Citation Nr: 0000139 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 95-41 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for bronchial asthma, currently evaluated at 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.A. Howell, Associate Counsel INTRODUCTION The veteran served on active duty from August 1978 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which initially denied an evaluation higher than 10 percent for the veteran's bronchial asthma. His disability rating was subsequently increased to 30 percent by a rating decision dated in December 1995 and made effective for the entire time under appeal. However, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeal) (the Veterans Claims Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v. Derwinski, 1 Vet. App. 160 (1991). Consequently, as the veteran has not withdrawn the appeal, the issue of an increased evaluation above the current 30 percent remains in appellate status. This claim was remanded for further development by the Board in January 1997. The development requested has been accomplished to the extent possible, and the claim has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The RO has developed all evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's asthma is manifested by subjective complaints of dyspnea on exertion and shortness of breath, and current objective findings of daily use of multiple inhalers and oral medications; however, there is no current objective clinical evidence of monthly exacerbations or systemic steroid use three times per year, or prior findings that more than light manual labor precluded. 3. Ventilatory studies were said to reveal moderate defect, with evidence of mild hypoxemia. There was no airflow limitation, and repeat studies were undertaken, and reportedly revealed some poor cooperation. No evidence of more significant pulmonary impairment was shown. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6602 (1996), (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board determines that the veteran's claim for an increased rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) by virtue of his statements that he has suffered an increase in his disabilities. See Drosky v. Brown, 10 Vet. App. 251, 254 (1997). Further, the Board finds that all relevant facts have been properly developed and no additional assistance to the veteran is required to comply with the duty-to-assist mandated by 38 U.S.C.A. § 5107(a). Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. Part 4 (1999). However, the Board will consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). Finally, the degree of impairment resulting from a disability is a factual determination with the Board's primary focus upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board is also mindful that it must review "all the evidence of record (not just evidence not previously considered) once a claimant has submitted a well- grounded claim for an increased disability rating." Swanson v. West, 12 Vet. App. 442 (1999); Hazan v. Gober, 10 Vet. App. 511, 521 (1997). Considering the factors as enumerated in the applicable rating criteria, which is the most probative evidence to consider in determining the appropriate disability rating to be assigned, the Board finds that the evidence does not reflect that an increased rating is warranted at this time. Historically, the veteran was service-connected for asthma by rating decision dated in November 1982. In September 1994, he filed the current claim for an increased rating. During the pendency of the appeal, the regulations regarding the respiratory system, including those associated with asthma, were changed effective in October 1996. However, as discussed below, the Board finds that higher evaluation would not be appropriate under either the new or the old regulations. The RO has rated the veteran's bronchial asthma under DC 6602. Under the old regulations, a 10 percent evaluation was warranted for mild bronchial asthma with paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks. A 30 percent evaluation could be assigned with moderate symptoms, including asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent evaluation was warranted for severe asthma, including frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication, more than light manual labor precluded. Finally, a 100 percent evaluation was warranted with asthmatic attacks very frequently with severe dyspnea on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health. 38 C.F.R. § 4.97, DC 6602 (1996). Under the current regulations, an FEV-1 less than 40-percent of predicted value, 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 warrants a 100 percent rating. 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 three per year) courses of systemic (oral or parenteral) corticosteroids warrants a 60 percent rating. An 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 warrants a 30 percent rating. Finally, an FEV-1 of 71- to 80-percent predicted, or; FEV- 1/FVC of 71 to 80 percent, or; intermittent inhalation or oral bronchodilator therapy warrants a 10 percent rating. 38 C.F.R. § 4.97, DC 6602 (1999). In the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. Outpatient treatment notes reveal that in October 1993, the veteran sought a medication refill for Maxair, which he used several times daily. At that time, his lungs were clear. A medical clinic note dated in November 1993 indicated that his asthma was under control but he complained that his heart was out of synch. Several times in 1994, he sought treatment for a variety of unrelated medical problems but no mention was made of asthma. In June 1994, he was treated for acute bronchitis with antibiotics. In July 1994, he complained of a chest cold for three weeks and obtained refills on his antibiotics. He was found to be in no acute distress at that time. He sought treatment in September 1994 for complaints of asthma bothering him for a few months. Physical examination demonstrated fine expiratory wheezes and he was diagnosed with asthmatic bronchitis and he obtained a refill of Maxair. In September 1994, he filed a claim for an increased rating. In an October 1994 VA trachea examination report, veteran related a history bronchial asthma since service with recurrent episodes since then. Medications included multiple inhalers taken 6-7 times per day. Physical examination revealed expiratory wheezing with a respiratory rate of 18-20 per minute. The diagnosis was chronic bronchial asthma by history. In a November 3, 1995, letter, David L. Berndt, D.O. indicated that he had reviewed the veteran's medical record from 1991 through 1995 from the VA hospital in Oakland Park, and noted that the veteran suffered from chronic asthmatic bronchitis and asthma. He reported that the veteran took the following medications on a daily basis: Ventolin Inhaler, Atrovent Inhaler, Serevent Inhaler, and Prednisone 5 mg. Dr. Berndt indicated that the veteran reported a productive cough and dyspnea on slight exertion, and that the veteran was positive for steroid use on a daily basis. In October 1996, the respiratory regulations changed. Private medical records from James A. Lucio, M.D. indicate that the veteran was treated with Bactrim, Proventil inhaler, and Albuterol nebs in April 1997. In October 1997, he was treated with a six day course of Prednisone. Other medications noted on the medication log at that time included Bactrim, Vancenase inhaler, Lanceril inhaler, Albuterol inhaler, and Maxair as needed. Medications in July 1998 included Pulmicort inhaler, Singulair, and Alupent nebs. In August 1998, the veteran received an intramuscular injection of steroid (Decadron). In September 1998, his medications included Pulmicort inhaler, Roxin for 7 days, Volmax, Serevent inhaler, and Singulair. VA outpatient treatment records reveal that the veteran sought treatment in October 1997 for a two day history of exacerbated asthma. He reported chest congestion and could not breathe right. Physical examination showed expiratory wheezes and course breath sounds. He was advised to take two days off work, and placed on Prednisone in tapering doses, in addition to Septra, Atrovent inhaler, Proventil inhaler, and Vancenase inhaler and instructed to return to the clinical in 10 days. Apparently he improved because there is no follow- up in the file until February 1998 when he complained of shortness of breath and cough and had lost his Atrovent inhaler and needed a refill. In June 1998, the veteran underwent pulmonary function testing (PFTs). Although the PFTs are not associated with the claims file, the medical interpretation report notes a moderate ventilatory defect with no airflow limitation, suggestive of overinflation. Arterial blood gases on room air at rest showed mild hypoxemia. There was no significant change during ambulation. Normal acid-base balance was noted. The examiner reported that the repeat FEV-1 and flow volume loop suggested poor cooperation and that the results should be interpreted with caution. In a July 1998 VA examination report, the examiner noted that he had thoroughly reviewed the claims file prior to the examination. The veteran related that he was diagnosed with asthma while on active duty and was discharged early because of persistent symptomatology. Since discharge, he had been under consistent medical care and on various medications. Medications included an Atrovent inhaler as necessary for symptomatology, Singulair twice a day, and a steroid inhaler daily. He complained of intermittent wheezing, shortness of breath, especially with exertion, tightness in the chest at times, a nonproductive cough, and exertional limitations. He denied orthopnea, paroxysmal nocturnal dyspnea, hemoptysis, or cardiovascular or hypertensive problems. He had been working as a letter carrier for 15 years. He had frequent episodes of bronchitis but had not been hospitalized but had been treated in the emergency room several times yearly, with the last time approximately one year previously. With repeated episodes of bronchitis, he tended to miss work two or three times yearly. Physical examination revealed that the veteran was well- developed, well-nourished, and obese with no acute symptomatology. Respiratory rate was normal, the PA diameter of the chest was somewhat increased, breath sounds were distant, and there were scattered expiratory wheezes and squeaks, particularly at the bases. There were no gross rales or rhonchi and no effusions. When asked to take a deep breath, the veteran tended to develop a harsh, nonproductive cough, consistent with severe bronchial spasm. The final diagnoses included bronchial asthma. The examiner concluded that the veteran had been working as a letter carrier for 15 years and that was about his only exercise. He used the Atrovent inhaler two or three times daily during his work schedule, which gave him relief of any discomfort he had. He missed work two or three times yearly because of bronchitis but had not required hospitalization. There was no loss of weight, and the examiner remarked that the condition appeared to be stable under consistent medical care and medication, and there was no evidence of impairment of health. In support of his claim, the veteran submitted a letter by his then-girlfriend, now-wife to the effect that she had known the veteran for nearly five years and had personally witnessed him needing a breathing treatment due to shortness of breath. She had observed him have bronchitis on many occasions due to asthma and noted that it seemed to be a regular occurrence in his life. She noted that he also used various inhalants and steroids daily to just maintain. She concluded that breathing was a daily struggle for him. In a September 1998 letter, Dr. Lucio related that the veteran had been treated in his practice group since April 1997 and that he had personally treated the veteran since October 1997. Dr. Lucio noted that the veteran had had multiple visits to the office for evaluation and treatment of moderate persistent asthma. The veteran had exhibited persistent bronchospasm despite maximum medical therapy and it was Dr. Lucio's opinion that the veteran's refractory and recalcitrant asthma warranted strong consideration for disability. He noted that the veteran was chronically short of breath and was unable to perform even simple tasks due to the severity of his shortness of breath. He concluded that the veteran required intensive therapy and used multiple inhaled medications, as well as various oral medications, in an effort to control the inflammation normally seen with persistent asthma. Based on a review of the evidence, the Board finds that there is no basis to assign an evaluation in excess of 30 percent for asthma under the criteria in effect prior to October 7, 1996. Specifically, outpatient treatment records show treatment for bronchitis on several occasions, several months apart. Although the veteran continued to be treated with multiple inhalers, a November 1993 note observed that the veteran's asthma was under control. Thus, there is no evidence of frequent asthma attacks and it appeared that his medication kept the condition under reasonable control most of the time. In June and July 1994, he received treatment for bronchitis and was treated with antibiotics apparently successfully. In September 1994, he experienced a flare-up of asthma; however, there is no evidence that it was not brought under control with medication. Further, there is no evidence of that the veteran was unable to perform more than light manual labor as indicated later by evidence that he worked as a letter carrier for many years. Finally, although a November 1995 letter from a private treating osteopath indicated that the veteran's medications included steroids, the Board finds that the necessity for steroids on apparently that one occasion is not sufficient, in and of itself, to warrant a 60 percent rating under the old respiratory criteria. Thus, the Board concludes that the veteran's 30 percent evaluation for asthma is appropriate under the criteria in effect prior to October 7, 1996. It is further the conclusion of the Board that a rating in excess of 30 percent is not warranted under the new respiratory regulations as well. As noted above, under the new criteria, a 60 percent evaluation is warranted for PFTs at a certain level or with at least monthly visits to the physician for exacerbations or at least three per courses of systemic steroids per year. In this case, the Board observes that the veteran underwent PFT testing in June 1998. Although the results themselves are not associated with the claims file, a medical interpretation is of record. Of note, in reviewing the PFT results, the medical examiner interpreting the PFT raised the issue relative to the veteran's cooperation with the testing. Therefore, even if the results themselves were associated with the claims file and regardless of the actual numbers, they would be tempered with the observation of poor cooperation on the part of the veteran and would not be dispositive. Further, the examiner interpreted the PFTs to show a "moderate" ventilatory defect, which would be consistent with a 30 percent rating under the old criteria. It was noted that there was no airflow limitation and mild hypoxemia on room air. This suggests to the Board that the 30 percent rating would also be appropriate under the new criteria as well. Next, there is no evidence of sustained monthly visits to the physician for exacerbations of asthma. The veteran asserts that if he did not receive medication through the mail, he would be required to visit the doctor every month. The Board must point out that the regulations does not simply mean visits to the doctor monthly; rather, a higher rating would require monthly visits for exacerbations of the disability. In this case, the veteran has been to the doctor on multiple occasions for shortness of breath and coughing; however, many of those visits have been for follow-up and not for acute exacerbations of asthma. Further, the Board recognizes that the veteran has been prescribed multiple medications for treatment of asthma, but it appears that he was prescribed systemic steroids (oral or parenteral, as opposed to inhaler) only once in 1995 (Prednisone), once in 1997 (Prednisone in tapering doses), and once in 1998 (intramuscular Decadron). Therefore, his use of systemic corticosteroids does not satisfy the 60 percent criteria for asthma. In addition, except for the mention of two days off work in October 1997, it does not appear that the veteran has missed a significant amount of time from work due to exacerbations of asthma. This is suggestive that, although he is on multiple medications, his disability is under relative control, at least for evaluation purposes. This is further supported by the most recent VA examination report dated in July 1998 which noted that the veteran had not been treated for bronchitis for approximately one year and that the condition appeared to be stable under consistent medical care and medication. Accordingly, in view of the above, the Board concludes that the evidence supports no more than a 30 percent evaluation for bronchial asthma under the criteria in effect from October 7, 1996. The record clearly establishes that the veteran has experienced recurrent episodes of asthma, which have required continuous, on-going management with multiple prescription drugs to alleviate his symptomatology. The Board further acknowledges that the evidence shows that he has experienced several exacerbations over the course of the last few years as evidenced by the medical records and statements from his private doctors as to the level of therapy required for persistent asthma. However, an overall review of the medical evidence suggests that the veteran's asthma disability is under relative control for rating purposes as he had not had monthly doctor visits for exacerbations nor the need for intermittent systemic steroids (defined as at least three times per year). Further, the veteran works as a mail carrier for the Postal Service and is apparently able to perform his duties with the use of inhalers throughout the day. Therefore, the Board concludes that the veteran's service-connected asthma is appropriately compensated by the assignment of a 30 percent disability evaluation. Accordingly, the Board finds that the schedular criteria for a rating in excess of the currently assigned 30 percent disability evaluation is not warranted. Finally, the Board has considered the veteran's written and his wife's statements that his asthma is worse than currently evaluated. Although their statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). As noted, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds that the medical findings, which directly address the criteria under which the service- connected disability is evaluated, more probative than the subjective evidence of an increased disability. Therefore, in the absence of evidence of more severe symptoms, the Board finds that the veteran's asthma will not support an evaluation in excess of 30 percent at this time. (CONTINUED ON NEXT PAGE) ORDER The claim for entitlement to an increased evaluation for asthma, currently evaluated at 30 percent disabling, is denied. MICHAEL D. LYON Member, Board of Veterans' Appeal