BVA9503049 DOCKET NO. 93-05 289 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Restoration of a 30 percent rating for allergic asthmatic bronchitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant, a veteran, served on active duty from November 1972 to August 1976 and from July 1982 to September 1988. The Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO) proposed the reduction of the appellant's 30 percent rating for allergic asthmatic bronchitis to 10 percent in November 1990, and notified the appellant of its intention. The effective date of the 30 percent rating had been September 10, 1988. An RO rating decision of July 1991 executed the formerly proposed reduction, effective from October 1991. The appellant appealed that determination. A hearing was held at the RO in August 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the rating reduction executed by the RO should not have occurred, for several reasons. First, the November 1990 rating action did not cite 38 C.F.R. § 3.344 (1994) or mention material improvement or sustained improvement and was based on only one examination. Next, the appellant's disability has not improved. He has dyspnea on exertion and other symptoms warranting a 30 percent rating. While his pulmonary function tests may not have shown significant impairment, one test was substantially normal even though he was admitted for treatment and noted to be using his accessory muscles of respiration. Thus, the pulmonary function tests may not be indicative of the severity of the disability present. Additionally, the pulmonary function tests were performed with a substantial amount of medication being taken just beforehand, and the appellant additionally had taken medication the morning of the examination. He should have been evaluated without any medication in his system. In July 1992, he had wheezing even though the pulmonary tests were nearly normal. The pulmonary function tester gave him too much medicine before the test, also. Consideration of the provisions of 38 C.F.R. §§ 3.344, 4.7, and the benefit of the doubt doctrine is requested. 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(s). 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 a disability rating greater than 10 percent for allergic asthmatic bronchitis. FINDINGS OF FACT 1. The appellant's 30 percent disability rating for allergic asthmatic bronchitis had been in effect for less than five years when the RO reduced it to 10 percent in July 1991. Based on service medical records, VA outpatient treatment records and examinations in August 1990, he was doing well on medications with no clinical symptoms found and with improvement shown. 2. The appellant does not have or nearly approximate asthmatic attacks rather frequently (i.e., separated by only 10-14 day intervals) or moderate dyspnea on exertion between attacks. 3. The evidence shows no more than mild asthmatic bronchitis. 4. The service-connected disability does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.344, Part 4, § 4.7, Diagnostic Codes 6600, 6601, 6602 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before we may discuss the merits of a claim, we must first determine whether it is well grounded; that is, whether it is plausible. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1991). We conclude that the appellant's claim is well grounded. Therefore, we must determine whether the VA has fulfilled its duty to assist him pursuant to 38 U.S.C.A. § 5107. We conclude that it has. It has examined him and obtained all necessary evidence. Accordingly, we may discuss the claim on the merits. The evidence The appellant was service-connected for allergic asthmatic bronchitis because he had a history of treatment for it in service from 1974. A pulmonary function test done on April 6, 1987 showed an FEV-1 of 71 percent of predicted. A 30 percent rating was assigned by an RO rating decision of July 1989 based on service medical records. At that time, the RO scheduled a VA examination to be conducted in September 1991. After the appellant applied for service connection for a mental disorder, VA medical treatment records were obtained by the RO to consider in conjunction with that claim. They and evidence obtained since then reveal the following. In February 1989, the appellant reported a history of asthma and had audible wheezing. It was noted that he used medications for it. In late February 1989, there were no wheezes or rales, and he reported that his breathing was mildly improved. The assessment was improved asthma. Follow-up treatment in March 1989 revealed that his breathing had been good, and it was felt that his asthma was stable. In April 1989, he reported that his asthma was under control, and that he had no shortness of breath or wheezing. Clinically, the lungs were clear, with no wheezing or rales. It was felt that his asthma was stable. On July 20, 1989, it was reported that he had recently relocated, to Des Moines, Iowa, from Texas, and that he had had increased respiratory problems since then. He was using his Proventil more often. He presented with dyspnea, orthopnea, and a nonproductive cough, increasing since the move. His shortness of breath had become progressively worse, preventing him from even mild exertions such as walking and lifting small boxes. He had run out of Theophylline the day before being seen. Clinically, his lungs were tight. He had bilateral inspiratory and expiratory wheezes, and was using his accessory muscles of respiration. His extremities exhibited no cyanosis or edema. The impression was asthma exacerbation. Medications were prescribed. His lungs had better air entry and no wheezes or tachypnea. He was not coughing or using his accessory muscles. Pulmonary function tests revealed a mild to moderate obstruction airflow disease with minimal response to bronchodilators. On July 27, 1989, no asthmatic bronchitis findings were reported. In early September 1989, the assessment was asthma with no clinical signs. Later in September 1989, he reported that his last asthma exacerbation was in July 1989. He also reported dyspnea on exertion. It was reported that he was feeling okay presently with no wheezing. Clinically, the lungs were clear with no wheezes or rales. In February 1990, the appellant reported that his breathing had improved, and that he had started jogging. His medications were reviewed and their continuation was prescribed. In June 1990, he had no wheezes or rales, and his medications were continued. In August 1990, a VA pulmonary examination was conducted. The appellant reported that he was working as a nurse and did not report any time lost in the past year. He reported having first had shortness of breath and wheezing in 1974 and having been started on medication. He still had had problems and had been diagnosed with moderate obstructive pulmonary disease. He had done fairly well on inhaler until 1983. A pulmonologist had placed him on Theo-Dur and Proventil, but Theo-Dur had been discontinued due to mood changes. Clinically, his respiratory rate was 20 per minute. His lungs were clear to auscultation. The ratio of inspiration to expiration was 1:1 1/2. There was no intercostal muscle retraction. There was no pretibial edema or clubbing or cyanosis of the extremities. The diagnosis was history of asthma, doing well on current medications. On pulmonary function testing, FEV-1 was 88 percent of predicted before drugs and 107 percent of predicted after drugs. Lung volumes were within or above normal ranges. The appellant was admitted to a VA Hospital for 10 days in June 1991. The review of systems reported that he had had occasional wheezing and shortness of breath with exercise and especially at night. A personality disorder with narcissistic features was diagnosed. It was reported that in 1988, the appellant had had MMPI testing which had suggested hypochondriacal and histrionic traits. Clinically, his lungs were clear to auscultation bilaterally. A chest X-ray was normal. No problems were encountered with bronchial asthma during the hospitalization, the report states. A VA examination was conducted in July 1992. The appellant reported that he would be short of breath unless he took his medicine, and that he can not exercise. On clinical examination, there was ongoing inspiratory wheezing. His expiration was normal. His chest was clear to auscultation and percussion. There was no secondary swelling of the legs. The diagnosis was asthma with shortness of breath controlled by medications. Pulmonary function testing revealed a pre-bronchodilator FVC that was 121 percent of predicted, and a FEV-1 that was 93 percent of predicted. He was felt to have mild obstructive disease demonstrated by the testing. A hearing was held at the RO in August 1992. During the hearing, the appellant reported that he has exercise-induced intolerance. Transcript (T.) at 3. He stated that he worked as a floor nurse in an I.C.U. unit which includes lifting patients. T.4. Doing heavy exercise causes him to become short of breath. He can not do cardiac compressions for CPR for very long, and he is a nurse. Turning some patients over in their beds, usually heavy patients, is difficult. Carrying the groceries from the garage to the house causes him some shortness of breath. He medicates it when that happens. Walking up one flight of stairs will cause it. He feels like he can not get enough air. His primary problem was shortness of breath. T.6. He reported that sometimes at night when he sleeps, it feels like someone is choking him. This will last for 20 or 30 minutes. He reported that he used to run, but not any more, because of his asthma, due toe shortness of breath. T. 7. He has gained weight and weighs 194 pounds (compared with an ideal weight of 170 to 175 pounds. He loses no time from work due to his condition. T. 8. Analysis A November 1990 rating action considered service medical records, VA outpatient treatment records in 1989-1990 and VA examinations in August 1990 and reported a history of asthma with no clinical symptoms found and that the veteran was doing well on current medications. He was advised of a reduction in his service-connected disability evaluation from 30 to 10 percent because medical evidence showed "improvement". Since the appellant's 30 percent disability rating had not been in effect for five or more years prior to its reduction, the provisions of 38 C.F.R. § 3.344 have no application. They apply only in cases where a disability rating has been in effect for five years or more. Brown v. Brown, 5 Vet.App. 413, 416-8. "The provisions (of 38 C.F.R. § 3.344) apply to ratings which have continued for long periods at the same level (5 years or more). (last set of parentheses were in original) They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement ... in these disabilities will warrant reduction in rating." 38 C.F.R. § 3.344(c). Accordingly, per 38 U.S.C.A. § 1155, the appellant's disability rating, like those of other veterans, should normally be determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. In the appellant's case, applicable Diagnostic Codes would be 6600, 6601, 6602, and 6603. If the appellant has or nearly approximates moderate chronic bronchitis, with considerable night or morning cough, slight dyspnea on exercise, and scattered bilateral rales; or mild bronchiectasis with paroxysmal cough, and mostly night or morning purulent expectoration; or mild bronchial asthma with paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between the attacks; or mild pulmonary emphysema, with evidence of ventilatory impairment on pulmonary function testing and/or definite dyspnea on prolonged exertion, then a 10 percent rating should be assigned. 38 C.F.R. Part 4, § 4.7, Diagnostic Codes 6600, 6601, 6602, and 6603. If he has or more nearly approximates moderately severe chronic bronchitis, with persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exercise, rales throughout the chest, and beginning chronic airway obstruction; or moderate bronchiectasis, with persistent paroxysmal cough at intervals throughout the day, abundant purulent and fetid expectoration, and slight, if any, emphysema or loss of weight; or moderate bronchial asthma with asthmatic attacks rather frequently (separated by on 10-14 day intervals) with moderate dyspnea on exertion between attacks; or moderate pulmonary emphysema, with moderate dyspnea occurring after climbing one flight of steps or walking more than one block on level surface, and pulmonary function tests consistent with moderate emphysema, then a 30 percent rating would be warranted. 38 C.F.R. Part 4, § 4.7, Diagnostic Codes 6600, 6601, 6602, and 6603. If the appellant's disability falls relatively equally between the level of disability described two paragraphs above and that described one paragraph above, a 30 percent rating should be assigned, because when there is a relative equipoise of positive and negative evidence as to the degree of disability, the benefit of the doubt should be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). Gilbert v. Derwinski, 1 Vet.App. 55. The evidence strongly tends to indicate that the appellant's allergic asthmatic bronchitis is well controlled by medication. He started to jog at one point because he was doing well. His lungs have been clear, as has a chest X-ray, and pulmonary function tests showed either mild or mild to moderate impairment. The one that was mild to moderate was the one that was conducted right after the appellant had had an acute attack after he had run out of theophylline. The other two were more normal. The hospital visit after running out of theophylline was the only time he has been seen using his accessory muscles of respiration. He quickly recuperated with treatment, did not have a problem later that month, and was not seen again until September 1989, when he reported feeling okay and had normal clinical findings. He has never had any cyanosis. In many if not the majority of the medical records, it is essentially reported that the appellant's respiratory disability is stable or under control by medications. This most nearly approximates the proviso in the 10 percent rating for Diagnostic Code 6602 (high pitched expiratory wheezing and dyspnea occurring several times a year with no clinical findings between attacks). None of the medical records indicate that he has moderate pulmonary disability. The appellant does have some dyspnea on exertion, but it appears to be only slight, and significantly disabling dyspnea, by a review of his own testimony, appears to occur normally only when he is performing heavy exertion. A lesser extent and more normal amount of dyspnea occurs with lighter exertion. The appellant said only that he had some dyspnea on carrying groceries and walking up flights of stairs. These circumstances do not reflect more than mild impairment. Possible hypochondriacal and histrionic personality features and evidence of narcissism have been reported. It may be that he is concerned with his disability more than he should be and complains out of proportion to the actual clinical severity of the disability at issue. However, he does not have moderate dyspnea on exertion between asthmatic attacks, and the only attack he has had over the course of his claim that is documented is the one that followed his running out of theophylline. Also, he does not have asthmatic attacks about every 10 to 14 days. There are very few disabling abnormal findings overall. Thus, the 10 percent criteria for Diagnostic Code 6602 are more nearly approximated than the 30 percent criteria. As such, a 10 percent rating would be called for under this Diagnostic Code. 38 C.F.R. § 4.7. Considering the appellant's disability under the provisions of 38 C.F.R. Part 4, Diagnostic Code 6603, it is noted that he does not have pulmonary function tests consistent with "moderate" emphysema. The worst pulmonary function test was the one that was consistent with mild to moderate obstruction airflow disease, and this was right after an asthma attack and the appellant was not on medications properly. The other two pulmonary function test data showed no more than mild findings. Therefore, the criteria for a 10 percent rating pursuant to Diagnostic Code 6603 are more nearly approximated than those for a 30 percent rating. The appellant's disability picture does not closely resemble the rating criteria of Diagnostic Codes 6600 or 6601. His disability picture is not predominantly one of coughing and expectoration. Accordingly, the criteria for an increased rating pursuant to them have not been met. 38 C.F.R. § 4.7. The appellant claims that his disability should not have been rated based upon the level shown while he is on medication, and that the results of pulmonary function tests should be discounted. The rating criteria, however, contemplate both rating the disability as shown while under medication, and consideration of the results of pulmonary function testing. 38 C.F.R. Part 4, Diagnostic Codes 6602 (60 percent criteria mention only temporary relief by medication as one of the rating factors) and 6603 (rating criteria for all disability levels listed mention pulmonary function test results as a rating factor). The Board may not ignore the applicability of the rating schedule, because it is law. 38 U.S.C.A. §§ 1155, 7104 (West 1991); 38 C.F.R. § 3.321(a). Lastly, the appellant has asserted that one of the pulmonary function testers gave him too much medicine before a pulmonary function test, but he has submitted no evidence to support this, and he, being a layperson, is incapable of proving this through the statements he has made as he is not a competent witness as to proper medical dosages or the interpretation of pulmonary function tests. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet.App. 91, 93 (1993). In cases where the service-connected disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards, an extraschedular evaluation may be assigned. 38 C.F.R. § 3.321(b)(1). The appellant has testified that he is a nurse and that his disability impairs him from performing some tasks, including work-related tasks. He still works as a nurse, however. The inability to do certain tasks, including work-related tasks, moreover, is not shown to markedly interfere with his employment. No exceptional impairment from work due to hospitalization is documented. The benefit of the doubt doctrine is not for application, as the evidence working against a 30 percent rating clearly outweighs that working in favor of one. Gilbert, 1 Vet.App. 55-6. ORDER Restoration of a disability rating in excess of 10 percent for allergic asthmatic bronchitis is denied. SAMUEL W. WARNER 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.