BVA9507505 DOCKET NO. 93-13 241 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased evaluation for bronchial asthma, currently evaluated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. F. Gussio, Associate Counsel INTRODUCTION The veteran had active military service from April 1981 to December 1986. A September 1991 decision by the Board of Veterans' Appeals (Board) granted, in part, service connection for bronchial asthma. An October 1991 rating decision effectuated the allowance by assigning a noncompensable rating for bronchial asthma, effective from August 10, 1989. The veteran appealed that rating; a rating decision of August 1992 granted a 10 percent evaluation for bronchial asthma, effective from August 10, 1989. The veteran has continued his appeal for a higher evaluation. In his May 1992 substantive appeal, the veteran also presented arguments pertinent to his service-connected urticaria. In August 1992, the veteran's representative filed a notice of disagreement regarding the regional office's (RO) denial of a clothing allowance. These matters, which are not inextricably intertwined with the issued on appeal, are referred to the RO for appropriate action. In February 1995, the veteran submitted directly to the Board a medical statement from Maureen E. Miller, M.D. The veteran did not waive initial review by the RO, but the evidence is not pertinent under 38 C.F.R § 20.1304(c) (1994) since it is essentially cumulative of previously reviewed evidence. Accordingly, a remand for due process purposes is unnecessary. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his bronchial asthma has increased in severity and warrants a higher rating. He claims that he has three to four asthma attacks a week for which he has to take medication. He also claims that he has lost time at work. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an increased evaluation for bronchial asthma. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Bronchial asthma is not more than mild, with paroxysms of asthmatic-type breathing occurring no more than several times per year, and with no clinical evidence of bronchial asthma between acute asthmatic attacks. 3. Bronchial asthma is not shown to result in an unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, Diagnostic Code 6602 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. In an October 1992 letter, the veteran indicated that he had been treated by Dr. Porny. The RO requested Dr. Porny's records, but there was no response. The veteran was notified by the RO in a November 1992 letter that Dr. Porny had not submitted the requested medical records and that a decision was to be rendered on the evidence of record. The veteran was otherwise afforded several Department of Veterans Affairs (VA) examinations and the RO obtained VA treatment records. No further assistance to the veteran is required in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). When service connection for bronchial asthma was granted by the Board in a September 1991 decision, the bases of the allowance were findings of episodic in-service asthma-like symptoms associated with his chronic urticarial attacks and post-service treatment for asthma. Disability ratings are based, as far as practicable, upon the average impairment of earning capacity attributable to specific injuries. 38 U.S.C.A. § 1155. 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 (1994). The veteran's service medical records reveal that asthma-like symptoms first became manifest in service. On medical board evaluation in August 1986, he was seen for complaints associated with chronic urticaria. On evaluation, the examiner noted that although the veteran did not have a history of asthma, he had wheezes after treatment with immunotherapy. VA outpatient treatment records from January 1987 to March 1990 reveal that the veteran was treated mainly for his service- connected chronic urticaria. In August and September 1988, he had upper respiratory complaints. On examination, the lungs were clear. The diagnosis was bronchitis. In September and October 1989, he complained of lung congestion and flu symptoms. Clinical evaluation revealed lungs were clear. The diagnosis was upper respiratory infection. On the VA examination in February 1990, the veteran reported that he had difficulty breathing since his return from his discharge from service and that he was taking medication to prevent attacks. Clinical evaluation revealed the lungs fields were clear and there were no inspiratory or expiratory rales. Pulmonary function test were normal. The veteran expanded both sides of his chest equally. The diagnosis was bronchial asthma, due to allergy. In March 1990, VA outpatient treatment records show that the veteran complained of having an asthmatic attack with urticaria. There were mild rhonchi. When the veteran was examined by the VA in July 1990, he reported having asthma attacks with considerable chest congestion and some breathing difficulty. The examiner noted that this was not evaluated. At the hearing before the RO in August 1990, the veteran testified to the effect that he had his first asthmatic condition in service and has been taking medication for asthma since service. He reported that his medical treatment was received through VA. Hearing transcript at 6, 7. On the VA examination in June 1992, the veteran reported that he was taking medication for his asthma. He reported that he had an average of one asthma attack every three days, which increased in severity during cold weather and changes in the weather. He related that he was congested year around, had difficulty breathing, and tired easily with any activity. The veteran reported that he had lost 64 hours of work over the preceding 12 months for various medical reasons, including asthma. The veteran's history of smoking 1 1/2 packs of cigarettes per day was noted. Pulmonary function testing revealed that spirometry and lung volumes were normal. Forced vital capacity was 96 percent of predicted, prebronchodilator. Diffusing capacity was mildly decreased. Arterial blood gases were normal. the examiner noted that there had been no significant change since October 1991. There were no rales or wheezes heard. The pertinent diagnosis was bronchial asthma, probably due to both stress and allergies. VA outpatient treatment records from April 1992 to October 1992 reveal that the veteran continued to receive treatment for various medical complaints. In July 1992, it was noted that his asthma was stable with no wheezing. The veteran was encouraged to quit cigarette smoking. In October 1992, he had complaints of a respiratory infection. Clinical examination revealed that the lungs were clear. On VA examination in December 1992, the veteran reported that he continued to have problems with asthma, which he described as non-stop. He reported that he had three to four attacks a week and coughed often. The veteran reported that he was allergic to foul odors and perfumes. He also reported a seasonal increase in asthma attacks. He stated that physical stress tended to cause his attacks. The veteran indicated that he had lost 16 hours of work over the previous 12 months solely as a result of asthma. The examiner noted that the veteran had had a fairly good allergic work-up and was allergic to a number of things. On clinical evaluation, the chest expansion was equal on both sides and was adequate. There were no abnormal sounds of any kind heard. There were no sibilant or crepitant rales. Pulmonary testing revealed spirometry and lung volumes were normal. Diffusing capacity was minimally reduced. Forced vital capacity was 98 percent, prebronchodilation. The diagnosis was bronchial asthma. The examiner noted that the veteran continued under treatment with multiple medications and that he used two inhalers. In a June 1993 letter, the veteran reported that he had quit cigarette smoking. A 10 percent rating is commensurate with mild bronchial asthma, manifested by paroxysms of asthmatic-type breathing (high-pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks. The next higher evaluation, a 30 percent rating, represents moderate bronchial asthma, manifested by "rather frequent" asthmatic attacks (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent rating is assigned for severe bronchial asthma manifested by frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication and more than light manual labor is precluded. 38 C.F.R. Part 4, § 4.97, Diagnostic Code 6602. Review of pertinent clinical data in this case clearly reflects that the veteran's asthma is rated appropriately at 10 percent. The Board is mindful of the veteran's complaints referable to asthma, that is, that he experiences asthma attacks three to four times a week for which he takes medication; that he has extreme difficulty breathing; and that he has missed time from work. There is no indication by objective medical data, however, that symptomatology attributable to asthma occurs on more than an episodic basis. Asthma manifested by "rather frequent" attacks and moderate dyspnea were not seen on the veteran's VA outpatient treatment records and VA examinations discussed above. In July 1992, the veteran's asthma was characterized as stable without wheezing. Likewise, the veteran's lungs were clear on VA examinations in February 1990, and June and December 1992. As well, pulmonary function test results were unremarkable. At most, the treatment records and examination reports which cover several years do not demonstrate more than mild asthma. Upon consideration of the entire record, therefore, the Board concludes that the veteran's symptomatology is adequately addressed by his current rating. An increased evaluation is therefore not warranted. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.97, Diagnostic Code 6602. In addition, consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the evidence discussed above does not suggest that the veteran's service-connected asthma presents such an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards so as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). For example, the disability did not recently require frequent periods of hospitalization, nor does it present marked interference with employment. As noted above, the schedular rating assigned already contemplates the average impairment of earning capacity. ORDER Entitlement to an increased evaluation for bronchial asthma is denied. M. SABULSKY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.