Citation Nr: 1802426 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-18 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a disability rating in excess of 30 percent for bronchial asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to July 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Additional evidence not previously considered by the RO has been submitted. However, in February 2013, under Section 501 of Public Law 112-154, 38 U.S.C. § 7105 was amended to establish an automatic waiver of agency of original jurisdiction (AOJ) review of evidence related to an issue(s) with which disagreement has been expressed if such evidence is submitted on or after the date that the AOJ receives the substantive appeal or its equivalent in correspondence. Such evidence will be subject to initial review by the Board, unless the appellant requests, in writing, initial review by the RO. Here, the Veteran filed his substantive appeal in July 2017, the evidence was received in November 2017, and the Veteran has not asked for an initial review of the evidence by the AOJ. Thus, waiver of this additional evidence is not necessary, and the Board may properly consider all additional evidence submitted. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDING OF FACT The Veteran's bronchial asthma has been manifested by FEV-1/FVC greater than 70 percent; daily inhalational anti-inflammatory medication and oral bronchodilator therapy; and one course of systemic corticosteroids in the past 12 months; without evidence that the asthma requires at least monthly visits to a physician for care of exacerbations; at least three courses of systemic (oral or parenteral) corticosteroids per year; more than one attack of asthma per week with episodes of respiratory failure; or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.655(a), (b), 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.97, Diagnostic Code 6602 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in February 2016. Therefore, additional notice is not required. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim. In the December 2017 appellate brief, the Veteran's representative argued that the March 2016 VA examination was inadequate because the VA examiner was a nurse practitioner who, the representative alleged, was not shown to have any particular expertise, experience, training, or competence in commenting on pulmonary disorders. The representative stated that the VA examiner, identified as a nurse practitioner, lacked the basic knowledge of even a Primary Care Physician and this absence of competence renders the VA examiner's assessment no more probative than the Veteran's lay assertions that there is worsening of his disorder. The representative requested a remand and a new examination by a pulmonologist is the claim was not granted. The Board finds that the Veteran has been afforded an adequate examination. The VA examination was conducted by a nurse practitioner and was based on review of claims file, solicitation of history and symptoms from the Veteran, and a thorough examination of him. The VA examiner reviewed and considered the results of the pulmonary function test (PFT) that was conducted by a registered respiratory therapist. To the extent that the Veteran's representative has challenged the adequacy of the VA examiner based upon the examiner's qualifications as a nurse practitioner, the United States Court of Appeals for Veterans Claims (Court) has held that VA satisfied its duty to assist in a case where a nurse practitioner performed the VA examination, as a nurse practitioner is competent to provide medical evidence. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Board finds that the March 2016 VA examination and medical opinion are adequate to decide the Veteran's claim because they were based on a thorough examination, appropriate diagnostic tests including the results of the PFT that was conducted by a registered respiratory therapist, and review of his relevant medical history. The examination report and medical opinion are accurate and fully descriptive. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 2. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Court has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (the Court noted a distinction between claims stemming from an original rating versus increased rating). According to Diagnostic Code 6602, a 10 percent rating for bronchial asthma is warranted for Force Expiratory Volume at one second (FEV-1) of 71- to 80-percent predicted; or, FEV-1/Forced Vital Capacity (FVC) of 71 to 80 percent; or, intermittent inhalational or oral bronchodilator therapy. 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 evaluation is assigned when FEV-1 is 40 to 55 percent the predicted value, or FEV-1/FVC of 40 to 55 percent; or if the asthma requires at least monthly visits to a physician for care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent evaluation is assigned when FEV-1 is less than 40 percent predicted, FEV-1/FVC is less than 40 percent, the Veteran experiences more than one attack per week with episodes of respiratory failure, or the Veteran requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2107). Certain diagnostic codes require the use of post-bronchodilator studies for disability evaluation purposes, except when the results of pre-bronchodilator pulmonary function tests are normal, or when the examiner determines that post-bronchodilator studies should not be done and states why. See 38 C.F.R. § 4.96 (d) (2017); however, the diagnostic codes enumerated under that section (6600, 6603, 6604, 6825-6833, and 6840-6845) do not include Diagnostic Code 6602 (asthma). Accordingly, that section is not applicable to the claim and both pre- and post-bronchodilator results must be considered. 3. Analysis Service connection for asthma was granted in a December 1958 rating decision and a 30 percent disability rating was assigned pursuant to Diagnostic Code 6602 effective July 19, 1958. In this case, the Veteran's 30 percent rating for the bronchial asthma is a protected rating. A disability rating that has been continuously rated at or above a certain percentage for at least 20 years is a protected rating. A protected rating cannot be reduced, let alone eliminated, absent a showing of fraud. 38 C.F.R. § 3.951 (2017). The current appeal arises from an increased rating claim received at the RO in December 2015. The Veteran's service-connected bronchial asthma is rated at 30 percent disabling. To receive a higher disability rating, the evidence must show FEV-1 in the range from 40 to 55 percent of predicted value, or; the ratio of FEV-1/FVC is in the range from 40 through 55 percent, or at least monthly visits to a physician for required care of exacerbations, or: intermittent courses (at least three per year) of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.97, Diagnostic Code 6602. The March 2016 VA examination report indicates that the Veteran took Albuterol, an inhaler, and Budesonide, an inhaler, for the asthma and that he was last seen for asthma in September 2008; The Veteran was visiting Colorado and became ill. He was inpatient at VA for pneumonia and was told that it was a combination of altitude and aspiration. He was placed on oral antibiotics, a 10 day course. It was noted that the Veteran had not been on a prednisone taper for asthma in the past 12 months. The VA examination report indicates that the Veteran was on daily inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. The VA examiner indicated that the Veteran's respiratory condition did not require the use of oral bronchodilators, the use of antibiotics, or outpatient oxygen therapy. The VA examiner indicated that the Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medications. The VA examination report indicates that the Veteran has not had any asthma attacks with episodes of respiratory failure in the past 12 months or any physician visits for required care of exacerbations. Pulmonary function tests were performed and the VA examiner indicated that the PFTs accurately reflect the Veteran's current pulmonary function and the FEV-1/FVC test result most accurately reflected the Veteran's level of disability. The FEV-1/FVC test results were 75 percent (pre-bronchodilator) and 71 percent (post-bronchodilator). VA healthcare records indicate that in October 2014, the Veteran's current medications included Albuterol, an oral inhaler, 2 puffs by mouth every 6 hours as needed for rescue breathing; budesonide, inhaler, 2 active puffs by mouth twice a day for breathing, and an epi-pen injector, inject one unit active intramuscularly as needed. An October 2015 VA primary care treatment record indicates that the Veteran's asthma was generally under good control with no recent exacerbations. He used an inhaled steroid/LABA. The assessment was asthma, stable and continue with his medications. A May 2016 VA primary care record indicates that the Veteran sought medical treatment for exertional fatigue; it was noted that the Veteran noted gradual progression of exertional fatigue for at least the last 2 to 3 years. The primary care doctor noted that this probably dates back as far as his 2010 valve replacement surgery as they talked about the symptoms then. The Veteran noted a feeling of muscle fatigue when doing activities such as walking up a hill fast, accompanied by "huffing and puffing," but no wheezing or chest pain. He exercised at the gym regularly, but takes his time there and does not note the same symptoms. He had some cough with white sputum. He has not tried using his albuterol either before or when he gets these symptoms. The primary care physician noted that the PFTs done in March for C&P evaluation indicate some decline in spirometric values from previous in 2011, but with significant post-bronchodilator improvement. The doctor noted that the Veteran was on reasonable asthma therapy but they will check his allergen panel as this might guide additional therapy. The Veteran was advised to use the albuterol prior to exercise and contact his cardiologist for reevaluation of his cardiac conditions. An October 2016 VA primary care record indicates that the Veteran's asthma was stable on medications and that the Veteran had no recent exacerbations. A January 2017 VA primary care treatment record indicates that the Veteran was seen for evaluation of upper respiratory infection symptoms. It was noted that he has had increased minimally productive cough for the past week, associated with increased dyspnea and use of his albuterol rescue inhaler, but not with any fever or chest pain. He has some chronic nasal congestion, worse at night, but the assessment was upper respiratory infection, likely viral, with evidence of mild-moderate asthma exacerbation based on increased dyspnea and albuterol use. The treatment was a course of oral steroids; antibiotics were withheld as there was no clinical evidence to suggest pneumonia and the current evidence does not support antibiotics for use in asthma exacerbation alone. It was noted that the Veteran would contact VA if he had worsening symptoms or no improvement. A May 2017 VA primary care record indicates that the asthma has generally been under good control with no recent exacerbations and the Veteran used an inhaled steroid/LABA. Upon review, the Board finds that the weight of the competent and credible evidence is consistent with a 30 percent disability rating for the Veteran's service-connected bronchial asthma. The Veteran's FEV-1/FVC was 71 percent or greater which is consistent with a 10 percent disability rating, but given the Veteran's consistent need of daily inhalational and anti-inflammatory medication, the Board finds that the weight of the evidence is consistent with a 30 percent disability rating. The Board finds that the Veteran's service-connected bronchial asthma does not more nearly approximate a 60 percent or greater disability rating. Pulmonary function test scores show that the FEV-1/FVC is greater than 70 percent. The record shows that the Veteran has received ongoing treatment for his asthma, but his treatments have been three or four months apart, not monthly. The evidence does not show that he is making monthly visits for required care of exacerbations. VA treatment records show that during the pendency of this appeal, the asthma was described as stable in October 2015. In May 2016, the Veteran sought medical treatment for exertional fatigue. The primary care physician indicated that a reasonable diagnosis was worsening asthma, cardiac dysfunction (e.g. valvular dysfunction, recurrent CAD), age-related decline, less likely his hypogonadism. The primary care doctor stated that the Veteran was on reasonable asthma therapy but the Veteran's allergen panel would be checked as this might guide additional therapy and the Veteran was advised to use his albuterol prior to exercise. An October 2016 VA primary care treatment note indicates that the Veteran asthma was stable on medications and he had no recent exacerbations. A January 2017 VA primary care treatment note indicates that the Veteran had a history of stable asthma and the Veteran was maintained on Symbicort and montelukast. The Veteran sought medical evaluation at that time for upper respiratory symptoms; he has had increased minimally productive cough for the past week associated with increased dyspnea and use of his albuterol rescue inhaler, but not with any fever or chest pain. The assessment was upper respiratory infection likely viral with evidence of mild to moderate asthma exacerbation based on the increased dyspnea and albuterol use. The Veteran was treated with a course of oral steroids and the Veteran was advised to contact VA if there were worsening symptoms or no improvement. A May 2017 VA primary care record indicates that that asthma was generally under good control. The evidence does not show that the Veteran has had regular exacerbations of symptoms. There is no evidence of required hospitalization or intubation for his asthma. The record does not establish monthly or weekly attacks or exacerbations. The record does not show intermittent (at least three times a year) courses of systemic (oral or parenteral) corticosteroids. The record shows one course of systemic corticosteroids in the past 12 months. The evidence does not show a course of systemic (oral or parenteral) corticosteroids in 2016 or 2015. The evidence does not show that the Veteran experiences more than one attack of asthma per week with episodes of respiratory failure, or the Veteran requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. The record shows that the Veteran uses daily inhalational and anti-histamine therapy during the pendency of the appeal which is contemplated by the 30 percent disability rating. Overall the evidence does not show that the Veteran's asthma disability more nearly approximates the criteria for a rating in excess of 30 percent under Diagnostic Code 6602. The Veteran argues that he uses systemic parenteral corticosteroids daily for the treatment of the asthma. See the November 2016 notice of disagreement. He asserts that the use of the corticosteroids twice daily warrants a 100 percent rating. See the July 2017 substantive appeal. The Board finds that the weight of the competent and credible evidence shows that the Veteran does not require daily use of systemic (oral and parenteral) high dose corticosteroids or immuno-suppressive medications or intermittent (at least three times a years) courses of systemic (oral and parenteral) corticosteroids for treatment the service-connected bronchial asthma. The March 2016 VA examiner specifically considered the current medications that Veteran was currently taking to treat the asthma and the medications were listed as Albuterol and Symbicort (Budesonide). The VA examiner stated that these medications were inhalational bronchodilator therapy and inhalational anti-inflammatory medication not oral or parenteral corticosteroid medications. The VA examiner specifically considered the Veteran's treatment at VA for the asthma during the course of the appeal. The Board finds that the March 2016 VA opinion to be highly probative since the VA examiner is qualified, as a nurse practitioner, through education, training, and experience, to offer a medical opinion as to the type of medication and treatment the Veteran is taking and undergoing for the asthma. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The record shows that the VA examiner reviewed the claims folder including the history of treatment for the asthma, considered the Veteran's report of symptoms, considered the results of the PFT's, and examined the Veteran. The VA examiner provided a medical conclusion based upon the exam findings and history. The medical opinion is based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the March 2016 VA medical opinion is consistent with the evidence of record and is supported by the September 2008 VA medical opinion as to the type of treatment the Veteran was undergoing for the asthma. The Board finds that the March 2016 VA medical opinion outweighs the Veteran's own lay assertions that he requires the daily or intermittent use of systemic (oral and pararenal) corticosteroids for treatment of the asthma. The Veteran, as a lay person, is competent to describe observable symptoms and first hand events. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); as to the specific issue in this case, an opinion as to the type of treatment the Veteran is undergoing for the asthma and the characterization of the specific medications he is taking falls outside the realm of common knowledge of a lay person. There is no evidence that the Veteran has medical expertise or training to render this medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, the Board finds that the Veteran's lay statements that he is taking daily or intermittent systemic corticosteroids for asthma are not competent evidence and are outweighed by the March 2016 VA medical opinion. The weight of the competent and credible evidence shows that the Veteran does not require daily use of systemic (oral and parenteral) high dose corticosteroids or immuno-suppressive medications or intermittent (at least three times a years) courses of systemic (oral and parenteral) corticosteroids for treatment the service-connected bronchial asthma. Accordingly, the Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for bronchial asthma at any time during the appeal period. Thus, there is no doubt to be favorably resolved. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski 1 Vet. App. 49 (1990). The claim for an increased rating is denied. ORDER Entitlement to an increased disability rating in excess of 30 percent for the service-connected bronchial asthma is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs