitlement to an increased rating greater than 60 percent from November 19, 2008, entitlement to an increased rating greater than 30 percent from April 27, 2010, and entitlement to an increased rating greater than 60 percent from July 11, 2016. 3. Entitlement to an initial disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) prior to May 30, 2013 and from August 1, 2013. 4. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) prior to July 11, 2016. 4. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to May 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2007 and August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2012 with respect to the issue of whether the reduction of the disability rating for asthma from 100 percent to 30 percent was proper. A transcript of that hearing is associated with the claims file. Since the RO last considered the Veteran's claims, the Veteran has submitted additional evidence which has been added to her claims file. In August 2017, the Veteran's representative submitted a waiver of RO review of that evidence. 38 C.F.R. § 20.1304 (2016). The Board notes that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not also contemplate a claim for an increased rating. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the RO assigned staged ratings for the Veteran's asthma subsequent to the rating reduction, which were all addressed in the supplemental statements of the case, by the Board in its September 2015 Remand, and by the Veteran's representative. By consistently treating a claim as if it is part of a timely filed substantive appeal, VA effectively waives all objections to the procedural adequacy of the appeal with respect to that issue. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). Accordingly, the Veteran's appeal before the Board includes both the propriety of the rating reduction and a claim for an increased rating. In various lay statements, the Veteran has alleged that her current left foot disability was due to a surgery or surgeries conducted at a VA medical center, raising the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a left foot disability. That issue is not within the scope of the instant appeal. See Anderson v. Principi, 18 Vet. App. 371, 377 (2004) (a claim for compensation under section 1151 constitutes a separate and distinct claim for VA benefits.). Additionally, the issue of entitlement to compensation under § 1151 has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it must be referred to the AOJ for appropriate action. The issues of entitlement to an increased rating for PTSD and entitlement to a TDIU prior to July 11, 2016 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 2009 rating decision, the RO denied entitlement to service connection for a left foot disability. The Veteran did not appeal the August 2009 rating decision and new and material evidence was not received within the one-year appeal period of that decision. 2. Evidence received since the August 2009 rating decision is new, but does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. 3. A February 20, 2007 rating decision proposed to reduce the disability rating for the Veteran's asthma from 100 percent to 30 percent. 4. A June 14, 2007 rating decision implemented the proposed reduction, effective September 1, 2007. 5. The reduction of the Veteran's asthma from 100 percent to 30 percent was based upon evidence which, in combination with the evidence received after the reduction was implemented by the RO, was not sufficient evidence to demonstrate that there had been material improvement in the Veteran's asthma disability which was sustained under the ordinary conditions of daily life. 6. This decision restores the Veteran's 100 percent disability rating for asthma. As the Veteran is currently in receipt of a 100 percent rating for asthma, the issue of entitlement to an increased rating greater than 60 percent from November 19, 2008, greater than 30 percent from April 27, 2010, and greater than 60 percent from July 11, 2016 is moot. CONCLUSIONS OF LAW 1. The August 2009 rating decision is final with respect to the Veteran's claim to establish service connection for a left foot disability. 38 U.S.C.A. § 7105(c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). 2. Evidence received since the August 2009 rating decision is not new and material, and therefore the claim for entitlement to service connection for a left foot disability is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2016). 3. The criteria for restoration of a 100 percent schedular rating for asthma are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.344, 4.97, Diagnostic Code 6602 (2016). 4. The claim for entitlement to an increased rating for asthma greater than 60 percent from November 19, 2008, greater than 30 percent from April 27, 2010, and greater than 60 percent from July 11, 2016 is moot and is dismissed. 38 C.F.R. § 20.101(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With regard to the Veteran's claims to reopen the issue of entitlement to service connection for a left foot disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2016). A letter dated in August 2011 satisfied the duty to notify provisions for the claim to reopen entitlement to service connection for a left foot disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App 1 (2006). As to the rating reduction claim, the provisions of 38 C.F.R. § 3.105(e) set forth the pertinent notice requirements. As discussed below, such notice requirements have been met. With regard to VA's duty to assist, the Veteran's service treatment records, VA medical treatment records, identified private medical treatment records, and Social Security Administration (SSA) records have been obtained. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The Veteran did not undergo a VA examination with regard to her claim to reopen the issue of entitlement to service connection for a left foot disability. VA is not required to provide a VA examination or obtain a medical opinion in response to a claim to reopen if new and material evidence has not been presented. See 38 C.F.R. § 3.159(c)(4). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). I. Left Foot Disability The Veteran contends that she has submitted new and material evidence sufficient to reopen the claim of entitlement to service connection for a left foot disability. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a left foot disability was denied by the RO in an August 2009 rating decision. Notice of that decision was provided to the Veteran that same month. The Veteran did not appeal the August 2009 rating decision, and no evidence was received within the one-year appeal period that would constitute new and material evidence. Thus, the August 2009 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). The August 2009 rating decision denied service connection for a left foot disability because the evidence did not demonstrate that the Veteran's pre-existing left foot calluses and corns had permanently worsened due to service, or that her status post hammertoe arthroplasty disorder was related to active duty service. Thus, in order for the Veteran's claim to be reopened, evidence must be added to the record since the August 2009 rating decision addressing this basis. Although the RO determined that new and material evidence was not presented to reopen the claim of entitlement to service connection for a left foot disability, the Board does not have jurisdiction to consider a claim on the merits which was previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. After a thorough review of the evidence of record, the Board concludes that new and material evidence has not been received to reopen the claim of entitlement to service connection for a left foot disability. The only pertinent evidence associated with the Veteran's claims file since the RO's August 2009 decision consists of VA treatment records and lay statements provided by the Veteran. Although the VA treatment records and private treatment records show diagnoses of and treatment for left foot pain, toe pain, pes planovalgus, digital deformities status post hammertoe arthroplasty of left foot, left foot cellulitis, left foot ulcer, chronic left foot open wounds, left foot hallux valgus, pes planus, and metatarsalgia. The records also reflect that the Veteran underwent multiple left foot surgeries, including a June 2009 hammer toe arthroplasty of toes two through five of the left foot with long and short flexor tendon tenotomy and k-wire fixation; a June 2010 bunionectomy of the left foot; and an August 2016 amputation of the second and third toes on the left foot with wound debridement; While the new evidence shows diagnoses of and treatment for a left foot disability, none of this evidence suggests that the Veteran's pre-existing left foot calluses and corns were aggravated by service, or that the Veteran's diagnosed left foot disabilities are related to her active duty service. In fact, none of the evidence discusses the etiology of the Veteran's left foot disabilities at all. The Board acknowledges that the medical evidence received since the August 2009 rating decision is new evidence, as it was not of record at the time of the August 2009 rating decision. However, none of this new evidence is material, as it does not pertain to the etiology of the Veteran's left foot disabilities. The Veteran submitted multiple statements explaining her belief that a VA surgery to straighten hammer toes improperly caused her to lose bones in the second toe on her left foot, and that she wished to receive compensation for the results of that surgery. Although new, this evidence is not material to her claim to reopen entitlement to service connection for a left foot disability. As explained in the Introduction above, her statements raise the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a left foot disability, and that issue is not within the scope of the instant appeal. See Anderson v. Principi, 18 Vet. App. 371, 377 (2004) (a claim for compensation under section 1151 constitutes a separate and distinct claim for VA benefits.). Because the issue of entitlement to compensation under § 1151 has not been adjudicated by the AOJ, it has been referred to the AOJ for development and adjudication. As the basis of the RO's August 2009 denial of the Veteran's claim for entitlement to service connection for left foot disability was a finding that there was no competent evidence showing an aggravation of pre-existing left foot calluses and corns, and no competent evidence linking the Veteran's diagnosed left foot disabilities to her active duty service, and no new evidence pertaining to this issue has been received since the RO's August 2009 denial of her claim, the new evidence received since the August 2009 rating decision is not material; accordingly, the issue of entitlement to service connection for a left foot disability is not reopened. As new and material evidence has not been submitted to reopen the finally disallowed claim of entitlement to service connection for a left foot disability, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). II. Asthma Service connection for asthma was granted by a September 2005 rating decision, and a 100 percent evaluation was assigned, effective March 29, 2005. In February 2007, the RO issued a rating decision proposing to reduce the Veteran's rating for asthma from 100 percent to 30 percent. The Veteran was notified of that decision on February 22, 2007. In June 2007, the RO issued a rating decision effectuating the proposed reduction, reducing the Veteran's asthma rating from 100 percent to 30 percent, effective September 1, 2007. The Veteran was notified of this decision on June 18, 2007. The Veteran appealed the June 2007 rating decision, and in March 2009, she perfected her appeal. In May 2013, the RO issued a rating decision awarding an increased rating of 60 percent for asthma, effective November 19, 2008, and a 30 percent rating from April 27, 2010. In a September 2016 supplemental statement of the case, the RO granted an increased rating of 60 percent for the Veteran's asthma, effective July 11, 2016. VA treatment records from February 2007 through May 2007 reflect treatment for asthma with oral inhaled Levalbuterol four times per day or oral inhaled Albuterol four times per day; Loratadine every day; oral inhaled Mometasone Furoate; and Montelukast. In February 2007, the Veteran underwent a VA respiratory examination. She reported asthma treatment including daily inhaled bronchodilator and daily inhaled anti-inflammatory. There was no history of use of oral steroids, parenteral steroids, antibiotics, or immunosuppressive medication reported. She stated that she experienced three or more acute asthma attacks per week, and that she sought clinical care for asthma exacerbations less than weekly, but at least monthly. There was no history of respiratory failure and the VA examiner classified her condition between asthma attacks as moderate. PFTs were conducted, which revealed FEV-1 of 60 percent pre-bronchodilator and 74 percent post-bronchodilator; and FEV-1/FVC of 61 percent pre-bronchodilator and 66 percent post-bronchodilator. The diagnosis was chronic asthma with good response to bronchodilator. There was no evidence of cor pulmonale or pulmonary hypertension. In a March 2007 statement, the Veteran stated that she experienced less asthma symptoms during the fall and winter months, and that she took extra inhalations of her Levalbuterol inhaler during mild attacks rather than going to the hospital. She noted that she had been prescribed Prednisone numerous times during the prior few years, and approximated that she took Prednisone two to three times per year. Private treatment records from March 2007 show that the Veteran was seen in the Emergency Department for an asthma exacerbation. The Veteran was prescribed an Albuterol/Atrovent nebulizer, a Xopenex nebulizer, and Prednisone for six days. A March 2007 VA treatment record reflects that the VA physician prolonged the Veteran's Prednisone treatment into a week-long taper. In a June 2007 statement, M.C. reported that the Veteran had three asthma attacks in the last month. During a June 2007 DRO hearing, the Veteran explained that her February 2007 VA examination happened to be conducted during a "good day," and that she had good and bad periods of time with regard to the severity of her asthma symptoms. She noted that she was hospitalized for an asthma exacerbation the month following the VA examination. Private treatment records from January 2008 through May 2008 reflect diagnoses of and treatment for asthma. A January 2008 record notes that FEV-1 was 58 percent of predicted pre-bronchodilator, and 87 percent of predicted post-bronchodilator. Current medications were identified as Asmanex, Proventil, Pseudoephedrine, Loratadine, Singulair, Foradil, Albuterol, Nasal decongestant, and Amlodipine. Additionally, the physician prescribed daily Symbicort, QVAR, Nasonex, Omeprazole, Singulair, Loratadine, and Proventil. She was instructed to discontinue Asmanex and Foradil. In January 2008, the Veteran went to the emergency room for asthma. She was given Albuterol, Afrin, Zithromax, and Dexamethasone while in the emergency room. A March 2008 record notes that the Veteran presented to the emergency room with an asthma exacerbation. She was given multiple nebulizations and needed to be admitted to the hospital. The records show that she received "numerous treatments" while in the emergency room with Albuterol as well as Prednisone. During her hospital stay, she was prescribed IV Solu-Medrol. She was discharged on her pervious asthma medications as well as a two-week taper of steroids, including Prednisone and Avelox. In April 2008, the Veteran's FEV-1 was 90 percent of predicted. The physician reported that the Veteran had some problems with continued inflammation of her respiratory tract, and was a candidate for Xolair administration. Prescriptions included Symbicort, QVAR, Omeprazole, Singulair, Nasonex, and Xolair. A May 2008 record notes that the Veteran's FEV-1 was 82 percent of predicted. The Veteran complained of tightness in her chest when she was very active. Prescriptions included Xolair every two weeks and daily Symbicort, QVAR, Omeprazole, Singulair, Nasonex, and bronchodilator. VA treatment records from April 2008 through September 2008 show active prescriptions for Albuterol, Almodipine, Beclomethasone, Budesonide, Flunisolide, Loratadine, Mometasone Furoate, Montelukast, and Xolair. In September 2008, the Veteran underwent another VA respiratory examination. She reported treatment with daily inhaled bronchodilator and daily inhaled anti-inflammatory. She denied using oral steroids, parenteral steroids, antibiotics, and immunosuppressive medications. Medications were identified as Monetasone inhaler, Proventil inhaler, Singulair, Loratadine, and allergy shots. The Veteran reported that she experienced daily acute asthma attacks, and several clinical visits for exacerbations per year. There was no history of respiratory failure. She estimated that her asthma rendered her incapacitated for 7 days during the past 12 months. She indicated that she was hospitalized 2 times in the past 12 months for a total of 7 days. PFTs were conducted, which showed FEV-1 of 41 percent predicted pre-bronchodilator and 23 percent predicted post-bronchodilator. FEV-1/FVC was 68 percent pre-bronchodilator and 45 percent post-bronchodilator. The diagnosis was asthma. A December 2008 private treatment record notes that the Veteran had not experienced any significant exacerbations of asthma requiring the administration of systemic steroids, emergency room visits, or hospitalizations. FEV-1 was 83 percent of predicted. The diagnoses included severe asthma treated with Xolair. The record reflects that the Veteran was prescribed daily Symbicort, QVAR, Omeprazole, Nasonex, antihistamine, and bronchodilator. PFTs conducted in December 2008 show FEV-1 of 67 percent pre-bronchodilator and 55 percent post-bronchodilator. FEV-1/FVC was 70 percent pre-bronchodilator and 59 percent post-bronchodilator. February 2010 pulmonary function testing showed FEV-1 of 58 percent predicted pre-bronchodilator and 87 percent post-bronchodilator. FEV-1/FVC was 55 percent pre-bronchodilator and 67 percent post-bronchodilator. In April 2010, the Veteran underwent another VA respiratory examination. She reported exacerbations of asthma approximately four times per week. Medications used were identified as daily inhaled bronchodilator, daily inhaled anti-inflammatory, and daily oral bronchodilator. Although there was no use of oral steroids, the examiner reported that the Veteran used parenteral steroids including IM shots, which she received one time per year or less. No other immunosuppressives were reported. She stated that she had clinical visits for asthma exacerbation several times per year and three or more acute attacks per week. PFTs were conducted, which showed that FEV-1 was 67 percent predicted pre-bronchodilator and 87 percent predicted post-bronchodilator. FEV-1/FVC was 62 percent pre-bronchodilator and 67 percent post-bronchodilator. DLCO and lung volumes were reported as essentially normal. The diagnosis was asthma. The examiner noted that there was some impact on the Veteran's occupation, as she often had to leave work early, was unable to keep up, and would become short of breath. With regard to her usual daily activities, the examiner found that there were no effects of asthma on such activities except that she had difficulty with physical activities and outdoor activities and was unable to do yard work. Otherwise, she could perform light chores inside the house. Importantly, the April 2010 VA examiner stated that the September 2008 PFT results were "considered to be invalid due to suboptimal effort" but that the February 2010 and April 2010 PFTs were considered to be acceptable and reproducible, and valid to use for rating. An April 2010 private treatment record reflects that the Veteran was using a short-acting bronchodilator four times per day, as well as a combination of Symbicort and QVAR. FEV-1 was 69 percent of predicted. The physician stated that he was giving the Veteran "a little bit of systemic steroid" to help with the information in her chest, and indicated that she was no longer on Xolair. The physician prescribed Depo-Medrol, Symbicort, QVAR, Nasonex, and Omeprazole. VA treatment records from 2011 show continued diagnoses of and treatment for asthma. A January 2011 treatment record reflects a 10-day prescription for Prednisone. In June 2011, the Veteran denied asthma exacerbations and reported that she was receiving immunotherapy. A November 2011 record states that the Veteran was recently seen in the emergency department for asthma exacerbation, which was treated with epinephrine and a Prednisone burst. A December 2011 record reflects that the Veteran denied respiratory urgencies for the past year. The Veteran stated that her allergist was planning further immunotherapy, but that she was not able to see him for the preceding six or seven months. The record notes that a PFT was conducted that day, which showed moderately severe obstruction with robust response to bronchodilator. The physician indicated that the Veteran was more obstructed than in April 2010. A May 2011 private treatment record reflects that the Veteran stopped Xolair. FEV-1 was 58 percent of predicted. The physician instructed her to consider a course of immunotherapy "given the atopic disease driving some of her respiratory tract inflammation." The Veteran was prescribed Symbicort, QVAR, Pantoprazole, Nasonex, Loratadine, and Pro-Air. An October 2011 private treatment record notes that FEV-1 was 64 percent of predicted. The physician directed that immunotherapy be restarted, and prescribed Symbicort, QVAR, Pantoprazole, Nasonex, bronchodilator, and antihistamine. In January 2012, the physician again directed that immunotherapy be restarted. She was prescribed Spiriva, Symbicort, QVAR, Ventolin or Albuterol nebulizer, Pantoprazole, Nasonex, and Loratadine. An April 2012 record notes that the Veteran was prescribed Prednisone by VA physicians the day before, and that she was directed to continue the Prednisone course. She was also directed to continue immunotherapy, as well as her previously prescribed medications. FEV-1 was 88 percent of predicted. During a May 2012 hearing before the Board, the Veteran testified that she had a minimum of three incapacitating asthma episodes per year, and three asthma exacerbations per day which prevented her from walking long distances without using an inhaler constantly. She reported regular treatment with an inhaled corticosteroid. A May 2012 VA treatment record reflects that the Veteran presented to the emergency department with an asthma exacerbation. She reported that her last episode of acute attack was several months before. She presented in mild respiratory distress with wheezing. She was prescribed IV Solu-Medrol as well as Prednisone and Albuterol. A January 2013 VA treatment record notes that the Veteran had moderate persistent asthma, which was stable. The physician opined that chronic prednisone would still confer a greater risk than benefit to the Veteran. January 2013 PFTs showed FEV-1 of 55 percent predicted pre-bronchodilator and 77 percent predicted post-bronchodilator. FEV-1/FVC was 55 percent pre-bronchodilator and 67 percent post-bronchodilator. VA treatment records from May 2013 through July 2013 reflect that the Veteran was admitted to the hospital, primarily for treatment of her psychiatric disorder. However, the discharge summary reflects that the Veteran required a course of systemic corticosteroid and oral antibiotic treatment when she was first admitted for asthma treatment. A May 2013 private treatment record reflects that the Veteran presented to the emergency room for an acute asthma exacerbation. She was admitted to the hospital for three days. She was prescribed bronchodilator nebulizers, IV steroids, and an oral steroid taper. Later that month, the Veteran was admitted to a private hospital for "acute respiratory failure secondary to an asthma exacerbation." She was prescribed antibiotics as well as Albuterol, Amlodipine, Budesonide-formoterol, Bupropion, Buspirone, Loratadine, IV Solu-Medrol, Montelukast, and Pantoprazole. August 2013 private treatment records reflects that FEV-1 was 69 percent of predicted. The Veteran was instructed to continue immunotherapy as well as her prescribed medications identified as Symbicort, QVAR, Spiriva, Montelukast, Pantoprazole, Nasonex, Loratadine, Ventolin, and Albuterol nebulization. PFTs conducted in August 2013 revealed FEV-1 of 71 percent predicted pre-bronchodilator and 78 percent predicted post-bronchodilator. FEV-1/FVC was 70 percent pre-bronchodilator and 70 percent post-bronchodilator. An October 2013 VA treatment record reflects that the Veteran was prescribed a 10-day Prednisone burst. A January 2014 private treatment record indicates that the Veteran's FEV-1 was 89 percent of predicted. The Veteran was prescribed Depo Medrol as well as Symbicort, QVAR, Montelukast, Flonase, Spiriva, Proventil or Albuterol nebulization, Loratadine, and EpiPen. She was instructed to continue immunotherapy. The physician noted that he gave the Veteran a systemic steroid, as she appeared to have a flare-up of her atopic disease. He indicated that this was the first systemic steroid that she had received in over a year. A June 2014 private record reflects that the Veteran presented to the emergency room for asthma exacerbation. She was given Albuterol Atrovent treatments as well as Prednisone, and was discharged home on a course of Prednisone. An August 2014 private treatment record notes that FEV-1 was 64 percent of predicted. The physician recommended that the Veteran continue immunotherapy. He prescribed Symbicort, QVAR, Singulair, Spiriva, Pantoprazole, Loratadine, Proventil, Albuterol nebulization, and EpiPen. He also suggested that the Veteran complete an anti-IL13 study for her asthma. An October 2014 VA treatment record reflects that the Veteran continued immunotherapy. The diagnosis was asthma-chronic obstructive pulmonary disease crossover syndrome with moderate bronchitic exacerbation. She noted that this was her third exacerbation of 2014. The VA physician prescribed Prednisone for 8 days and an antibiotic. The physician noted that, given the Veteran's exacerbations despite dual ICS and immunotherapy, she might benefit from maintenance antibiotics. A March 2014 VA treatment record indicates that the Veteran's private physician favored starting her on maintenance antibiotics due to recurrent asthma exacerbations. He noted that she continued immunotherapy. An April 2015 private treatment record reflects that the Veteran reported to the emergency room with complaints of asthma exacerbation. She was given a prescription for Prednisone. A later April 2015 emergency room record indicates that the Veteran was unable to fill the previous Prednisone prescription, and that her symptoms had not abated since that time. She was treated with nebulizer treatments, Dexamethasone, and Magnesium. She was given a prescription for Prednisone. She was offered hospital admission, but she elected to return home. Approximately one week later, she returned to the hospital emergency room again complaining of asthma exacerbation. She was discharged home with instructions to continue use of inhalers. She was also given a prescription for Prednisone and a cough medication. VA treatment records dated in June 2015 reflect that the Veteran was prescribed a three-week dose of Prednisone. A July 2015 record notes that the Veteran had one or more outpatient asthma exacerbations in May, and that she continued with immunotherapy treatment with Xolair. The record also indicates that the Veteran was undergoing pulmonary rehabilitation. An August 2015 record notes that the Veteran failed Xolair treatment after a year, and that her asthma was poorly controlled despite immunotherapy. A July 2015 private treatment record shows that the Veteran's FEV-1 was 58 percent of predicted. The physician reported that the Veteran was undergoing cardiopulmonary rehabilitation at a private hospital. She noted that she required a systemic steroid at the emergency room in May for an asthma exacerbation. The Veteran was instructed to continue immunotherapy. She was prescribed Dulera, QVAR, Spiriva, Montelukast, Pantopprazole, Loratadine, Proventil, and Albuterol. In August 2015, she was given a 30 day prescription for an antibiotic. A March 2016 VA treatment record reflects that the Veteran was started on a prescription for Nucala. In May 2016, the Veteran presented to the VA emergency department with complaints of asthma exacerbation. She was prescribed Depo-Medrol and a prednisone taper and a DuoNeb nebulizer. In July 2016, the Veteran underwent another VA respiratory examination. The Veteran reported severe persistent asthma with failure of several treatments. She stated that she had been receiving allergy shots for the past 10 years and was taking Singulair, Albuterol, Spiriva, and Beclometasone. Despite this treatment, she still experienced three to four asthma attacks per week where she required the use of a nebulizer. She reported that she went to the emergency room at least 4 times for asthma attacks, that she saw her regular primary doctor around twice a year, and that she saw her allergy specialist every three months. She noted that she was starting a new treatment, Nucala, for better asthma control. The VA examiner reported that the Veteran's asthma required the use of 4 or more courses or bursts of systemic (oral or parenteral) corticosteroids during the past 12 months. Additionally, her asthma required the use of daily inhalation bronchodilator therapy and daily anti-inflammatory medication. There were no asthma attacks with episodes of respiratory failure in the past 12 months. The examiner noted that she required physician visits for care of exacerbations less than monthly over the past 12 months. PFTs conducted in June 2016 revealed FEV-1 of 60 percent predicted pre-bronchodilator and FEV-1 of 83 percent predicted post-bronchodilator. FEV-1/FVC was 58 percent pre-bronchodilator and 69 percent post-bronchodilator. With regard to the functional impact of the Veteran's asthma, the VA examiner remarked that the Veteran was no longer working, but that when she was working, the movement of her job in fast food made her short of breath. The examiner noted that the Veteran's allergist reported that the Veteran reacted to environmental stimulus, which made it very difficult for her to work in places that have high pollutant, smoke, smells, and allergens in general, as well as work that involves physical activity. She indicated that she was able to perform the activities of daily living, but that physical activity made her wheeze and experience shortness of breath. Private treatment records from February 2017 reflect continued treatment for asthma. The records reflect that the Veteran was not required to take systemic steroids at that time. FEV-1 was 42 percent predicted. The diagnosis was asthma, not well controlled, severe persistent, with acute exacerbation. Medications were identified as immunotherapy with EpiPen, Symbicort, QVAR, Spiriva, Montelukast, Omeprazole, Nucala, and Albuterol nebulization or Proventil. Another private February 2017 record indicates that the Veteran presented to the emergency room, and was diagnosed with bronchitis. She was prescribed an antibiotic, a decongestant, Prednisone, and an antihistamine. a. Rating Reduction When a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). In this case, the June 2007 rating decision was issued more than 60 days after the February 2007 proposed rating decision; therefore, the predetermination procedures specified in 38 C.F.R. § 3.105(e) have been met. After completing the predetermination procedures specified in 38 C.F.R. § 3.105(e), the RO must send written notice of the final action. This notice must set forth the reasons for the action and the evidence upon which the action is based. Id. Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. Id. Here, the reduction was effectuated in a June 2007 rating decision, accompanied by a June 2007 notice letter; the effective date of the reduction was September 1, 2007. The RO satisfied the requirements by allowing a 60-day period to expire before assigning the new effective date for the rating. The question is thus whether the reductions were proper based on the evidence of record. The 100 percent initial rating assigned for asthma was awarded effective March 29, 2005. The rating was reduced effective September 1, 2007, less than five years later. Where a disability evaluation has continued at the same level for less than five years, the analysis is conducted under 38 C.F.R. § 3.344(c). 38 C.F.R. § 3.344(c) (2016). Under 38 C.F.R. § 3.344(c), a reexamination that shows improvement in a disability warrants a reduction in the disability evaluation. However, VA rating reductions must be based upon a review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also Brown v. Brown, 5 Vet. App. 413, 419 (1993). However, § 3.344 also provides that "[r]atings on account of diseases subject to temporary or episodic improvement, e.g., . . . bronchial asthma. . . will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated." A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." See Brown, 5 Vet. App. at 421. In a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted. See Brown, 5 Vet. App. at 420-421; Kitchens v. Brown, 7 Vet. App. 320 (1995). Under 38 C.F.R. § 3.343(a), total disability ratings will not be reduced in the absence of clear error, without examination showing material improvement in the condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending re-examination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343. The question of whether a disability has improved involves consideration of the applicable rating criteria. Here, the Veteran's asthma is rated under 38 C.F.R. § 4.97, Diagnostic Code 6602. Under Diagnostic Code 6602 for bronchial asthma, a 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent predicted, or; daily inhalation or oral bronchodilator therapy, or; inhalation anti-inflammatory medication. 38 C.F.R. § 4.97, Diagnostic Code 6602. A 60 percent rating is warranted when there is 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 times per year) courses of systemic (oral or parenteral) corticosteroids. Id. A maximum 100 percent rating is for application when there is 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. Id. A Note accompanying Diagnostic Code 6602 indicates that, in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. Id. After a thorough review of the claims file, the Board finds that the evidence does not support the reduction of the rating assigned for the Veteran's asthma disability, effectuated by the June 2007 rating decision. Review of the claims file shows that the Veteran's initial 100 percent rating for her asthma was based upon the results of pulmonary function tests (PFTs) conducted during a July 2005 VA examination, which showed FEV-1 of 28 percent and FEV-1/FVC of 57 percent. The June 2007 rating decision which effectuated the reduction of the Veteran's asthma disability rating shows that the RO's decision was based upon the results of a February 2007 VA examination, VA treatment records from February 2007 through May 2007, a June 2007 DRO hearing, and lay statements provided by the Veteran. Comparison of the evidence of record at the time that the initial 100 percent rating was awarded with the evidence of record at the time of the rating reduction does show an improvement in the Veteran's asthma disability. Specifically, the July 2005 VA examination, which showed FEV-1 of 28 percent and FEV-1/FVC of 57 percent. In contrast, the February 2007 VA examination showed FEV-1 of 60 percent pre-bronchodilator and 74 percent post-bronchodilator; and FEV-1/FVC of 61 percent pre-bronchodilator and 66 percent post-bronchodilator. As such, the evidence of record at the time of the rating reduction suggested a material improvement in the Veteran's asthma disability. However, the evidence received after the RO effectuated the asthma rating reduction does not support a finding of material improvement in the asthma disability under the ordinary conditions of daily life. In that regard, the private and VA medical evidence demonstrates immunosuppressive treatment in the form of injected Xolair for over one year, an episode of respiratory failure during an asthma exacerbation, and an FEV-1 value of 41 percent predicted pre-bronchodilator and 23 percent predicted post-bronchodilator in September 2008. Additionally, the evidence reflects several visits to the emergency room, numerous prescriptions for Prednisone, and treatment with various inhaled steroids. Given the evidence demonstrating treatment with immune-suppressive medication for more than one year, the evidence of respiratory failure, and the September 2008 FEV-1 value of 23 percent predicted post-bronchodilator, the evidence received after the asthma rating reduction was effectuated does not support a finding of material improvement in the Veteran's asthma disability under the ordinary conditions of daily life, and the preponderance of the evidence does not show that the RO's reduction was warranted. See Brown, 5 Vet. App. at 420-421; Kitchens, 7 Vet. App. 320. Accordingly, the June 2007 rating reduction was not proper, and the 100 percent rating is restored. b. Increased Rating Given the restoration of the Veteran's 100 percent disability rating for asthma from September 1, 2007, the issue of entitlement to an increased rating for asthma during the periods subsequent to the rating reduction is rendered moot. ORDER New and material evidence not having been received, the claim for entitlement to service connection for a left foot disability is not reopened. The reduction of a 100 percent disability rating for the service-connected asthma disability, effective September 1, 2007, was not proper and restoration of the 100 percent rating from September 1, 2007 is granted. Entitlement to an increased rating for asthma greater than 60 percent from November 19, 2008, greater than 30 percent from April 27, 2010, and greater than 60 percent from July 11, 2016 is dismissed. REMAND Review of the claims file reflects that the Veteran last underwent a VA examination assessing the severity of her PTSD in March 2012. In various lay statements, the Veteran and her representative have alleged that her PTSD symptoms have worsened since that time. Accordingly, as the March 2012 VA examination is now over five years old and the evidence suggests that it may not reflect the current severity of the Veteran's disability, a new VA examination is warranted. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also 38 C.F.R. § 3.326(a) (2016). The Veteran's claim for entitlement to a TDIU prior to July 11, 2016 is intertwined with the claim for an increased rating for PTSD, remanded herein. In that regard, assignment of a total schedular rating does not automatically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) (West 2014) by having an "additional" disability of 60 percent or more ("housebound" rate)). In Bradley, the United States Court of Appeals for Veterans Claims (Court) found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Because the Veteran's PTSD disability is currently rated as 50 percent disabling for which she is seeking an increased rating and because her claim for an increased rating for PTSD has been pending since May 2011, the issue of entitlement to a TDIU prior to July 11, 2016 is intertwined with the claim for an increased rating for PTSD. Accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a comprehensive VA psychiatric examination to determine the current severity of the Veteran's PTSD. The evidence of record, in the form of electronic records, and any additional VA treatment or evaluation records in digital formats must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must provide accurate and fully descriptive assessments of all psychiatric symptoms. The examiner must comment upon the presence or absence, and the frequency or severity of symptoms due to PTSD. The examiner must also enter a complete multiaxial evaluation, and assign a Global Assessment of Functioning score together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. The examiner must also provide an opinion whether the functional effects of the Veteran's PTSD and any other psychiatric disability or characteristics, signs, or symptoms of other disability that are not differentiable from the Veteran's PTSD render her unable to obtain or retain employment. If the examiner cannot provide any of the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The RO must notify the Veteran that it is her responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). 3. When the above development has been completed, readjudicate the issues on appeal, including the issue of entitlement to a TDIU prior to July 11, 2016. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. The appellant 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs