BVA9504705 DOCKET NO. 92 53-881 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased evaluation for bronchial asthma, currently evaluated as 30 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Associate Counsel INTRODUCTION The veteran served on active duty from August 1980 to March 1990. This matter came before the Board on appeal of an August 1990 rating action by the Department of Veterans Affairs (hereinafter VA) Regional Office (hereinafter RO) located in Jackson, Mississippi, which granted service connection for bronchial asthma and assigned a 10 percent disability rating. The notice of disagreement was received in January 1991. The statement of the case was issued in March 1991. The substantive appeal was received in July 1991. The Board remanded the case in April 1992. The RO granted an increase to 30 percent for this disability in an October 1994 rating decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected bronchial asthma has gotten worse as the symptoms and manifestations of the disability from which he suffers have increased in severity and have limited his employment opportunities. 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 a disability rating of more than 30 percent for the veteran's service-connected bronchial asthma is not warranted. FINDINGS OF FACT The medical evidence reflects that the veteran's service- connected bronchial asthma is manifested by mild obstructive disease, some wheezing during exercise, and some decrease in pulmonary function. CONCLUSION OF LAW A disability rating higher than 30 percent for the veteran's service-connected bronchial asthma is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6602 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The evaluation assigned for the veteran's service-connected bronchial asthma is established by comparing the manifestations indicated in his medical records with those manifestations described in the prior medical findings, and with the criteria in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994). 38 U.S.C.A. § 1155 (West 1991). In this case, the RO rated the veteran's bronchial asthma using Diagnostic Code 6602, which bases ratings on the frequency of asthmatic attacks, and the amount of dyspnea experienced on slight exertion between attacks. A 10 percent rating is appropriate when the resulting disability is mild, 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 rating is warranted when a veteran experiences moderate disability, including asthmatic attacks rather frequent (separated by only 10 to 14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent rating is warranted when the veteran suffers severe asthma, with symptoms comparable to frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication, precluding more than light manual labor. A 100 percent rating is appropriate if the veteran suffers pronounced disability, with symptoms comparable to 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. Service medical records indicate that the veteran started to develop respiratory problems in July 1986 which worsened. A Medical Board report dated in November 1989 recommitted that the veteran be discharged. It noted that the veteran had bronchial asthma and that an allergy consultation showed skin testing positive for numerous allergens. As a result, the veteran was discharged from service. In an August 1990 rating decision, the RO granted service connection for bronchial asthma and assigned a 10 percent disability rating. A VA compensation examination was performed in July 1990. The veteran complained of asthma which started in 1986. The lungs were clear to auscultation and percussion. Pulmonary function tests were normal. A diagnosis of asthma was given. There are numerous progress notes from Keesler Air Force Base Medical Center from 1991 to 1994 that indicated that the veteran was doing well on his medications or that his asthma was stable. The veteran also received immunotherapy for his allergens during this period. A March 1991 x-ray evaluation indicated that the lungs were clear. In June 1991, the veteran complained that his asthma was getting worse. A July 1991 progress note indicated that the veteran presented with moderate asthma. The veteran stated that he worked aboard a boat and his symptoms increased when he was at sea for 7 to 14 day tours especially when the weather changed or he was exposed to exhaust fumes or concrete dust. The examiner noted the possibility that the veteran's work aboard ship might not be compatible with his symptomatology and an assessment that the exacerbations of the veteran's asthma were increasing, was given. In a progress note in December 1991, the veteran complained of daily wheezing exacerbated by exercise in the cold air and had to leave two off-shore boat tours due to exposure to irritants. He was still working aboard boats. Assessments of asthma, and perennial and season allergies were given. That same month an examiner in a medical statement, recommended that the veteran pursue an occupation different from working aboard off-shore boats, due to the exposure to irritants or heavy exercise that would exacerbate his asthma and the lack of medical personnel aboard such boats. In a March 1992 note, the veteran stated that he had been doing very well and had been able to tolerate off-shore work better than in the past. A progress note in June 1993 indicated that the symptoms of the veteran's asthma were stable but still present and that he was still able to work aboard boats but he required frequent medication. A pulmonary function test performed that same month revealed that pre-medication analysis indicated that there may be a mild obstruction and a post-medication analysis was within normal limits. An assessment of mild to moderate, persistent asthma was given. A VA compensation examination was performed in June 1994. The veteran complained of asthma that did not occur in specific attacks and an ongoing sense of tightness in his chest but usually responded to his inhalant medication which he took daily. He stated that exercise produced wheezing. Examination revealed chest expansion to be symmetrical. There were no structural changes to the lung and no active malignant process was noted. Pulmonary function studies revealed mild obstructive disease which improved more than 10 percent following bronchodilators. An x-ray evaluation revealed a normal chest. A diagnosis of bronchial asthma, fairly well controlled with the use of immunotherapy and daily inhalants were given. The examiner also stated that most mild asthmatics do not require the extent of therapy that the veteran requires. The veteran has been receiving immunotherapy for three years for allergies and uses daily inhalants. The RO granted an increase to 30 percent disabling for this disability in an October 1994 rating decision. The medical evidence does not support a finding that the symptoms and manifestations of the veteran's service-connected bronchial asthma are comparable with a severe disability. There is no medical evidence that the veteran suffers asthma attacks one or more times each week, nor does the evidence support a finding that he suffers marked dyspnea on exertion between those attacks with only temporary relief from medication, precluding more than light manual labor. Although there is a December 1991 medical statement that recommended that the veteran pursue an occupation different from working aboard off-shore boats, the Board notes that subsequent statements by the veteran indicate that he is able to work aboard boats. The veteran's manifestations are not comparable with those resulting in pronounced disability, such as 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. The Board finds that the disability resulting from the veteran's service-connected bronchial asthma clearly does not meet the schedular criteria for a rating of more than 30 percent. The Board observes that the positive and negative evidence is not in equipoise. Therefore, the doctrine of the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 1991). The Board has also considered whether the veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1994). That regulation permits the application of an extraschedular rating in exceptional cases when the schedular ratings do not adequately represent the disability picture. However, in this case the rating schedule addresses symptoms comparable to those of which the veteran complains. While the medical findings reflect that the veteran does suffer from respiratory problems, the evidence supports a finding that the disability is not more than that contemplated by the 30 percent schedular rating. ORDER The appeal is denied. EUGENE A. O'NEILL 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. (CONTINUED ON NEXT PAGE) 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.