BVA9501279 DOCKET NO. 93-03 753 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an increased evaluation for bronchial asthma, currently evaluated at 30 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. D. Walker, Associate Counsel INTRODUCTION The veteran had active service from March 1952 to February 1956. In May 1990 the veteran filed a claim for increased compensation based on unemployability. In a rating determination issued in September 1991, the Department of Veterans Affairs (VA) Regional Office (RO) determined that the requirements for compensation based on individual unemployability were not met. The veteran was notified of this determination in a notice issued in September 1991, and included the issue in the Notice of Disagreement that he filed in January 1992. The RO, however, has not developed the veteran's appeal of the individual unemployability claim. The Board of Veteran's Appeals (Board) has determined that this issue is not inextricably intertwined with the issue on appeal and is referring this issue to the RO for development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has shortness of breath while at rest or on slight exertion, recurrent tightness in his chest, productive coughing, wheezing, dizziness, cold extremities, nails that turn blueish-grey and sweating. He further states that he has these symptoms and uses medication on a daily basis and is therefore entitled to a higher evaluation. 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 the evidence supports the veteran's claim for an increased evaluation for bronchial asthma. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Symptoms of bronchial asthma are manifested by more than moderately severe obstructive disease shown on pulmonary function tests, dyspnea on slight exertion, constant productive cough, and the lung fields full of wheezes even after the twice-daily use of medication, more nearly approximating a severe impairment than a moderate impairment. CONCLUSION OF LAW The criteria for an evaluation of 60 percent for bronchial asthma are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. The pertinent evidence pertaining to the issue on appeal consists of VA examinations conducted in October 1990 and August and September 1992. Although the veteran reported receiving medical treatment from private physicians from 1976 to 1989, the records of that treatment are not being obtained because the evidence would not be probative of the veteran's current condition. The Board concludes, therefore, that the data currently on file provides a proper basis upon which to consider the merits of the veteran's claim. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). Disability ratings are based on the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.1 (1993). The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. In determining if an increased evaluation should be granted, 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 in equal balance, the claim is allowed. Id. Diagnostic Code 6602, pertaining to bronchial asthma, provides a 30 percent rating for a moderate impairment with rather frequent (separated by only 10-14 day intervals) asthmatic attacks with moderate dyspnea on exertion between attacks. A 60 percent evaluation is provided for a severe impairment with frequent (occurring one or more times weekly) asthma attacks with marked dyspnea on exertion between attacks with only temporary relief by medication and precluding more than light work. The veteran's service medical records show that in March 1952 and July 1955 he received treatment for bronchial asthma. In an April 1966 rating decision, the veteran was granted service connection for bronchial asthma with a 10 percent evaluation, effective in January 1966. This determination was based on a VA examination conducted in March 1966 that provided a diagnosis of chronic perennial bronchial asthma with seasonal exacerbations. The veteran submitted a letter from his private physician dated in October 1975 stating that the veteran had rather severe incapacitating asthma that appeared to be getting progressively worse. The physician recommended that the veteran be given a positive pressure machine to keep in his home in order to alleviate the asthma symptoms. The existing evaluation was increased to 30 percent and incorporated a diagnosis of chronic obstructive lung disease in a rating decision issued in March 1976 that was effective in November 1975. This rating decision was based on a VA examination and pulmonary function studies conducted in January 1976 that showed the symptoms of asthma were manifested by moist rales throughout the lung fields with shortness of breath, wheezing, coughing, and expectorating. The veteran had a positive pressure machine in his home for the administration of asthma medication. The veteran received the medications of Bronkosol by mist and Marax. The report shows the veteran was five feet eleven inches tall and weighed 189 pounds. An X-ray of the chest was negative for any abnormal findings. The pulmonary function studies indicated moderate obstructive pulmonary disease with single breath diffusing capacity (DLCO) compatible with a diagnosis of asthma. The veteran's smoking history was given as 30 pack years. A VA examination conducted in October 1990 indicated that the veteran weighed 214 pounds. The report shows the veteran had musical rales and rhonchi throughout both lungs. He received the medications Vanceril, Tedral, and Medrol packs for bad asthma attacks. A chest X-ray was within normal limits. The results of the pulmonary function studies conducted at that time showed moderately severe obstructive airway disease. In conjunction with a VA examination conducted in August 1992, the veteran reported having periodically severe asthmatic episodes. He used the Vanceril inhaler once in the morning and once at night in order to control his symptoms. He also used Prednisone when his symptoms became severe. The veteran reported to the physician that he had been obtaining his own medications from Mexico without a physician's instruction or prescription. The examining physician noted that the veteran coughed constantly during the examination, producing moderate amounts of yellowish green sputum. The veteran did not appear dyspneic during his coughing spells. He weighed 193 pounds. He showed no clubbing of the fingers and no cyanosis. His lung fields were markedly full of wheezes, even after use of the Vanceril inhaler. The examining physician stated that the veteran demonstrated an increase in his disability since the evaluation in October 1990. A VA examination was also conducted in September 1992. The veteran's weight was given as 180 pounds. He appeared slightly more dyspneic than on his previous examination, showing slight dyspnea on ordinary walking around the examining room. The lung fields were full of wheezes, even after use of the inhaler. He continued to cough during the examination, producing moderate amounts of yellowish green sputum. The physician reiterated that the veteran demonstrated increased disability when compared to the October 1990 examination. In order to support an evaluation in excess of 30 percent under Diagnostic Code 6602 for bronchial asthma, the evidence must show that the veteran has a respiratory disorder with more than moderate symptoms. The objective medical evidence shows that he has periodic asthmatic episodes with dyspnea on slight exertion. He coughs constantly and produces moderate amounts of yellowish green sputum. He takes medication twice daily to alleviate the symptoms. His lung fields are full of wheezes, even after the use of medication. He has positive pressure equipment in his home for the administration of medication during asthma attacks. The examining physician in August and September 1992 stated that the veteran's disorder was worse than in October 1990, at which time it was determined to be a moderate disorder. There is no indication, however, that the veteran's loss of weight is related in any way to his asthma. The evidence shows that the veteran's symptoms represent more than a moderate disorder. In accordance with 38 C.F.R. § 4.7, if there is a question of which of two evaluations should apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation. Analysis of the veteran's history and symptoms shows that the veteran's symptomatology more nearly approximates severe impairment, rather than moderate, warranting an evaluation of 60 percent. ORDER A disability evaluation of 60 percent for bronchial asthma is granted, subject to the regulations governing the payment of monetary benefits. WILLIAM J. REDDY 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.