Citation Nr: 18143112 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-10 859 DATE: October 18, 2018 ORDER Entitlement to an initial increased disability rating of 30 percent, but no higher, for service-connected asthma exposure is granted. REMANDED Entitlement to a compensable disability rating prior to January 23, 2017, and in excess of 30 percent from January 23, 2017 for headaches is remanded. Entitlement to an increased disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, service-connected asthma required daily inhalational therapy and has been manifested by FEV-1/FVC ratio result of 70 percent predicted.   CONCLUSION OF LAW The criteria for a disability rating of 30 percent, but no higher, for asthma have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 6602 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to October 1985, from August 2001 to April 2002, and from August 2004 to January 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. According to a January 2017 rating decision, the Veteran’s service-connected headaches was increased from 0 to 30 percent, effective January 23, 2017. As higher ratings for this disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remained viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). After the RO certified this case to the Board in March 2017, it received a July 2017 statement, received more than 90 days following the mailing of notice for certification of the appeal, which requested a personal hearing with a Decision Review Officer (DRO). It appears that this request was filed regarding the claim for TDIU. As regarding this appeal, in addition to being untimely (i.e., the request was made more than 90 days following notice of certification of the appeal to the Board), the hearing request was not mailed to the Board as required. 38 C.F.R. § 20.1304(a) (2018) (a request for a personal hearing “must be submitted directly to the Board and not to the agency of original jurisdiction.”). Moreover, the Veteran has not provided any evidence showing good cause for the delay in requesting a DRO hearing. For these reasons, the Board finds that the Veteran is not entitled to a hearing at this time on the issues certified on appeal. The issue of entitlement to an earlier effective date for the grant of a total rating based on individual unemployability (TDIU) has been raised by the record, but is not currently on appeal. TDIU was granted in a November 2017 rating decision. Therefore, the Board does not have jurisdiction over this issue, and it is REFERRED to the RO for appropriate action, if any. Entitlement to an increased disability rating in excess of 10 percent for service-connected asthma Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When the RO granted the Veteran’s claim of entitlement to service connection for asthma, it assigned a disability rating of 10 percent throughout the claim period under 38 C.F.R. § 4.97, Diagnostic Code 6602. The Veteran contends that the symptoms of that disability entitle him to a higher initial rating. Under Diagnostic Code 6602, a 10 percent rating is warranted if pulmonary function testing (PFT) reveal an FEV-1 of 71 to 80 percent predicted, or; an FEV-1/FVC ratio of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for an FEV-1 of 56 to 70 percent predicted, or; an FEV-1/FVC ratio of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for an FEV-1 of 40 to 55 percent predicted, or; an FEV-1/FVC ratio 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 an FEV-1 of less than 40 percent predicted, or; an FEV-1/FVC ratio of 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. PFT results are generally reported before and after the administration of bronchodilator therapy. Although VA regulations instruct that post-bronchodilator results be used when considering PFT criteria for ratings under Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845, see 38 C.F.R. § 4.96 (d)(4) (2018), there are no regulations identifying whether pre- or post-bronchodilator results should be used when determining disability ratings under Diagnostic Code 6602. The Veteran was afforded a VA respiratory examination in May 2014. The examination report indicated that asthma required the use of intermittent courses or bursts of systemic (oral or parenteral) corticosteroids and intermittent inhalational bronchodilator therapy. The Veteran indicated he quit using the inhaled anti-inflammatory (Mometasone) a month prior but was supposed to use it daily. The Veteran’s respiratory condition did not require the use of oral bronchodilators, antibiotics over the past 12 months, or outpatient oxygen therapy. The Veteran was seen by his primary care physician in October 2013 and reported more frequent use of Albuterol and that his asthma was poorly controlled. The PFT conducted in May 2014 revealed pre-bronchodilator predicted FEV-1 at 76 percent and predicted FEV-1/FVC at 70 percent. The post-bronchodilator predicted FEV-1 at 88 percent and FEV-1/FVC at 73 percent. The VA examiner noted that the FEV-1/FVC percent most accurately reflected the Veteran’s level of disability. Furthermore, the Veteran’s asthma impacted his ability to work as it was aggravated by exposure to pollen, smoke, and physical exertion. According to VA treatment records dated August 2016, the Veteran reported has been using his Albuterol two to three times a day, needing this when he does any physical activity. In December 2016, the Veteran reported asthma related shortness of breath and wheezing with inhaler relief. The Veteran underwent another VA examination in January 2017 where a diagnosis of asthma was confirmed. The VA examiner noted the Veteran’s asthma required intermittent inhalational bronchodilator therapy but not oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran did not have any asthma attacks with episodes of respiratory failure in the past 12 months or physician visits for required care of exacerbation. The PFT conducted on September 2016 revealed pre-bronchodilator FEV-1 at 76 percent and predicted FEV-1/FVC at 72 percent. The post-bronchodilator FEV-1 at 80 percent predicted and FEV-1/FVC at 76 percent. The VA examiner noted that the FEV-1 percent predicted most accurately reflected the Veteran’s level of disability. Furthermore, the Veteran’s asthma did not impact his ability to work. The VA treatment records consistently indicate that Albuterol was an active outpatient medication prescribed to the Veteran. The instructions indicate he was to inhale two puffs by mouth every six hours as needed for shortness of breath. Based on the foregoing evidence, the Board finds that a 30 percent evaluation, but no higher, is warranted in this case. The VA examiner in May 2014 noted that the evidence shows the pre-bronchodilator predicted FEV-1/FVC was at 70 percent. Furthermore, the evidence of record also establishes that the Veteran relies on the daily use of Albuterol, an inhalational bronchodilator therapy, to manage his symptoms. Although the 2017 VA examination report did not include PFT results that would support a 30 percent evaluation, the treatment records noted prescribed daily inhalational therapy. Therefore, resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s asthma merits a rating of 30 percent throughout the time period. 38 C.F.R. § 4.91, Diagnostic Code 6602. A disability rating in excess of 30 percent, however, is not warranted as these records do not indicate pulmonary function tests results showing 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. Therefore, a rating in excess of 30 percent is not warranted. 38 C.F.R. § 4.97, Diagnostic Code 6602. REASONS FOR REMAND 1. Entitlement to a compensable disability rating prior to January 23, 2017, and in excess of 30 percent from January 23, 2017 for headaches. Remand is required to afford the Veteran a VA examination. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran was last afforded a VA examination for his headaches in January 2017. However, according to a March 2017 VA telephone encounter note, the Veteran indicated his headaches worsened in the past few months. In May 2017, the Veteran reported continuing headaches and that his new medication was not working. As such, the Board finds that a remand is also necessary to obtain a new examination regarding the current severity of the Veteran’s headaches. 2. Entitlement to an increased disability rating in excess of 50 percent for PTSD. Remand is required for the issuance of a supplemental statement of the case (SSOC). After the issuance of a January 2017 SSOC and following certification of the appeal to the Board in March 2017, additional, pertinent evidence has been added to the record. Specifically, a March 2017 Disability Benefits Questionnaire (DBQ) regarding the Veteran’s service-connected PTSD and an August 2017 private medical assessment of the Veteran’s PTSD, were associated with the claims file. In addition, updated VA treatment records, which include records concerning psychiatric treatment, were associated with the claims file. The AOJ must furnish the Veteran and his representative a SSOC if the AOJ receives additional, pertinent evidence after an SOC or the most recent SSOC has been issued and before the appeal is certified to the Board. 38 C.F.R. § 19.31 (2018). Furthermore, any pertinent evidence submitted by a claimant or his or her representative after an appeal is certified to the Board must be referred to the AOJ, unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304 (c) (2018); see Disabled American Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Significantly, if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the claimant or his or her representative explicitly requests AOJ consideration. See The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, § 501, Pub L. 112-154, 126 Stat. 1165 (Aug. 6, 2012). Although in the instant case, the Veteran’s substantive appeal with respect to the issue on appeal was filed in March 2016, the March 2017 DBQ report and the updated VA treatment records, mentioned above, were not submitted by the Veteran or his representative, but rather, they were generated by the VA. Thus, the automatic waiver provision does not apply in this case. See 38 U.S.C. § 7105(e) (providing for initial review by the Board “if the claimant or the claimant’s representative... submits evidence”) (emphasis added). Further, there is no such waiver here. Under these circumstances, the Board will remand for the issuance of an SSOC reflecting such consideration. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment after November 13, 2017. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected headaches. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner must report all signs and symptoms necessary for evaluation of the Veteran’s headaches in accordance with VA rating criteria. The examiner is also asked to consider and discuss the Veteran’s lay statements regarding his symptomatology. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After considering any additional evidence received, to specifically include the March 2017 DBQ report regarding the Veteran’s PTSD and the updated VA treatment records, and undertaking any additional development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted in full, the Veteran and his representative should be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yoo, Counsel