Citation Nr: 0001191 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 94-19 796 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for bronchial asthma, currently rated as 60 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, [redacted], and [redacted] ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from September 1970 to June 1975. This case was remanded by the Board in June 1996 for additional development of the evidence. It has now been returned to the Board for further appellate review. FINDINGS OF FACT 1. Pronounced bronchial asthma with 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 is not shown. 2. Bronchial asthma is not manifested by 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; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. CONCLUSION OF LAW The criteria for a rating greater than 60 percent for service-connected bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103(a), 4.7 (1999); 38 C.F.R. § 4.97, Diagnostic Code 6602 (effective prior to October 7, 1996); 38 C.F.R. § 4.97 Diagnostic Code 6602 (effective as of October 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION In general, a veteran's claim of increasing severity of a service-connected disability establishes a well-grounded claim for an increased evaluation. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Here, the veteran has asserted that his asthma has increased in severity and warrants a higher evaluation. Therefore, his claim for increased evaluation is well-grounded. The VA has obtained pertinent medical records concerning the veteran's continuing treatment for asthma and has also had him examined for same. In view of the foregoing, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Factual Background. The veteran was treated for asthma in service. He filed his original claim for service connection for asthma in March 1976. A rating action in July 1976 awarded service connection and assigned a 10 percent rating, effective the day following his discharge from service in June 1975. The veteran veteran's rating continued at the 10 percent level until July 1981 when his compensation payments were discontinued based on his failure to report for a scheduled periodic examination. Subsequently, his 10 percent rating was reinstated in July 1983, and it remained in effect until 1988. A rating action in August 1988 increased the veteran's asthma rating to 30 percent, effective from February 1988. The veteran filed a claim for increase in October 1992. VA outpatient treatment records beginning in December 1991 show no significant problems until October 1992 when the veteran was hospitalized for an exacerbation of his asthma. On admission he had shortness of breath, wheezing and labored breathing. FEV-1 was 60 percent of predicted and FEV-1/FVC was 68 percent of predicted. The veteran improved with medication and was discharged after 7 days. On discharge, steroids were to be gradually tapered with discontinuance in 10 days. A rating action in December 1992 denied the veteran's claim for increase in excess of 30 percent and the current appeal ensued. Subsequent VA records show outpatient treatment from December 1992 to November 1993 and brief hospitalizations in February and September 1993 for exacerbations of his asthma. At a hearing on appeal in November 1993, the veteran reported being seen for his asthma about every three months as an outpatient. He reported that his asthma was controlled to some extent by medication and that he didn't always go to the hospital when he should because he did not want to lose his job. He also stated that he was no longer able to engage in certain activities which indicated to him that there had been an increase in his level of disability. [redacted], who lived with the veteran for eight years, reported observing an increase in the veteran's symptoms to include weakness. He reported the veteran's lesser asthma attacks usually to be of several hours duration. [redacted], who had previously worked with the veteran at a service station described the difficulties the veteran encountered on the job and how he had taken over some of the veteran's duties to help out the veteran. Following the Board's remand in June 1996, the veteran underwent VA examination in September 1996. On examination, the veteran complained of dyspnea on exertion. His asthma was said to be precipitated by cold weather, ragweed and exertion. The veteran reported working as a machine operator and missing 10 to 14 days of work per year due to asthma. He also indicated that he had mild attacks about once a week and that he had severe attacks requiring hospitalization two or three times a year. Pulmonary function studies showed FEV-1 as 58 percent of predicted and FEV-1/ FVC as 80 percent of predicted. Subsequent VA medical records for 1996-98 show that the veteran was seen periodically on an out-patient basis and underwent brief periods of hospitalizations for exacerbations of his asthma in October 1996, October 1997, and October, November and December of 1998. Hospital treatment included use of steroids. A rating action April 1999 considered the entire evidentiary record under the old and new rating criteria and found the veteran entitled to a 60 percent rating for his asthma, effective from the date of claim for increase in October 1992. Legal Criteria. The veteran's asthma has been evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6602, which covers bronchia asthma. During the course of this appeal, the rating criteria under this Diagnostic Code was changed, with the new criteria effective October 7, 1996. 61 Fed. Reg. 46720 (September 5, 1996). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") in Karnas v. Derwinski, 1 Vet. App. 308, 312 (1991) held that where laws or regulations change, after a claim has been filed or reopened, and before administrative or judicial process has been concluded, the version most favorable to the veteran applies, unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. Under the previous version of Diagnostic Code 6602, evaluations in excess of 10 percent disabling were based on the degree of disability demonstrated along with corresponding symptomatology. A 30 percent disability rating was warranted where the objective evidence indicated a moderate disability as shown by asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent rating was warranted for a severe disability shown by evidence of 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. A 100 percent rating was appropriate where the asthma was pronounced, 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, Diagnostic Code 6602 (1996). Under the revised criteria of Diagnostic Code 6602, in effect from October 7, 1996, bronchial asthma manifested by FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent, or intermittent inhalational or bronchodilator therapy warrants a 10 percent disability rating. A 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent, daily inhalational or bronchodilator therapy, or inhalational anti-inflammatory medication. A 60 percent rating is warranted for FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, 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 FEV-1 of less than 40 percent predicted, FEV-1/FVC of less than 40 percent, more than one attack per week with episodes of respiratory failure, or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a review of the recorded history of a disability should be conducted in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This decision will include a review of the entire record, but the focus will be on the most recent medical findings regarding the service-connected disability at issue. Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 1991). 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 (1999). Consideration is to be given to all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Analysis. In the present case, the RO recently granted a 60 percent rating for asthma, effective from the date of the veteran's claim for increase in October 1992. In light of this grant, the issue remaining on appeal is whether the veteran is entitled to a rating for his asthma in excess of the 60 percent assigned by the RO. As the next higher rating for asthma under both the old and new rating schedules is 100 percent, the question becomes whether the veteran is entitled to a 100 percent evaluation for his asthma. Under old Code 6602, a 60 percent rating was warranted for a severe disability shown by evidence of 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. A 100 percent rating was appropriate where the asthma was pronounced, 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, Diagnostic Code 6602. (1996). There is no showing during the appellate period of a pronounced asthma as defined by old Code 6602. In the instant case, the evidentiary record indicates that the veteran's symptomatology is not reflected of pronounced asthmatic attacks, nor is there any evidence of marked weight loss or other evidence of severe impairment of health attributable to the service connected disability. The veteran is not shown by the medical evidence of record to have had very frequent asthma attacks with severe dyspnea between attacks. He is also not shown to have had a marked loss of weight nor has such been suggested by the treating or examining physicians. There is also no competent medical evidence of any severe impairment of health arising from the veteran's asthma.. Thus, the veteran fails to meet the criteria for a 100 percent rating under the old Code 6602. Under the current Diagnostic Code 6602, a 60 percent evaluation is assigned 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 maximum evaluation of 100 percent is assigned 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; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. A review of the evidentiary record does not show that the FEV and FEV-1/FVC readings even approach the less than 40 percent of predicted required for a 100 percent rating under the version of Code 6602, currently in effect. There is also no showing of the more than one attack per week with respiratory failure as required for a 100 percent rating. In fact, the veteran has reported having only mild attacks on a weekly basis. There is also no showing of any high dose corticosteroids or immunosuppressive medications being required as part of the veteran's daily treatment. The Board finds that the requirements for a 100 percent rating under the new provisions have not been met. It is clear from the evidence of record that the veteran does not meet or approximate the criteria for the next higher evaluation, a 100 percent evaluation, under either set of criteria. In sum, the clinically demonstrated manifestations of asthma closely approximate the criteria for a 60 percent evaluation, under either the old or the new criteria, but do not approximate the criteria for a 100 percent evaluation under either set of criteria. An evaluation in excess of 60 percent for service-connected asthma is therefore not warranted. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6602 (effective prior to October 7, 1996); 38 C.F.R. § 4.97 Diagnostic Code 6602 (effective as of October 7, 1996). ORDER Entitlement to a rating in excess of 60 percent for bronchial asthma is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals