Citation Nr: 0005522 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-03 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for allergic rhinitis, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for reactive airway disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD A. Hinton, Associate Counsel INTRODUCTION The veteran served on active duty from October 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied compensable evaluations for the service-connected allergic rhinitis and airway disease. During the course of appeal, the Board received the case, which it remanded to the RO in May 1998 for further development. Subsequently, an August 1999 rating decision assigned a 10 percent evaluation for the allergic rhinitis, and assigned a 10 percent evaluation for the reactive airway disease. Both evaluations were made effective from the effective date of service connection for each disability, October 1, 1991. As the respective 10 percent evaluations are less than the maximum available under the applicable diagnostic criteria, the veteran's claims remain viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The veteran's allergic rhinitis is manifested by no polyps, exudates, lesions or significant obstruction; minimal congestion; and need for medication for relief of symptoms. 3. The veteran's reactive airway disease is primarily manifested by: post-dilator FEV-1 between 79 and 87 percent of predicted value, and FEV-1/FVC between 76 and 78 percent; the veteran uses bronchodilator medication two to four times per week and has mild symptoms and normal clinical findings. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for allergic rhinitis is not warranted. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Diagnostic Codes 6501 (1996); 38 C.F.R. §§ 4.31, 4.97, Diagnostic Codes 6522 (1999). 2. A rating in excess of 10 percent for reactive airway disease is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6202 (1996); 38 C.F.R. § 4.97, Diagnostic Code 6202 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, then the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Accordingly, the Board finds that the veteran's claims for increased ratings for allergic rhinitis and for reactive airway disease are "well grounded." 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1998). The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issues at hand. In accordance with 38 C.F.R. Part 4, §§ 4.1, 4.2, and 4.41 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the evidence of record pertaining to the history of the veteran's service-connected allergic rhinitis and reactive airway disease, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is inadequate for rating purposes. In addition, it is the judgment of the Board that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disabilities at issue. During a December 1991 VA examination, the veteran complained of wheezing and difficulty breathing, with attacks that last usually a week. On ENT examination, there was congestion in the pharynx. The left side of the nasal cavity was narrow and the turbinate was prominent. The right nasal cavity was wider. On respiratory system examination for reactive airway disease, expiratory wheeze was heard bilaterally. No rales or rhonchi were present. The report contains diagnoses of probable reactive airway disease, chronic allergic rhinitis, and that pulmonary function studies showed normal spirometry lung volumes. An associated pulmonary function laboratory report recorded, post-dilator, forced expiratory volume in one second (FEV-1) of 84 percent of predicted; the ratio of FEV-1 to forced vital capacity (FVC), FEV-1/FVC, of 79 percent. A X-ray report contains an impression of normal chest, with findings that the lungs were clear and diaphragm normal. During an August 1992 VA examination the veteran reported complaints of periodic wheezing, dyspnea, and difficulty breathing at night. He currently used inhalers at two puffs as occasion required. On examination, the right and left nasal canals were narrow and wide, respectively. The septum was deviated. The oropharynx showed minimal congestion, the lungs showed no respiratory distress, and the respiratory rate was sixteen per minute. Air entry was good bilaterally. No wheezing, rales or rhonchi were found. The report contains diagnoses of reactive airway disease and allergic rhinitis. X-rays revealed clear lungs and normal diaphragm. An associated pulmonary function laboratory report recorded a pre-dilator FEV-1 of 80 percent of predicted; and FEV-1/FVC of 76 percent. During a November 1995 VA examination the veteran reported complaints of shortness of breath, which was worse at night and not a problem until he participated in physical activity such as running. On examination, there was no shortness of breath. Inspiratory rate was 20 per minute, breath sounds were fairly audible, and no rales were found. There was no cough or sputum. The diagnosis was reactive airway disease. During ENT examination, there was no discharge, the left nostril and opening was slightly bigger than the right. There was no congestion of the turbinates, and a slight deviation of the septum to the right. Paranasal sinuses and nasal sinuses were normal. No tenderness was evident. The diagnosis was history of allergic rhinitis. X-ray reports contain impressions of old possible un-united depressed fracture of the nasal bones; normal sinuses; and lack of real deep inspiration, chest otherwise unchanged, no acute disease. An associated pulmonary function laboratory report recorded pre-dilator, a FEV-1 of 78 percent of predicted; and FEV-1/FVC of 78 percent. That report contains an interpretation that the findings showed that the veteran was able to perform all vital capacity maneuvers adequately; that FEV-1/VC ration was within normal limits; and that spirometry was normal. During a December 1996 VA examination the veteran reported complaints of dyspnea, which was predominantly exertional, constant wheezing, intermittent coughing not usually productive of secretion, and generalized chest tightness. He reported that these symptoms were constant and that his nocturnal symptoms were usually minimal. He wakes two to three times per week due to difficulty breathing, which is usually relieved by use of bronchodilator. His symptoms worsened with exercise, but his wheezing and dyspnea did not necessarily increase with allergen exposure. His current medications included Albuterol, Atrovent, Beclomethasone, and Ocean Spray. On examination, audible wheezing was heard with forced expiration. With quiet breathing, expiratory wheezing was heard throughout both lung fields. The report noted that pulmonary function testing revealed that FEV-1 was normal. Findings suggested variable upper airway obstruction. Lung volumes were on the lower end of normal and his DLCO was normal. X-rays were noted to be normal without evidence of infiltrates of scars. The report contains an impression that the veteran had persistent wheezing, exertional dyspnea, and a flow volume loop suggestive of some variable upper airway obstruction. The report indicated that findings suggested an ongoing bronchial forces that could be related to some atypical form of asthma, reactive airway disease, or even active airway dysfunction syndrome. A December 1996 VA pulmonary function laboratory report records post-dilator, a FEV-1 of 87 percent of predicted; and a FEV-1/FVC ratio of 77 percent. The veteran testified during a November 1997 personal hearing before the undersigned Member of the Board sitting at Cleveland, Ohio. He testified regarding the symptoms due to, and treatment for his service-connected allergic rhinitis and reactive airway disease. An October 1998 VA pulmonary function laboratory report records post-dilator, a FEV-1 of 79 percent of predicted; and a FEV-1/FVC ratio of 78 percent. VA pulmonary function reports in early and late December 1998 show FEV-1 of 80 and 87 percent of predicted; and a FEV-1/FVC ratio of 76 and 77 percent, respectively. During VA examination in February 1999, the veteran reported that he had symptoms including shortness of breath, even without physical activity. He was presently treated with bronchodilators for his shortness of breath, and uses them two to four times per week as needed. He took an Albuterol inhaler as needed and Tylenol Sinus as needed for sinus congestion. He required frequent antibiotics about once per month for presumed upper respiratory infections. He reported that he wheezes constantly and had shortness of breath frequently, which seemed to clear on weekends when he was away from his work environment. He gets sinus headaches and would cough up "black stuff." He reported having purulent discharge and dyspnea on climbing stairs. He indicated that his symptoms reflected environmental factors as well as exertion. He reported that he had had no periods when he was incapable of working on his job. On examination of his mouth, membranes were pink without any lesions or exudates. Lungs were clear to auscultation in all fields. No wheezing or auscultation was evidenced. The sinuses had no tenderness. The report noted that there was more obstruction of the right than the left nasal cavity, but certainly less than 50 percent obstruction on the right. The examination report noted that pulmonary function testing in late December 1996 showed a pre-dilator FEV-1 of 82 percent of predicted. Lung volumes were all normal. The findings were noted to be consistent with normal spirometry and lung volumes. There was no response to bronchodilator therapy on this pulmonary function testing. DLCO was normal. The examination report noted that pulmonary function testing in early December 1998 showed a pre-dilator FEV-1 of 77 percent of predicted. The report noted that spirometry findings were normal; and that there was no response to bronchodilator therapy, showing no evidence on either pulmonary function test of any reactive airways disease. The veteran was prescribed Claritin for his sinus congestion. The February 1999 VA examination concludes with an opinion that the veteran had no objective evidence by spirometry, lung volumes, DLCO, or by methacholine challenge test, that he had any reactive airways disease. There was no evidence of significant nasal obstruction by the present examination. The examiner noted that the veteran gave a very good history of allergic rhinitis, which by history showed a fairly significant moderate to severe allergic rhinitis that did require a significant amount of antihistamine therapy. The examiner noted that there was no evidence of reactive airways disease by objective tests. The examiner opined that the reported symptoms suggested that much of the wheezing, was related to substances the veteran was exposed to at work. Under the laws administered by VA, disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, § 4.1. 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. Part 4, § 4.7 (1999). In regard to the appellant's contention that he is entitled to higher disability ratings, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("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 importance."), is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's allergic rhinitis and reactive airway disease are currently both evaluated at a 10 percent level pursuant to Rating Schedule criteria for evaluating respiratory system disorders. The Board notes that, by regulatory amendment effective October 7, 1996, substantive changes were made to the schedular criteria for evaluating respiratory system disorders, including allergic rhinitis and reactive airway disease. See 61 Fed. Reg. 46720-46731 (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") has held that a liberalizing change in a regulation during the pendency of a claim must be applied if it is more favorable to the claimant, and if the Secretary has not enjoined its retroactive application. Marcoux v. Brown, 10 Vet. App. 3, 6 (1996), citing Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Therefore the Board considers both sets of criteria in this case in evaluating the two respiratory system disabilities on appeal. The RO considered both the old and the new regulations, and informed the veteran of both the old and new criteria. Therefore, the veteran and his representative were given notice of the old and the new regulations and had an opportunity to submit evidence and argument in support of his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). Allergic Rhinitis Under the criteria for rhinitis under 38 C.F.R. § 4.97, Diagnostic Code 6501, in effect prior to October 7, 1996, a 10 percent evaluation was warranted for definite atrophy of the intranasal structure, and on a showing of moderate secretion. A 30 percent evaluation was contemplated for moderate crusting and ozena, with atrophic changes. For a 50 percent evaluation, the claimant would have to show massive crusting and marked ozena, with anosmia. 38 C.F.R. § 4.97 was changed, effective October 7, 1996, and Diagnostic Code 6501 was discontinued. Now, 38 C.F.R. § 4.97 includes new rating criteria for chronic rhinitis, which may be found at Diagnostic Code 6522. Effective October 7, 1996, allergic or vasomotor rhinitis is evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6522. Under that code, a 10 percent rating is in order where there is allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent rating is assigned if there is rhinitis with polyps. The question then is whether a rating in excess of 10 percent can be assigned under either the former or the revised criteria for allergic rhinitis. Under the former criteria, a 30 percent evaluation requires moderate crusting, ozena, and atrophic changes. A 50 percent evaluation requires massive crusting and marked ozena with anosmia. See 38 C.F.R. § 4.97, Diagnostic Code 6501 (1996). The veteran has reported a history of significant moderate to severe allergic rhinitis requiring significant amounts of antihistamine therapy. However, the medical evidence reflects no exudates, lesions or significant nasal obstruction, and only minimal congestion. The objective medical evidence does not indicate moderate crusting, ozena, anosmia, or atrophic changes as required under the former criteria for a 30 percent rating. Therefore, the Board finds that the disability picture does not more nearly approximate the criteria for a 30 percent rating under the former criteria. Under the revised rating criteria for allergic or vasomotor rhinitis, a higher evaluation of 30 percent is warranted if polyps are present. The 50 percent rating was eliminated under the revised rating criteria. See 38 C.F.R. § 4.97, Diagnostic Code 6522 (1999). The Board finds that because polyps are not shown medically, a 30 percent rating under the revised criteria is not warranted. Consequently, the veteran is not entitled to a rating in excess of 10 percent for his allergic rhinitis disability based on either the current or the former criteria. Reactive Airway Disease Currently, the veteran's service-connected reactive airway disease is rated as analogous to bronchial asthma under 38 C.F.R. § 4.97, Diagnostic Codes 6699-6602, and a 10 percent evaluation is assigned. The old rating criteria for bronchial asthma assign a 10 percent evaluation for mild paroxysms of asthmatic type breathing, characterized by high pitched expiratory wheezing and dyspnea, occurring several times a year with no clinical findings between attacks. A 30 percent rating is assigned when bronchial asthma is moderate and manifested by asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. Severe bronchial asthma shown by frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication; with more than light manual labor precluded, is rated 60 percent disabling. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1996). Effective October 7, 1996, bronchial asthma is to be evaluated under the General Rating Formula for Bronchial Asthma. 61 Fed. Reg. 46,720 (1996) (codified at 38 C.F.R. § 4.97, Diagnostic Code 6602). According to the General Rating Formula for Bronchial Asthma, a 10 percent evaluation is warranted for forced expiratory volume in one second (FEV- 1) of 71 to 80 percent of predicted value; a ratio of FEV-1 to forced vital capacity of 71 to 80 percent; or intermittent inhalation or oral bronchodilator therapy. A 30 percent rating is warranted when the FEV-1 is 56- to 70- percent predicted; when the ratio of FEV-1/FVC is 56 to 70 percent; daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. A 60 percent rating is warranted when the FEV-1 is 40- to 55- percent predicted; when the ratio of FEV-1/FVC is 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 note following those provisions provides 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, Diagnostic Code 6602 (1999). Based on the evidence, the Board finds that a rating in excess of 10 percent is not warranted under the revised rating criteria for rating respiratory disorders. 38 C.F.R. § 4.97 (1999). A 10 percent rating accounts for the veteran's treatment by bronchodilators up to four times per week. Medical records show that post-dilator, FEV-1 ranges between 79 and 87 percent of predicted value, most recently 87 percent; and FEV-1/FVC ranges between 76 and 78 percent, most recently 77 percent. The veteran uses bronchodilator medication two to four times per week and has mild symptoms and normal clinical findings. The evidence does not demonstrate that the veteran's service-connected reactive airway disease is productive of post-dilator findings of: FEV-1 of 56 to 70 percent of predicted value; or FEV- 1/FVC of 56 to 70 percent. Or that the disability requires daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. Diagnostic Code 6602 (1999). With respect to the former regulations, as shown by the medical evidence of record, there is no showing that these attacks are more than mild in nature, or that they are frequent to the extent to warrant an increase. There is no clinical evidence of rather frequent moderate asthmatic attacks, with moderate dyspnea on exertion between attacks. In fact, during the most recent examination in February 1999, the examiner found no wheezing or auscultation; and noted that recent pulmonary function test findings were consistent with normal spirometry and lung volumes. The examiner concluded after examination at that time, there was no objective evidence of any reactive airways disease. The examiner gave an opinion indicating that wheezing symptoms may be related to environmental factors, particularly substances that the veteran was exposed to at work. In addition, there is no clinical evidence of dyspnea at rest or with mild activity. In this regard, the most recent VA examination report indicates that the veteran declined an exercise stress test to further address this question. Overall, the severity of the veteran's reactive airway disease is consistent with no more than mild symptoms. Thus, a rating in excess of the currently assigned 10 percent under the old Diagnostic Code 6602 (1996) is not warranted. With respect to both issues on appeal, the Board notes that the record does not indicate changes in the veteran's disability picture that would warrant "staged" ratings as discussed above and required under Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered possible entitlement to an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b) (1999). However, the record has not presented evidence of such an exceptional or unusual disability picture, with related factors including frequent hospitalizations or marked interference with employment, as to render impractical the application of the regular schedular standards. Moreover, the veteran has reported that he had had no periods when he was incapable of working at his job due to the two disabilities. Accordingly, the Board finds that the RO did not err in failing to refer these claims to the Director of the Compensation and Pension Service for an initial determination. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). ORDER An increased evaluation for allergic rhinitis is denied. An increased evaluation for reactive airway disease is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals