ASTHMA, BRONCHIAL

KATHLEEN K. GALLAGHER · 2017 · Case ID: 1727207

MIXED

Summary

The Veteran, who served from November 1977 to February 1981 and July 1981 to November 1990, appeals the reduction of his disability rating for asthmatic bronchitis from 60 percent to 30 percent, effective November 1, 2008. He also sought a rating higher than 60 percent. The Board found that the reduction was improper because it was based on a single examination and did not demonstrate sustained improvement in the Veteran's ability to function under ordinary conditions. Evidence showed the Veteran continued to experience symptoms requiring daily inhalational bronchodilator therapy, inhalational anti-inflammatory medication, and intermittent courses of systemic corticosteroids, with frequent emergency room visits and asthma attacks. The Board restored the 60 percent rating effective November 1, 2008. However, the appeal for a rating higher than 60 percent was denied. The Board noted that the Veteran's pulmonary function tests (FEV-1, FVC, DLCO) and maximum exercise capacity did not meet the criteria for a higher rating under Diagnostic Codes 6600 or 6602. Furthermore, the Veteran had not experienced episodes of respiratory failure, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or required outpatient oxygen therapy. The Board also found that the use of Advair was not considered a daily high dose of systemic corticosteroids. The Board concluded that the Veteran's disability level, while warranting the 60 percent rating, did not more nearly approximate the criteria for the next higher disability level.

Rationale

Reduction based on single VA examination; No clear evidence of sustained improvement; Disability level did not clearly improve under ordinary conditions

Special Benefit

NO SPECIAL BENEFIT

Docket No.

10-17 901

Full Decision Text

Citation Nr: 1727207
Decision Date: 07/13/17 Archive Date: 07/25/17

DOCKET NO. 10-17 901 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland

THE ISSUES

1. Whether the reduction from 60 percent to 30 percent disabling, effective November 1, 2008, for asthmatic bronchitis was proper.

2. Entitlement to a disability rating in excess of 30 percent for asthmatic bronchitis from November 1, 2008, until May 4, 2016, and a disability rating in excess of 60 percent beginning May 5, 2016.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

C. Bosely, Counsel

INTRODUCTION

The Veteran served on active duty from November 1977 to February 1981 and from July 1981 to November 1990.

This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 and August 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

A hearing was held in July 2015 before Kathleen K. Gallagher, a Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file.

In October 2015, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional development.

The Board also remanded the issue of whether a reduction in the disability rating from 100 percent to 60 percent disabling, effective April 1, 2006, for asthmatic bronchitis was proper. The Board explained that the Veteran had filed a notice of disagreement (NOD) with regard to this issue, but a statement of the case (SOC) had not been issued. Accordingly, the Board directed the AOJ to issue an SOC, which was completed upon remand in July 2016. The Veteran did not then perfect an appeal of the issue by filing a substantive appeal within 60 days of the July 2016 SOC. Accordingly, that issue is no longer before the Board. 38 C.F.R. §§ 19.32, 20.200, 20.202.

Following the Board's remand, in a July 2016 rating decision, the RO increased the disability rating of asthmatic bronchitis to 60 percent effective from May 5, 2016. The current 30 percent and 60 percent staged ratings do not represent the maximum disability ratings assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum he is seeking. Because higher ratings are available, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claim for a higher rating, as reflected on the title page, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014).

The issues of entitlement to service connection for hypertension and diabetes mellitus, type II, both to include as due to service-connected asthmatic bronchitis, were referred to the AOJ in the October 2015 Board remand. As no action has been taken on the issues since then, the Board remains without jurisdiction over them, and they are again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2016).

FINDINGS OF FACT

1. The Veteran's disability rating was reduced from 60 percent to 30 percent based on a single VA examination, and it is not established that there was an actual improvement in the disability which is reasonably certain to be maintained under the ordinary conditions of life.

2. The Veteran's disability did not more nearly approximate the criteria for a higher-level disability rating, and the signs and symptoms of his disease are contemplated by the ratings schedule.

CONCLUSIONS OF LAW

1. The reduction of the disability rating for asthmatic bronchitis from 60 percent to 30 percent effective November 1, 2008, was not proper and is void ab initio. 38 U.S.C.A. §§ 1155
The Veteran's disability rating was reduced from 60 percent to 30 percent based on a single VA examination, and it is not established that there was an actual improvement in the disability which is reasonably certain to be maintained under the ordinary conditions of life.

2. The Veteran's disability did not more nearly approximate the criteria for a higher-level disability rating, and the signs and symptoms of his disease are contemplated by the ratings schedule.

CONCLUSIONS OF LAW

2. The criteria for the assignment of a disability rating in excess of 60 percent for asthmatic bronchitis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.96, 4.97 DCs 6600, 6602 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

A. Duty to Notify

VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As explained herein below, the procedure for reducing a disability rating involves specific due process requirements, which were met in this case. As it pertains to the increased rating issue, the Veteran was sent a pertinent letter in March 2006. See 38 U.S.C.A. § 5103. A case-specific notice is not required and any other notice defect is deemed not prejudicial. See VAOPGCPREC 6-2014 (VA is authorized to provide notice under § 5103(a) before a claim is filed, including on the standard application forms); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty is satisfied.

B. Duty to Assist

VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).

Here, VA has met the duty to assist the Veteran in the development of the increased claim. His service treatment records have been obtained and appear to be complete. Also, all sufficiently identified VA treatment records during the appeal period are of record. The Veteran has not sufficiently identified any other VA medical records he desires to be obtained. Those private records the Veteran has authorized VA to obtain have been submitted. He did not identify and authorize VA to obtain any other relevant information.

Furthermore, VA examinations have been conducted, and they are adequate to inform the Board's judgment on those complex medical matters raised in this appeal. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014). There is no indication that his symptoms have materially increased in severity since the last VA examination conducted in May 2016. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the evidentiary record appears to be complete.

C. Stegall Compliance

The Board
seki, 26 Vet. App. 97, 105-06 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014). There is no indication that his symptoms have materially increased in severity since the last VA examination conducted in May 2016. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the evidentiary record appears to be complete.

C. Stegall Compliance

The Board also finds that there was substantial compliance with the October 2015 Board remand directives. As relevant, the Veteran was sent a letter in November 2015 asking that he identify any health care providers having additional treatment records pertinent to his appeal. He did not respond. Next, the Veteran's VA treatment records were obtained and associated with the claims file. Next, as directed, the Veteran underwent a VA examination in May 2016 to evaluate the severity of his condition. This VA examination, as indicated, is adequate to evaluate the disability. Finally, the matter was readjudicated in a July 2016 supplemental statement of the case (SSOC), as directed by the Board. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008).

For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time.

II. Analysis

The Veteran in this case is seeking to have the prior 60 percent disability rating restored for his service-connected asthmatic bronchitis. He also maintains that a disability rating higher than 60 percent should be assigned. He clarified at the Board hearing that he would be satisfied with a 60 percent rating, but thought he deserved the 100 percent rating. Board Hr'g Tr. 12.

A. Applicable Law

(1) Disability Rating Reductions

A disability rating that has been in effect continuously for 20 or more years will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. 38 C.F.R. § 3.951(b).

Otherwise, when a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The Veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i).

If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(e).

A reduction is void ab initio if the RO reduces a veteran's disability rating without following these requirements. See, e.g., Greyzck v. West, 12 Vet. App. 288, 292 (1999); but see

VAOPGCPREC 31-97 (Aug. 29, 1997), which
as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(e).

A reduction is void ab initio if the RO reduces a veteran's disability rating without following these requirements. See, e.g., Greyzck v. West, 12 Vet. App. 288, 292 (1999); but see

VAOPGCPREC 31-97 (Aug. 29, 1997), which clarifies that the 60-day "grace period" set forth in 3.105(e) is intended to provide a veteran receiving service-connected disability benefits a reasonable time to adjust to a reduction of benefits or to submit. It is, in other words, more economic in nature; i.e., it is a continuation of benefits to allow sufficient time for adjustment to any problems associated with a reduction or loss of benefits or for submission of evidence to show that the decrease in evaluation was not warranted. Accordingly, a reduction in a disability rating, if otherwise supportable, is not rendered void ab initio by virtue of error in the assignment of the effective date for it. However, a reduction is voidable if a veteran is prejudiced by the error, and an important consideration is whether the claimant was prevented from exercising the due process rights afforded by § 3.105(e). If no prejudice resulted, however, the error can be rectified by awarding one additional month of compensation at the non-reduced percent rate.

The requirements of 38 C.F.R. § 3.105(e) do not apply, however, where there is no reduction in the amount of compensation payable. It is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Therefore, where the evaluation of a specific disability is reduced but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) is not applicable. VAOPGCPREC 71-91.

If the due process requirements are met, Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Moreover, a rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). The 5-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413, 419 (1993). These requirements, however, do not apply to ratings that have not continued for long periods at the same level (five years or more) or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c).

Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421.

Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2.

"[T]he Board must 'establish, by a preponderance of the evidence and in compliance [with]
.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421.

"[T]he Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006).

(2) Increased Disability Ratings

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 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. § 4.7 (2015). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

(3) Disability Schedule

The Veteran's asthmatic bronchitis disability has been assigned a disability rating under Diagnostic Code (DC) 6600-6602 of 38 C.F.R. § 4.97.

The applicable rating schedule is set forth as follows:

6602 Asthma, bronchial:

FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications
100
FEV-1 of 40- to 55-percent 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) courses of systemic (oral or parenteral) corticosteroids
60
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication
30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy
10
Note: In the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record.

DC 6602 clearly makes a distinction between the intermittent or daily use of systemic corticosteroids and the intermittent or daily use of inhaled corticosteroids. LaPointe v. Nicholson, 21 Vet. App. 411 (2006).

Examples of inhaled corticosteroids include beclomethasone (QVAR); budesonide (Pulmicort); ciclesonide (Alvesco); flunisolide (Aerospan); fluticasone (Flovent)
mometasone (Asmanex Twisthaler); and combinations of an inhaled corticosteroid and a long-acting beta2-agonist include budesonide and formoterol (Symbicort); fluticasone and salmeterol (Advair); and mometasone and formoterol (Dulera). See WebMD.com, Inhaled Corticosteroids for Long-Term Control of Asthma, http://www.webmd.com/asthma/inhaled-corticosteroids-for-long-term-control-of-asthma (last visited June
ort); ciclesonide (Alvesco); flunisolide (Aerospan); fluticasone (Flovent)
mometasone (Asmanex Twisthaler); and combinations of an inhaled corticosteroid and a long-acting beta2-agonist include budesonide and formoterol (Symbicort); fluticasone and salmeterol (Advair); and mometasone and formoterol (Dulera). See WebMD.com, Inhaled Corticosteroids for Long-Term Control of Asthma, http://www.webmd.com/asthma/inhaled-corticosteroids-for-long-term-control-of-asthma (last visited June 2017); see also 38 C.F.R. § 20.903(b)(2); Sykes v. Apfel, 228 F.3d 259, 272 (3d Cir. 2000) (addressing administrative notice to apply knowledge of commonly acknowledged facts, plus technical or scientific facts that are within the agency's area of expertise).
Also for consideration, the rating schedule for chronic bronchitis, DC 6600, is set forth as follows:

6600 Bronchitis, chronic:

FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy
100
FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit)
60
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted
30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted
10

Special provisions for the application of evaluation criteria apply for diagnostic code 6600. 38 C.F.R. § 4.96. (1) Pulmonary function tests (PFT's) are required to evaluate these conditions except: (i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria; (ii) When pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) When there have been one or more episodes of acute respiratory failure; (iv) When outpatient oxygen therapy is required. Id. (2) If the DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. Id. (3) When the PFT's are not consistent with clinical findings, evaluate based on the PFT's unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. Id. (4) Post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. Id. (5) When evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. Id. (6) When there is a disparity between the results of different PFT's (FEV
studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. Id. (5) When evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. Id. (6) When there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. Id. (7) If the FEV-1 and the FVC are both greater than 100 percent, do not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. Id.

Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a).

B. Discussion

(1) Disability Rating Reduction

The Board first finds that the due process requirements for reducing the disability of asthmatic bronchitis were met, but that the reduction was nonetheless improper because an improvement is not shown in the Veteran's ability to function under the ordinary conditions of life and work.

Due Process

Here, the RO issued a rating decision in May 2008 proposing to reduce the rating of the Veteran's disability from 60 percent to 30 percent. In the proposed rating notice, the RO advised the Veteran that he had (1) 60 days to present additional evidence to show that compensation payments should be continued at the 60 percent level and (2) that he had 30 days to request a predetermination hearing. The RO also notified the Veteran that this reduction would reduce his overall disability rating (for his combined service-connected disabilities) from 60 percent to 40 percent.

Within 60 days of this notice, the Veteran submitted a notice of disagreement (NOD) later in May 2008 together with additional evidence. He did not request a predetermination hearing. Of note in this regard, he wrote in an August 2008 NOD (disagreeing with the implemented reduction) that "You said in all your decision that I had the right to a person[al] hearing. I do not believe that is true, [b]ecause each time I have made that request." Contrary to his assertion, his May 2008 NOD does not reflect a request for a hearing.

Accordingly, the RO issued a final rating decision in August 2008 reducing the rating to 30 percent effective November 1, 2008. The Board notes that November 1, 2008, is 60 days after the last day of the month in which a 60-day period from the date of August 2008 notice to the Veteran of the final action expired.

The RO's actions here satisfied all procedural requirements under 38 C.F.R. § 3.105. Accordingly, the remaining question is whether a reduction is warranted based on the evidence of record.

Improvement

Although the due process requirements for the reduction were completed properly, the reduction was not warranted because it was done based on only one VA examination, and the remaining evidence does not show an improvement under the ordinary conditions of daily life.

As an initial matter, the reduction was done based upon a single VA examination conducted in March 2008. Under § 3.344, "[r]atings on account of diseases subject to temporary or episodic improvement, e.g., . . . bronchial asthma. . . will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated." Here, the evidence does not clearly show that there was sustained improvement.

The March 2008 VA examination was brief, but recorded the Veteran's complaints of using albuterol as needed, with
, and the remaining evidence does not show an improvement under the ordinary conditions of daily life.

The March 2008 VA examination was brief, but recorded the Veteran's complaints of using albuterol as needed, with Advair in the past. He also said that he was in the emergency room about four or five times in the past 12 months with acute asthma attacks where he was treated and discharged. A PFT was conducted the following month, April 2008, which showed a mild obstructive ventilatory defect with bronchial hyper-reactivity.

Prior to the March 2008 VA examination, the Veteran last underwent a VA examination in June 2006. At that examination, it was found that the Veteran had been prescribed Advair 250/50 as well as Nasocort for six months. He was also taking Combivent and albuterol. He had some improvement of symptoms, but felt his breathing was getting worse and that his exercise tolerance has decreased. He still used his inhalers daily with the Combivent 2 inhalations twice a day and the albuterol inhaler 2 inhalations 3 to 4 times a day. He could walk about 15 to 20 feet before he started to wheeze, and could go up about one flight of stairs. He wheezed more when under stress or when exposed to cold air, smoke or pet dander. He could lift about 120 pounds and carry it about 20 feet, but sometimes just getting out of bed quickly would make him short of breath. The assessment was bronchial asthma requiring daily use of inhaled bronchodilators and lately steroid inhalers for control of symptoms. The FEV1/FVC on the most recent pulmonary function tests was 59 percent.

Even earlier, in November 2005, the Veteran's private provider wrote a statement explaining that the Veteran had significant asthmatic bronchitis, COPD requiring inhaled steroids, bronchodilator, and nasal steroids for control. He had a moderate to marked obstructive pulmonary impairment, and he required the medications for control of his symptoms.

A private treatment note after the reduction, in September 2008, shows that the Veteran was off Advair for several months, but a PFT at that time showed a mild to moderate limitation. Then, at his primary VA provider in February 2009, he had complaints of sore throat, increased wheezing, and productive coughing. Cough was productive of clear to white phlegm, which was assessed as some exacerbation of asthma due to a viral upper respiratory infection. He was to continue Advair as prescribed and add albuterol at least 2 inhalations three times per day.

He was again prescribed Advair by his private provider in April 2009, and a July 2009 PFT again showed a moderate to marked limitation. In March 2010, he complained of being short of breath due to asthma, although in June 2010, he reported good control of his symptoms with Advair. He went to the emergency room in August 2011 due to symptoms, such as wheezing. He was started on albuterol and prednisone for acute asthma exacerbation.

He was again admitted in May 2012 for symptoms of poorly-controlled asthma noted to include use of albuterol rescue inhaler three times daily. He complained of exertional dyspnea but had stopped using Advair for concern of osteoporosis and dangerous TV ads. He was advised to restart Advair and continue albuterol/fluticasone.

In April 2014, he had asthmatic bronchitis noted as stable, but had shortness of breath relieved by albuterol with symptoms every day. He had stopped Advair as he felt he did not tolerate it well. He also had night time cough most nights. Similar symptoms were noted in September 2014. Then in June 2015, he complained of sometimes feeling as though he could not breathe, which he described as "frightening." He noted that his asthma was usually triggered by stress or allergies, and he perceived that his breathing problems were worsening over time. In September 2015, his symptoms were again noted as "stable," but at a different appointment the following day, he complained of asthma that "knocks me to my knees" five days of the week and typically taking him several minutes to recover from an asthma attack. Also, the frequent asthma attacks interfered with his ability to do his job, and caused great distress for him. He also complained at a February 2016 Mental Health consultation that he had increased asthma attacks in stressful situations.

Finally, he underwent a further VA examination in May 2016. The examiner found symptoms involving intermittent courses or bursts of systemic (oral or parenteral) corticosteroids 3 times in past 12 months, daily inhalational bronchodilator therapy and inhalational anti-inflammatory medication. He had to see a physician for asthma and wheezing for prednisone taper every 3 to 4 months.

This evidence demonstrates a disability picture, both before and after the reduction, involving symptoms, such as shortness of breath and wheezing, which required daily use of an albuterol inhaler with occasional exacerbations requiring hospital visits, usually resulting in prescriptions for Advair, a corticosteroid. There is no material change in the disability level after the reduction. Also noticeable, the symptoms described in the May 2016 VA examination, are not materially different from those documented in the March 2008 VA examination, especially as they pertain to his symptoms under the ordinary conditions of daily life. Thus, it cannot be found that all the evidence of record clearly warrants the conclusion that a sustained improvement has been demonstrated under the ordinary conditions of daily life. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. at 421. Thus, the reduction was improper and is void ab initio. Greyzck, 12 Vet. App. at 292. This restores the 60 percent disability rating throughout the appeal period beginning from the date the reduction went into effect on November 1, 2008. To this extent, the appeal is granted.

(2) Increased Disability Rating

Although a 60 percent disability rating is restored throughout the appeal period, the next higher rating is not for assignment as the Veteran's disability level has not more nearly approximated FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications, as set forth in DC 6602, or FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, as set forth in DC 6600. See 38 C.F.R. § 4.97.

With regard to the PFT results, his FEV-1 was 104 percent in April 2008, 42 percent in July 2009, and 100 percent in May 2016. Thus, it was not less than 40 percent predicted. His FEV-1/FVC was not given with post-bronchodilator results in April 2008, or July 2009; it was 64 percent in May 2016, which was not less than 40 percent. His DLCO (SB) was not given in April 2008 or July 2009, but was 89 percent in May 2016, which was not less than 40-percent predicted. The maximum exercise capacity was not tested at any point.
-1 was 104 percent in April 2008, 42 percent in July 2009, and 100 percent in May 2016. Thus, it was not less than 40 percent predicted. His FEV-1/FVC was not given with post-bronchodilator results in April 2008, or July 2009; it was 64 percent in May 2016, which was not less than 40 percent. His DLCO (SB) was not given in April 2008 or July 2009, but was 89 percent in May 2016, which was not less than 40-percent predicted. The maximum exercise capacity was not tested at any point. Thus, the PFT results under both DC 6602 and DC 6600 were not more nearly approximated at the higher disability level.

He has not had episodes of respiratory failure; cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); or required outpatient oxygen therapy.

Finally, as indicated, he has been prescribed Advair, which is a corticosteroid. These prescriptions are not indicated as a daily high dose. To the contrary, the most recent VA examination, in May 2016 shows that they were not. The VA examiner noted intermittent courses or bursts of systemic (oral or parenteral) corticosteroids 3 times in past 12 months, but otherwise only daily inhalational bronchodilator therapy and inhalational anti-inflammatory medication. In the context of this examination report, which appears to be the type regularly kept for this purpose, the examiner endorsed all symptoms present. Because the examiner did not indicate daily use of high dose corticosteroids (or immuno-suppressive medications), it is assumed that the examiner intended to indicate that such use was not present. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); cf. Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011).

In short, the Veteran's symptoms, while meeting the 60 percent disability level throughout the appeal period, has not more nearly approximated the next-higher disability level. The Board further notes that separate ratings cannot be assigned based on the different diagnostic codes applicable in the Veteran's case. See 38 C.F.R. § 4.96(a). Thus, the appeal for a higher disability rating is denied.

Referral for a consideration of assignment of an extraschedular rating is not warranted. The severity of the symptoms associated with Veteran's disability, as set forth in the rating schedule, is contemplated along a broad and non-exclusive continuum as demonstrated by the PFT results and other objective manifestations, especially medication use. These objective criteria are intended to establish disability ratings based on the signs and symptoms involved in representative disabilities as manifested in a Veteran's daily life. See 71 Fed. Reg. 52457 (Sept. 6, 2006) (disability due to respiratory disease in veterans ranges from minimal to very severe, and veterans of all ages and all degrees of physical conditioning undergo examinations for respiratory disability). The rating schedule specifically excludes all subjective assessment criteria, such as self-reported symptoms, in favor of PFTs and other objective criteria in order to ensure consistent ratings. 67 Fed. Reg. 54394 (Aug. 22, 2002) (proposed rule). Therefore, the complete and comprehensive signs and symptoms of the Veteran's asthmatic bronchitis are contemplated by the rating schedule. Thus, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321.

ORDER

As the disability rating of asthmatic bronchitis was not properly reduced from 60 percent to 30 percent effective November 1, 2008, the 60 percent rating is restored as of that date.

A disability rating in excess of 60 percent for asthmatic bronchitis is denied.

____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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