Citation Nr: 0004076 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 93-03 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased evaluation for bronchial asthma with rhinitis, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran had active service from November 1978 to October 1985. When this matter was last before the Board of Veterans' Appeals (Board) in January 1997, it was remanded to the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) for further development and the readjudication of the issue of entitlement to an evaluation in excess of 30 percent for bronchial asthma with rhinitis. Supplemental statements of the case were issued in August 1998 and August 1999. The case is now ready for further appellate review. A March 1997 rating action denied service connection for right upper extremity disability. The veteran filed a notice of disagreement in July 1997 and a statement of the case was issued the following month. There has been no substantive appeal received regarding that matter and the Board does not have jurisdiction of it. 38 U.S.C.A. § 7105 ((West 1991). FINDINGS OF FACT The veteran's asthma with rhinitis is productive of shortness of breath on walking briskly two blocks or one flight of stairs; occasional wheezing; seasonal exacerbations; and normal chest X-ray. It is controlled by medication and an inhaler, and requires no more than one visit to a physician every two months for care of exacerbations, without the need for intermittent courses of systemic corticosteroids. Pulmonary function tests of record have revealed pre-drug FEV-1 levels to be equal to or greater than 80 percent of predicted, and FEV/FVC to be equal to or greater than 96 percent of predicted. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for asthma with rhinitis have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.97, Diagnostic Code (DC) 6602 (1996) and (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where a disability has already been service-connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The veteran's service-connected respiratory disability is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6602 (1999). The RO has properly considered both the former version of this Diagnostic Code as well as the amended version that became effective October 7, 1996. Since his appeal was pending at the time the applicable regulations were amended, the veteran is entitled to consideration under whichever set of regulations - old or new - provide him with a higher rating. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The veteran had reported a history of childhood asthma upon entry into service, but was experiencing no difficulty at the time of entry. Based upon the in-service treatments of exacerbations of asthma, a condition that eventually resulted in his medical discharge from service, a December 1985 rating decision granted service connection for bronchial asthma with rhinitis. In the same decision a 10 percent disability evaluation was assigned, effective from November 1, 1985, the day following the veteran's separation from service. In March 1991, the veteran filed a claim for an increase in the evaluation of his service-connected asthma, and it is that claim that resulted in the current appeal. VA and private outpatient and hospitalization treatment records document that the veteran was seen in emergency room settings on several occasions for exacerbations of his asthma or for follow-up of prior treatment. They also show that he was hospitalized on at least three occasions for that disorder. More specifically, these records document that the veteran was seen on an outpatient basis on three occasions in 1991, three occasions in 1992, six occasions in 1994, and one occasion in 1996. They further show that the veteran was hospitalized for his respiratory disorder in December 1993, January 1994, and December 1996. An October 1991 pulmonary function test showed a pre-drug FEV-1 of 88 percent of predicted and FEV/FVC of 96 percent of predicted. VA nose and sinuses examination in June 1992, resulted in an assessment that the veteran had symptoms characteristic of chronic rhinosinusitis that the examiner believed had a strong allergic component. Following an August 1992 VA non-tuberculosis pulmonary examination, the examiner's impression was asthmatic bronchitis with periodic exacerbations. The examiner noted that the veteran was mildly symptomatic at the time of the examination, and that he has two episodes per month of exacerbations necessitating emergency room visits. A March 1994 pulmonary function test showed a pre-drug FEV-1 of 81 percent of predicted and FEV/FVC of 99 percent of predicted. An April 1996 pulmonary function test showed a pre-drug FEV-1 of 80 percent of predicted and FEV/FVC of 99 percent of predicted. Following an April 1996 VA trachea and bronchi examination, the examiner's impression was asthma with periodic exacerbations one to two times per month, necessitating on occasion an emergency room visit. The examiner noted that the veteran has a problem obtaining medication, and that at the time of the examination had moderately severe asthma that necessitated regular medication usage. Based upon the foregoing evidence, in a May 1996 rating decision, the evaluation of the veteran's service-connected bronchial asthma with rhinitis was increased from a 10 percent rating to a 30 percent rating, effective from March 18, 1991. Pursuant to the Board's January 1997 remand, the veteran was afforded another VA pulmonary examination. In conjunction with that examination, a May 1997 pulmonary function test showed a pre-drug FEV-1 of 108 percent of predicted and FEV/FVC of 98 percent of predicted. The physician interpreting the test noted a normal spirometry; normal lung volumes; that "MVV was low relative to FEV-1, which suggested poor patient effort and/or neuromuscular disorder"; normal gas transfer; and normal PO2 for age. The interpreting physician commented that there was no significant change in flow without the bronchodilator. Upon VA non-tuberculosis pulmonary examination in May 1997, the veteran stated that he takes two inhalers (albuterol and beclomethasone), and also has a nebulizer at home that he takes fairly frequently, perhaps twice a month. It was noted that he also takes theophylline twice a day. The veteran noted that he was not regular in taking his medications, a situation that was attributed to a possible lack of funds. It was noted that he had visited the Anniston Emergency Room 5 to 6 times over the past year for exacerbations of his asthma. It was further reported by the veteran that he had been hospitalized twice over the past twelve months for exacerbations of his asthmatic bronchitis, with the most recent being in January 1997. A review of systems was positive for shortness of breath on "perhaps walking briskly two blocks or at one flight of stairs." The veteran did not run because of shortness of breath. He reported that he felt as though he sleeps fairly well and that he has exacerbations of asthma, particularly with the change of the season. The veteran "describe[d] himself as having flare-ups that necessitate emergency room visits every two months. Upon examination, the veteran was described as a very muscular appearing individual in no acute distress. Vital signs were stable, and cardiac examination showed regular rate and rhythm. Examination of the lungs found good expiratory and inspiratory excursions with no wheezing or E-A dullness. The examiner's impression was "asthma with intermittent use of medications." It was noted that the veteran denied any steroids, although it sounded to the examiner as if the veteran does receive courses of steroids while hospitalized or in the emergency room setting. It was noted that the veteran was not then on steroids or immunosuppression. It was also noted that he was not compliant with medications due to financial problems, but the examiner counseled the veteran to take his medicine regularly. It was noted that the veteran's last theophylline level was well below the therapeutic range. The examiner stated that the veteran had limitations with regard to his inability to run briskly, and that walking briskly for more than a block or two, or one flight of stairs will cause him some shortness of breath. Finally, it was noted that the veteran had frequent emergency room visits. Chest X-ray showed no significant abnormality. As indicated, the veteran is entitled to consideration under whichever set of regulations- old or new - governing the evaluation of his respiratory disability that provide him with a higher rating. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the new criteria that became effective October 7, 1996, a 30 percent evaluation contemplates FEV-1 of 56 to 70 percent of predicted or; FEV-1/FVC of 56 to 70 percent, or; daily inhalation or oral bronchodilator therapy; or; inhalational anti-inflammatory medication. A 60 percent evaluation under the new criteria contemplates FEV-1 of 40 to 55 percent of 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) course of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1999). Where entitlement to compensation has already been established, and an increase in disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this case, the evidence of record shows that the veteran's latest May 1997 pulmonary function tests resulted in FEV-1 of 108 percent of predicted and FEV/FVC of 98 percent of predicted. Prior pulmonary function tests of record failed to show pre-drug FEV-1 less than 80 percent of predicted or FEV/FVC less than 96 percent of predicted. These results were pre-bronchodilator, with post-bronchodilator findings even higher. These findings do not meet, much less exceed, the criteria for a 30 percent rating. In that regard, the Board is compelled to reference a March 16, 1994, VA Pulmonary Clinic outpatient treatment record that documents the veteran's appearance for follow-up of his pulmonary function tests. The treatment record purports to compare the results of a March 16, 1994, pulmonary function test to the results of an April 23, 1991, pulmonary function test. In that comparison, it is purported that the FEV-1/FVC in the March 1994 test was 78 percent of predicted, and that the FEV-1/FVC in the April 1991 test was 76 percent of predicted. When looking at the actual Pulmonary Function Reports for the tests in question, however, the FEV-1/FVC in the March 1994 test was 99 percent of predicted, and the referenced April 23, 1991 test (a test that was actually conducted on October 23, 1991) shows that the FEV-1/FVC was 96 percent of predicted. Notwithstanding, even if one were to accept as fact what appears to be an erroneous interpretation that the veteran's FEV-1/FVC ratio has been as low as 76 percent of predicted, such results are still contemplated within the criteria for a 30 percent rating. None of the pulmonary function disability requirements for a 60 percent rating have been met. Specifically, the veteran has always been tested to have an FEV-1 greater than 55 percent of predicted and an FEV-1/FVC greater than 55 percent. Further, by the veteran's own admission, his flare-ups or exacerbations of his asthma necessitate emergency room visits no more than every two months. The medical evidence of record does not show otherwise. Specifically, although the private and VA post-service treatment records reflect that the veteran has been treated for exacerbations of asthma on various occasions, they do not show that he has had to visit a physician at least monthly for required care of exacerbations. Nor does the record reflect a course of systemic corticosteroids. It is therefore concluded that none of the requirements for a 60 percent rating have been met or approximated under the most recent rating criteria for Diagnostic Code 6602 (1999). More specifically, what the recent medical records show is that when the veteran is compliant with his medication regimen, his bronchial asthma is well controlled. In summary, while it is clear that the veteran has had an ongoing problem with his respiratory symptoms over the years, it is not currently shown that his visits are on a monthly basis. The most recent evidence reflects that his complaints appear to be fairly well controlled with his medication and use of an inhaler. This evidence simply does not meet the criteria for a rating in excess of 30 percent under the new criteria. In short, his symptomatology is more consistent with the new diagnostic criteria for a 30 percent rating. As noted, however, the veteran's disability must also be evaluated under the former criteria for evaluating respiratory disorder. Karnas, supra. A 30 percent evaluation, under the former criteria, contemplated asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. To obtain the next higher rating of 60 percent under the former criteria, it would have to be shown that the veteran experienced 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. 38 C.F.R. § 4.97, DC 6602 (1996). The Board finds that a 30 percent evaluation under the former criteria also most accurately describes the veteran's current level of disability due to his respiratory disability. This rating contemplates rather frequent asthmatic attacks with moderate dyspnea on exertion between attacks. To obtain the next higher rating of 60 percent, it would have to be shown that he experienced one or more asthma attacks each week, with marked dyspnea on exertion between attacks with only temporary relief by medication, and with more than light manual labor precluded. Such severity of symptoms is simply not indicated by the clinical evidence as summarized above. As to the applicability of other Diagnostic Codes, the Board notes that under the old version of 38 C.F.R. § 4.7, Diagnostic Code 6510, regarding rhinitis, a 30 percent rating was warranted for chronic, atrophic rhinitis with moderate crusting and ozena, atrophic changes, and a 50 percent rating was warranted with massive crusting and marked ozena, with anosmia. Diagnostic Code 6510 (1996) Under the new criteria, the general rating criteria for sinusitis (and rhinitis by analogy) (Diagnostic Codes 6510 through 6514) states that three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 30 percent evaluation. For a 50 percent evaluation for sinusitis, it must be following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The veteran's asthma is his predominant pulmonary disability, as described in nearly every private and VA examination report of record, including the most recent 1997 VA examination report. It is clear from the above reported clinical findings that the veteran's respiratory disorder is best rated under Diagnostic Code 6602 regarding asthma. His condition simply does not reflect clinical findings under the Diagnostic Codes for rhinitis, or sinusitis by analogy, to warrant a rating in excess of the 30 percent rating under any other potentially applicable code. ORDER A rating in excess of 30 percent for asthma with rhinitis is denied. Thomas J. Dannaher Member, Board of Veterans' Appeals