Citation Nr: 0006296 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 94-48 046 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to a higher rating for bronchial asthma with emphysema. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Debbie A. Riffe, Associate Counsel INTRODUCTION The veteran served on active duty from February 1941 to August 1943. This case comes to the Board of Veterans' Appeals (Board) from a July 1996 decision of the Newark, New Jersey RO which denied an increase in a 30 percent rating for the veteran's bronchial asthma with emphysema. In a November 1996 decision, the Newark RO assigned a higher rating of 60 percent for bronchial asthma with emphysema, effective from October 7, 1996. The veteran continues his appeal for a higher rating. The veteran's case was transferred from the Newark RO to the Philadelphia RO which is currently handling the appeal. FINDING OF FACT The veteran's bronchial asthma with emphysema is pronounced and totally incapacitating, and it requires outpatient oxygen therapy. CONCLUSION OF LAW The criteria for a 100 percent rating for bronchial asthma with emphysema have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.97, Codes 6602, 6603 (1996); 38 C.F.R. § 4.97, Codes 6602, 6603, 6604 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from February 1941 to August 1943. A review of the record shows that in a December 1943 decision service connection was established for bronchial asthma with a 30 percent rating. That rating was reduced to 0 percent in a July 1944 decision and then increased to 30 percent in a November 1945 decision. In an April 1951 decision, the rating for the lung condition was reduced to 10 percent, then increased to 60 percent in a May 1965 decision, and reduced again to 30 percent in a June 1968 decision. Besides the service-connected lung condition, service connection is established for heart disease and stroke residuals including loss of use of both lower extremities and of the left upper extremity, blindness in the right eye, organic brain syndrome, and erectile dysfunction. A permanent and total compensation rating is in effect, and the veteran is entitled to special monthly compensation. Medical records from the Deborah Heart and Lung Center show that the veteran was hospitalized twice in June 1994 for chest pain. On his first admission, he underwent a cardiac catheterization. It was noted in his medical history that he had sleep apnea requiring oxygen at night, bronchial asthma, and chronic obstructive pulmonary disease (COPD), among other ailments. A physical examination of the lungs revealed bilateral wheezes throughout. On his second admission, an electrocardiogram (EKG) was performed. The diagnoses included coronary artery disease, markedly impaired left ventricular function, chronic obstructive airway disease with history of bronchial asthma, and history of sleep apnea. In a September 1994 letter, Luciano Migliarino, M.D., and David Smith, M.D., indicated that the veteran had a longstanding history of numerous ailments to include frequent bronchitis infections. The doctors stated that it was their understanding that the veteran could only walk one to two city blocks before needing to rest, and they recommended a motorized scooter. They also noted that the veteran was unable to sit comfortably for more than ten minutes at a time in the office due to severe arthritis. Medical records from West Jersey Health System show that the veteran was hospitalized in December 1994 for unstable angina. On admission, he denied shortness of breath associated with his chest pain but admitted to a baseline shortness of breath associated with COPD. He denied paroxysmal nocturnal dyspnea symptoms currently but indicated that he was unable to sleep flat. He indicated that he was barely able to walk from one room to another and his wife had to help him dress and shower. A physical examination showed moderate expiratory wheezes throughout the lungs and clubbing, but no cyanosis or edema. The veteran underwent an EKG which showed severely reduced left ventricular systolic function, regional wall motion abnormalities, pulmonary hypertension, mild aortic insufficiency, and mild mitral insufficiency. A chest X-ray, when compared with a previous X-ray in August 1994, again showed some linear densities in the mid-lung fields, especially on the left, compatible with scar; there was no evidence of consolidation or active disease in the lungs. During the course of his hospitalization, it was noted that the veteran's COPD was stable. The discharge diagnosis was COPD, among other ailments. From the West Jersey Hospital, the veteran was transferred to Hahnemann University Hospital in December 1994, where he underwent a cardiac catheterization. Medical records from the Deborah Heart and Lung Center in April 1995 show the veteran reported his dyspnea had been about the same for the past several months. He stated that if he walked from room to room he had to stop and catch his breath. He reported using 2 liters of oxygen on a nightly basis. He complained of occasional paroxysmal nocturnal dyspnea and a dry cough. He reported that his doctor recently started him on Erythromycin for bronchitis. An examination revealed essentially clear lungs. Chest X-rays were essentially unchanged, revealing linear densities in the mid-lung field on the left side with scar. The final diagnoses included history of severe COPD. Medical records from the Deborah Heart and Lung Center in May 1995 show that the veteran's chief complaint was shortness of breath. He reported that his exercise tolerance at present was about one room length and that he had cough on most days productive of sputum. An examination showed him to be overweight with a fair expansion of the chest. The results of pulmonary function tests (PFTs) revealed forced vital capacity (FVC) of 2.36 or 59 percent of predicted, forced expiratory volume (FEV1) of 1.45 liters or 54 percent of predicted, and a FEV1/FVC of 61 percent. The diagnoses included COPD. It was noted that the veteran did not presently need supplemental oxygen at rest but that he should continue to be placed on 1 liter per minute of oxygen during the hours of sleep. The veteran was seen in a follow-up visit in June 1995. At that time, it was noted that his previous PFTs did not explain his shortness of breath and that there may be an additional pulmonary condition present. In a July 1995 letter, Gary Brown, M.D., noted that the veteran had severe COPD and was actively wheezing in the chair during a vision examination. Medical records from the Deborah Heart and Lung Center in July 1995 show that the veteran's chief complaint was shortness of breath. He underwent cardiac testing. The diagnoses included shortness of breath, etiology undetermined; history of COPD; and history of sleep apnea. In August 1995, the veteran complained of cough and sputum production. He reported that he had been unable to use inhalers for his COPD because they caused him to choke. He stated that he was short of breath on minimal exertion. An examination revealed the veteran to be overweight and dyspneic on minimal exertion. His chest expansion was poor, and there were bilateral expiratory rhonchi. Chest X-rays showed cardiomegaly and plate-like atelectasis. The diagnoses included mild COPD and history of sleep apnea. On a September 1995 VA examination, it was noted that the veteran presented in a wheelchair with oxygen via a nasal cannula. He was noted to be breathing with pursed lips. He complained of wheezing when lying down and extreme shortness of breath. He reported that he used oxygen at the rate of 1 liter per minute at night and 2 liters per minute during the day on an as-needed basis. He reported that he stayed in bed most of the time. On examination, the veteran had expiratory wheezes throughout all of his lung fields and good air movement. His extremities were positive for a trace of edema. He reported that he had PFTs a year ago at Deborah Heart and Lung Hospital. The diagnoses were COPD, hypertension, and stroke which resulted in right eye blindness. In a November 1995 letter, Michael Herlich, M.D., stated that the veteran was seen for evaluation of his chronic severe exertional shortness of breath. He noted that a December 1994 EKG revealed mild pulmonary hypertension. Dr. Herlich recommended PFTs to determine whether or not the veteran might benefit from steroids to improve his pulmonary function. Medical records from West Jersey Health System show that the veteran was hospitalized in January 1996 for an acute exacerbation of COPD. When he was admitted, he was started on intravenous steroids, nebulizer treatments, and intravenous antibiotics, which gradually improved his respiratory status. On admission, it was noted that he had expiratory wheezes and shortness of breath on exertion. A pulmonary admission note indicates that the veteran had been on oxygen for years. A chest X-ray revealed clear lung fields and some interstitial lung disease bilaterally. In March 1996, the veteran was again hospitalized at West Jersey Hospital for an acute exacerbation of COPD. He had shortness of breath and cough with gray sputum on admission. It was noted in the veteran's medical history that he used oxygen on exertion and that he had a history of adult-onset diabetes which precluded the use of steroid therapy in outpatient care. A chest X-ray showed nonsegmental atelectasis of the left base and no active pulmonary disease. His prognosis remained poor overall on discharge due to underlying problems. In a June 1996 letter, Angel Rodis, M.D., indicated that the veteran was seen with complaints of shortness of breath and two to three pillow orthopnea at night. The doctor noted that the veteran was coughing and bringing up clear phlegm and that he was apparently not responding to a course of antibiotics. Examination of the lungs showed expiratory wheezing with diffuse rhonchi. Dr. Rodis stated that the veteran most likely had an acute exacerbation of COPD/asthmatic bronchitis. The doctor prescribed Medrol and recommended nebulizer treatment four times daily. A July 1996 chest X-ray from the Deborah Heart and Lung Center revealed atelectatic changes at the left lung base without evidence of pneumothorax or alveolar infiltrate. In a July 1996 decision, the Newark RO denied an increase in a 30 percent rating for bronchial asthma with emphysema. The veteran expressed his disagreement with this decision in an August 1996 statement wherein he indicated that he has been hospitalized for his condition and has received skilled nursing care at his home. He stated that he has never been free of lung disease and was continuously spitting up large, thick secretions. He maintained that he never had a day where he could breathe freely and that he now had shortness of breath with the slightest exertion. In a November 1996 decision, the Newark RO established a 60 percent rating for the veteran's bronchial asthma with emphysema, effective the date of new regulations for respiratory disorders on October 7, 1996. In an April 1997 letter, the veteran indicated that he could not report for a VA examination due to the advice of his doctor. He stated that he has been receiving outpatient oxygen therapy since 1994 and that he was also using a compressor nebulizer with Albuterol sulphate, Azmacort, and Erythromycin. He stated that he used a motorized scooter outside his home and was awaiting his doctor's prescription for a motorized wheelchair to be issued. In a June 1998 letter, Kenneth Maurer, M.D., noted that the veteran described himself as being homebound for the last ten years, essentially spending most of his day in bed over the last eight years. The doctor noted that the veteran's last hospitalization was in 1996 for treatment of heart disease. The veteran reported severe weakness in his lower extremities. He stated that he used a walker and a cane at times. Examination of the lungs revealed decreased breath sounds with occasional rhonchi. Dr. Maurer stated that the veteran was a chronically disabled individual, disabled both from his chronic lung disease and from discogenic problems. In a July 1998, Karen Scardigli, D.O., noted that the veteran was on numerous medications to include Azmacort and Albuterol. A general examination revealed clear lungs. Dr. Scardigli stated the veteran had a polyneuropathy related to his diabetes, and she was concerned about the veteran's frequent falls especially as he was on Coumadin. She stated that the veteran would need to obtain a motorized wheelchair. In November 1998, the veteran was seen in the Deborah Heart and Lung Center. On one visit, the veteran complained of chest pain, dizziness, weakness, and fatigue. It was noted that he was last seen in January 1998 when he complained of exacerbation of dyspnea and severe cough. On the November 1998 visit, the veteran reported use of oxygen on an as- needed basis due to sleep apnea. It was noted that he was incapacitated at home and was unable to walk due to chronic back pain. The veteran reported that he had episodes of paroxysmal nocturnal dyspnea and that he slept on two pillows. The veteran was taking numerous medications to include Albuterol mini-nebulizers. An examination revealed clear lungs and no significant edema. A chest X-ray showed essentially clear lungs. On a subsequent visit that month, the veteran complained of exertional dyspnea, cough with sputum, and chest pain. His medications included Azmacort and Albuterol. The diagnoses included COPD, sleep apnea, and neuropathy leaving him primarily wheelchair bound. In December 1998, the veteran was seen on a follow-up visit in the Deborah Heart and Lung Center. He complained of shortness of breath while talking and with minimal activity. He reported using 2 liters per minute of oxygen with a nasal cannula on a daily basis. He indicated that he was compliant with his meter dose inhalers (Albuterol and Azmacort) and with a mini-nebulizer with Albuterol. An examination revealed decreased breath sounds with wheezing bilaterally. There was no clubbing, edema, or cyanosis of the extremities. The diagnoses were severe COPD, coronary artery disease, atrial fibrillation, and chronic back pain. II. Analysis Initially, it is noted that the veteran's claim, for an increase in a 60 percent rating for bronchial asthma with emphysema, is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is satisfied that all relevant evidence has been properly developed and that no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. During the course of the veteran's appeal, the regulations pertaining to rating respiratory conditions were revised, effective October 7, 1996. See 61 Fed.Reg. 46720 (1996). The veteran's service-connected bronchial asthma with emphysema was initially evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6602 (effective prior to October 7, 1996). Under this code, a 30 percent rating is warranted for 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 warranted 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 precluded. A 100 percent rating is warranted for pronounced bronchial asthma manifested by very frequent asthmatic attacks with severe dyspnea on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health. A note following these criteria indicates that in the absence of clinical findings of asthma at the time of the examination a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97, Code 6602 (1996). Additionally, under the old rating criteria a 30 percent rating is warranted for moderate pulmonary emphysema with moderate dyspnea occurring after climbing one flight of steps or walking more than one block on level surface, with PFTs consistent with findings of moderate emphysema. A 60 percent rating is warranted for severe pulmonary emphysema manifested by exertional dyspnea sufficient to prevent climbing one flight of steps or walking more than one block without stopping, and a severe degree of ventilatory impairment confirmed by PFTs with marked impairment of health. A 100 percent rating is warranted for pronounced pulmonary emphysema that is intractable and totally incapacitating with dyspnea at rest, or marked dyspnea and cyanosis on mild exertion, and the severity of emphysema is confirmed by chest X-rays and PFTs. 38 C.F.R. § 4.97, Code 6603 (1996). Under the new rating criteria which became effective on October 7, 1996, a 60 percent rating for bronchial asthma is warranted for 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. A 100 percent rating for bronchial asthma is warranted for FEV-1 less than 40-percent predicted; or FEV-1/FVC less than 40 percent; or more than one attack per week with episodes of respiratory failure; or requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. A note following these criteria indicates that in the absence of clinical findings of asthma at the time of the examination a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97, Code 6602 (1999). Under the new rating criteria, a 60 percent rating for pulmonary emphysema or COPD is warranted for FEV-1 of 40- to 55-percent predicted; or FEV-1/FVC of 40 to 55 percent; or DLCO (SB) of 40- to 55-percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating for pulmonary emphysema or COPD is warranted for FEV-1 less than 40-percent predicted; or FEV-1/FVC of less than 40 percent; or DLCO (SB) less than 40- percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by Echo or cardiac catheterization); or episode(s) of acute respiratory failure; or requirement of outpatient oxygen therapy. 38 C.F.R. § 4.97, Code 6603 (emphysema) and Code 6604 (COPD) (1999). As the veteran's claim for an increased rating for bronchial asthma with emphysema was pending when the regulations pertaining to evaluating lung conditions were revised, he is entitled to the version of the law most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the prior or current rating criteria may apply, whichever are most favorable to the veteran. The medical records are somewhat unclear as to whether all of the veteran's breathing problems are due to his service- connected bronchial asthma with emphysema, or whether some of his breathing difficulty is associated with his service- connected heart disease. In any event, he is on outpatient oxygen therapy for his service-connected lung condition, and such meets one of the alternative tests for a 100 percent rating under new Codes 6603 and 6604 which became effective on October 7, 1996. His claim and appeal for an increased rating predate the October 7, 1996 change in the rating criteria, and the old rating codes must be applied to the period prior to such date. As to that period of time, and with consideration of the benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b)), the Board finds that the lung condition was pronounced and totally incapacitating, as described in old Codes 6602 and 6603, and such supports a 100 percent rating. In sum, the Board grants a 100 percent rating for the lung condition throughout the period of the claim and appeal. ORDER A 100 percent rating for bronchial asthma with emphysema is granted. L. W. TOBIN Member, Board of Veterans' Appeals