Citation Nr: 1736590	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-46 932A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased rating for bronchial asthma, currently evaluated as 60 percent disabling.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Underwood, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1987 to January 1992.

This matter came to the Board of Veterans' Appeals (Board) from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In April 2012, the Veteran testified at a hearing before an Acting Veterans Law Judge (AVLJ); this AVLJ is no longer with the Board.  In March 2013, the Veteran elected to have another hearing before the Board.  The hearing was scheduled in May 2013; however, he failed to appear and his hearing request is now deemed withdrawn.  38 C.F.R. § 20.704 (2015).

This matter was remanded in October 2013 and August 2014.  Then, in September 2015, the Board denied entitlement to an increased rating for bronchial asthma.  The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a July 2016 Joint Motion for Partial Remand (JMPR) and Court Order, the Board's decision was vacated and remanded for action consistent with the JMPR.

In December 2016, the issue of entitlement to an increased rating for bronchial asthma for the period from March 12, 2014, was remanded to the RO.


FINDINGS OF FACT

1.  For the period from March 12, 2014 to December 28, 2016, the Veteran's bronchial asthma required the use of systemic moderately dosed corticosteroids.

2.  For the period from December 29, 2016, the Veteran's bronchial asthma requires the use of systemic high dosed corticosteroids.



CONCLUSIONS OF LAW

1.  For the period from March 12, 2014 to December 28, 2016, the criteria for a schedular rating in excess of 60 percent for bronchial asthma have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6602 (2016).

2.  For the period from December 29, 2016 the criteria for a schedular rating of 100 percent for bronchial asthma have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6602 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Procedural Duties

VA is required to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103 (a); 
38 C.F.R. § 3.159 (b)(1) (2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, VA provided the Veteran with proper notification in April and June 2009 letters that contained all the information required by Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  It was provided to the Veteran prior to the initial adjudication of his claims.  The duty to notify has been met. 

The Board also finds that the duty to assist has been met.  The Veteran's VA treatment records have been obtained, as have some private treatment records to include from Medical Center of Arlington, Allergy and Asthma Center of the Metroplex, and the office of Dr. H.B., M.D. PA.

The Board finds that the development requested in the prior remands has been completed to the extent that is possible. 

The December 2016 remand requested that the Veteran identify all medical providers for the period from March 12, 2014, and that he complete appropriate information release forms for Village Medical Center; Dr. H.B., (a provider at Village Medical Center); and any other identified medical providers.  In response, the Veteran submitted one December 2016 addendum opinion from Dr. H.B.; and submitted 21 pages of medical records from the Allergy and Asthma Centres of the Metroplex that did not apply to the period from March 12, 2014.  VBMS, 01/03/2017, Medical Treatment Record - Non-Government Facility, Test results, Medication refill 1,3; VBMS, 01/03/2017, Medical Treatment Record - Non-Government Facility Allergy & Asthma Center of the Metroplex 1-21.

While VA has a duty to assist the Veteran in the development of his claims, the Veteran has a duty to cooperate with VA.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  As the Veteran has not shown good cause failing to submit appropriate information release forms, the Board finds that the development requested by the prior remands has been completed, the duty to assist has been met, and the Board may proceed with adjudication of his claim.  The Board concludes that VA has no remaining duty to provide in conjunction with these claims.

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal.

II.  Legal Criteria

Increased Rating

The Board has reviewed all of the evidence in the virtual folder. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  As an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21. 

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 
1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10. 

Bronchial asthma is evaluated, in part, based upon the results of pulmonary function tests (PFTs), specified in terms of forced expiratory volume in one second (FEV-1) and forced vital capacity (FVC).  38 C.F.R. §§ 4.96, 4.97.  When evaluating asthma based on PFTs, the post-bronchodilator results are used unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  38 C.F.R. § 4.96 (d)(5).  In such cases the pre-bronchodilator results are to be used.  Id.  

Rating Criteria

The Veteran's bronchial asthma is rated 60 percent disabling pursuant to 38 C.F.R. 
§ 4.97, Diagnostic Code (DC) 6602 for asthma, bronchial.  Under DC 6602, a 60 percent rating is assigned for an 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 3 times per year) course of systemic (oral or parenteral) corticosteroids.  A maximum 100 percent rating is assigned under DC 6602 for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications.  See 38 C.F.R. § 4.97, DC 6602.

III.  Factual Background

The Veteran contends that his service-connected bronchial asthma warrants a rating in excess of 60 percent.  He filed an increased rating claim on March 17, 2009.  

In the December 2016 remand it was found that the claims file did not contain the entirety of the Veteran's treatment records.  In the remand, the Board noted that in September 2016, Dr. H.B., a private provider with Village Medical Center, reflected that the Veteran had been on Prednisone for the past two years at 10 mg twice daily.  Additionally, the remand reported a note in H.B.'s September 2016 treatment record stating that the Veteran received a pulmonary function test in August 2016 from additional providers at Village Medical Center.  The Board therefore found that evidence of the Veteran's treatment at this facility must be further developed.  38 C.F.R. § 3.159 (c)(1).

A January 2017 VA letter requested that the Veteran complete and submit VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information, in order to assist VA with the development of his case.  The Veteran did not complete and return either of these forms; instead he submitted two sets of documents for the claims file:  The first document that he submitted was a December 2016 addendum opinion from H.B., reviewing H.B.'s September 2016 opinion.  H.B. reiterated that the Veteran should decrease his Prednisone dosage; however he prescribed him 40 mg of Prednisone per day.  VBMS, 01/03/2017, Medical Treatment Record, Non-Government Facility (Test results, Medication refill) at 2.  

The second set of documents that the Veteran submitted were additional private treatment records from the Allergy and Asthma Centres of the Metroplex.  None of these documents were from the period beginning March 12, 2014.  Instead, this set of documents contained medical treatment records from: 01/06/2009; 03/06/2009; 06/22/2009; 01/19/2010; 06/28/2010; and 01/27/2014. 2.  VBMS, 01/03/2017, Medical Treatment Record, Non-Government Facility (Allergy & Asthma Center of the Metroplex).  

The Veteran did not submit any further treatment records or information.

VA's Legacy Content Manager Documents show that the Veteran had a March 2015 VA ambulatory care visit consisting of a computed tomography angiography (CTA) and a trachea midline examination.  The physician found no crackles, no wheezes, and even and easy respirations.  Severe asthma was confirmed, but the Veteran reported feeling that his asthma was stable.  VA Legacy Content Manager, 05/17/2017, CAPRI, Clinical Documents 67, 71.

IV.  Legal Analysis

Analysis
PFT Results

As noted above, under DC 6602, pertaining to asthma, bronchial, a 100 percent rating is assigned when FEV-1 and FEV-1/FVC test results are less than 40 percent.  A FEV-1 of 40-55 percent predicted or an FEV-1/FVC result of 40 - 55 percent is required for a 60 percent rating.  Records in the claims file from March 12, 2014 to the present show that only one FEV-1 and FEV-1/FVC test was administered (in September 2016) with the following results - FEV-1/FVC:  Trial 1/78.2; Trial 2/78.5; Trial 3/79.3.   FEV-1 - 73 percent predicted.  VBMS, Medical Treatment Record - Non-Government Facility, Dr. H.B. Records at 4.  These results were better than the December 2013 score that met VA's requirement for a 100 percent disability rating.  Therefore, the Veteran has not met the PFT thresholds needed to meet a 60 or 100 percent disability rating pursuant to this part of DC 6602. 

Asthma Attack Rates/Medical Care

An alternative means of receiving 100 percent disability pursuant to DC 6602 is if the Veteran has more than one asthma attack per week with respiratory failure.  A 60 percent disability rating requires at least monthly visits to a physician for required care of exacerbations.  Here, the claims file does not show evidence that the Veteran was experiencing one or more attack per week, along with respiratory failure.  Rather, the record only shows monthly visits for asthma care from the period of March 12, 2014.  See e.g. VBMS, 10/17/2016, Medical Treatment Record - Non-Government Facility 2, 4, 10; VBMS, 01/03/2017, Medical Treatment Record - Non-Government Facility at  2.


Corticosteroid Usage

Finally, the Veteran could also reach a 100 percent disability rating under DC 6602 if there is evidence of daily systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications.  See 38 C.F.R. § 4.97, DC 6602.  In order to meet a 60 percent disability rating, the Veteran is required to have undergone intermittent courses or bursts of systemic (oral or parenteral) corticosteroids.  

Corticosteroid Usage for the Period from March 12, 2014 - December 28, 2016

In September 2016, H.B. noted that the Veteran had been taking 20 mg of Prednisone, (a corticosteroid), daily since September 2014 and assessed that the dosage should be lowered.  VBMS, 10/17/2016, Medical Treatment Record - Non-Government Facility, Dr. H.B. Records, 10 mg Prednisone since 09/14 at 2.  During this visit, H.B. continued to prescribe the Veteran 20 mg of Prednisone, which the Board finds to be a moderate dose.  In reaching this finding, the Board notes that the smallest dosage for this drug appears to be a 5mg pill.  It would appear then, that two pills a day (as this drug is often taken twice daily) at this lowest dosage (10mg a day) would constitute a low dosage.  The 20mg daily intake therefore would appear to appropriately be categorized as "moderate."   

Give the above, this evidence does not satisfy the requirements for a 100 percent rating for the period of March 12, 2014 - December 28, 2016.  

Corticosteroid Usage for the Period from December 29, 2016

The Veteran again visited H.B. in December 2016.  H.B. continued to assess that the Veteran's dosage should be lowered, but in contradiction to that finding he prescribed him 40 mg of Prednisone per day.  The Board finds that 40 mg qualifies as a high dose.  Indeed, this is double the dosage that was earlier deemed to be "moderate."  Therefore, for the rating period from December 29, 2016, the Veteran satisfies the requirements for a 100 percent rating pursuant to DC 6602.



ORDER

For the rating period from March 12, 2014 to December 28, 2016, entitlement to a disability rating in excess of 60 percent for bronchial asthma is denied.

For the rating period from December 29, 2016, entitlement to a 100 percent disability rating for bronchial asthma is granted.




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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