judge_norm: MARK F HALSEY

condition: hypertension

text:
Citation Nr: 0406000
Decision Date: 03/05/04    Archive Date: 03/19/04

DOCKET NO.  03-10 143	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska

THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10
percent for a right foot disability.

2.  Entitlement to an initial evaluation in excess of 10
percent for a left foot disability.

3.  Entitlement to service connection for heart disease and
hypertension secondary to service-connected post-traumatic
stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	John Stevens Berry, Attorney
at Law

ATTORNEY FOR THE BOARD

M. Hannan, Counsel

INTRODUCTION

The appellant had active service in the United States Army
from April 1966 to April 1968.  This case comes before the
Board of Veterans' Appeals (Board) on appeal from rating
decisions issued by the Department of Veterans Affairs (VA)
Regional Office (RO) in Lincoln, Nebraska that, in part,
awarded 10 percent ratings for the veteran's right and left
foot disabilities, and denied a claim for secondary service
connection for heart disease and hypertension.

As suggested above, the veteran has appealed from a February
2003 rating decision that awarded service connection for left
and right foot disabilities.  The Board notes that the 10
percent ratings for the foot disabilities have been in effect
since the grant of service connection.  As such, the guidance
of Fenderson v. West, 12 Vet. App. 119 (1999) is for
application.  The Board has therefore listed the issues on
the title page as ones of entitlement to higher initial
ratings.

FINDINGS OF FACT

1.  The appellant's right foot disability currently is
manifested by subjective complaints of pain and pain on use,
and objective medical findings of an antalgic gait, normal
arch patterns, no instability of the ankle mortise, normal
alignment of the Achilles tendon, no plantar wart lesions,
tenderness to palpation of the forefoot, calluses, and
calcaneal enthesopathy, with no evidence of hammertoes, high
arch, clawfoot or other specific deformities.

2.  The appellant's left foot disability currently is
manifested by subjective complaints of pain and pain on use,
and objective medical findings of an antalgic gait, normal
arch patterns, no instability of the ankle mortise, normal
alignment of the Achilles tendon, no plantar wart lesions,
tenderness to palpation of the forefoot, calluses, and
calcaneal enthesopathy, with no evidence of hammertoes, high
arch, clawfoot or other specific deformities.

3.  A moderately severe right or left foot disability has not
been demonstrated.

4.  The veteran's PTSD has not caused or made chronically
worse his hypertension or heart disease.

CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 10
percent for a right foot disability have not been met.  38
U.S.C.A. �� 1155, 5102, 5103, 5103A, 5107 (West 2002);
(2002); 38 C.F.R. �� 3.159, 3.321, 4.1, 4.3, 4.7, 4.31, 4.40,
4.45, 4.59, 4.71a, Diagnostic Codes 5279, 5284 (2003).

2.  The criteria for an initial evaluation in excess of 10
percent for a left foot disability have not been met.  38
U.S.C.A. �� 1155, 5102, 5103, 5103A, 5107 (West 2002);
(2002); 38 C.F.R. �� 3.159, 3.321, 4.1, 4.3, 4.7, 4.31, 4.40,
4.45, 4.59, 4.71a, Diagnostic Codes 5279, 5284 (2003).

3.  No current hypertension is proximately due to, or the
result of, service-connected psychiatric disability.
38 U.S.C.A. �� 1110, 1131, 5102, 5103, 5103A, 5107 (West
2002); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.310 (2003).

4.  No current heart disease is proximately due to, or the
result of, service-connected psychiatric disability.
38 U.S.C.A. �� 1110, 1131, 5102, 5103, 5103A, 5107 (West
2002); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.310 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In adjudicating a claim, the Board determines whether (1) the
weight of the evidence supports the claim or, (2) whether the
weight of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence
against the claim.  The appellant prevails in either event.
However, if the weight of the evidence is against the
appellant's claim, the claim must be denied.  38 U.S.C.A.
� 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).

I.  Increased rating claims

The appellant contends that his right and left foot
disabilities are more severely disabling than the current
evaluations reflect.  He maintains that each foot condition
warrants an evaluation in excess of the currently assigned 10
percent rating.

Disability evaluations are determined by the application of
a schedule of ratings which is based upon an average
impairment of earning capacity.  38 U.S.C.A. � 1155;
38 C.F.R. � 4.1.  Separate diagnostic codes identify the
various disabilities.  Where there is a reasonable doubt as
to the degree of disability, such doubt will be resolved in
favor of the claimant.  38 C.F.R. �� 3.102, 4.3, 4.7.  In
addition, the Board will consider the potential application
of the various other provisions of 38 C.F.R., Parts 3 and 4,
whether or not they were raised by the appellant, as well as
the entire history of the veteran's disability in reaching
its decision, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).

Where there is a question as to which of two disability
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.

When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
location and symptomatology are closely analogous.  38 C.F.R.
� 4.20.

Except as otherwise provided in the rating schedule, all
disabilities, including those arising from a single entity,
are to be rated separately, and then all ratings are to be
combined pursuant to 38 C.F.R. � 4.25.  One exception to this
general rule, however, is the anti-pyramiding provision of
38 C.F.R. � 4.14, which states that evaluation of the "same
disability" or the "same manifestation" under various
diagnoses is to be avoided.  In Esteban v. Brown, 6 Vet. App.
259 (1994), the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (hereinafter Court) held that the
described conditions in that case warranted 10 percent
evaluations under three separate diagnostic codes, none of
which had a rating criterion the same as another.  The Court
held that the conditions were to be rated separately under
38 C.F.R. � 4.25, unless they constituted the "same
disability" or the "same manifestation" under 38 C.F.R.
� 4.14.  Esteban, at 261.  The critical element cited was
"that none of the symptomatology for any one of those three
conditions [was] duplicative of or overlapping with the
symptomatology of the other two conditions."  Id. at 262.

Under 38 C.F.R. � 4.40, functional loss may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant on motion.  The Board notes that
disability of the musculoskeletal system is the inability to
perform normal working movement with normal excursion,
strength, speed, coordination, and endurance, and that
weakness is as important as limitation of motion, and that a
part which becomes disabled on use must be regarded as
seriously disabled.  A little-used part of the
musculoskeletal system may be expected to show evidence of
disuse, through atrophy, for example.  38 C.F.R. � 4.40.

The provisions of 38 C.F.R. �� 4.45 and 4.59 also contemplate
inquiry into whether there is limitation of motion, weakness,
excess fatigability, incoordination, and impaired ability to
execute skilled movements smoothly, and pain on movement,
swelling, deformity, or atrophy of disuse.  Instability of
station, disturbance of locomotion, interference with
sitting, standing, and weight-bearing are also related
considerations.  The Court has held that diagnostic codes
predicated on limitation of motion require consideration of a
higher rating based on functional loss due to pain on use or
due to flare-ups.  38 C.F.R. �� 4.40, 4.45, 4.59; Johnson v.
Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App.
202, 206 (1995).

In the evaluation of service-connected disabilities, the
entire recorded history, including medical and industrial
history, is considered so that a report of a rating
examination, and the evidence as a whole, may yield a current
rating which accurately reflects all elements of disability,
including the effects on ordinary activity.  38 C.F.R.
�� 4.1, 4.2, 4.10, 4.41.  The most current evidence of the
present level of disability is found in the report from a VA
examination of the appellant's feet conducted in January
2003, and in VA outpatient treatment records dated between
January 1998 and August 2002, and in the various written
statements submitted by the appellant and his attorney.

The appellant underwent a VA foot examination in January
2003; he complained of forefoot pain that was 3-4 on a scale
of 10.  He reported that it had been a couple of years since
his feet had been extremely painful.  His current medication
included over-the-counter analgesics as needed.  The
appellant reported that the degree of his foot pain had
decreased dramatically when he changed his footwear to tennis
shoes in that he did not feel that he had specific flare-ups,
although overuse would precipitate increased severity of
symptoms.  The appellant stated that he did not feel that his
condition had had an adverse effect on his occupation since
he changed his footwear.  On physical examination, the
appellant demonstrated an antalgic gait.  The examiner noted
normal arch patterns, normal alignment of the Achilles
tendons and no appreciable instability in the ankle mortise.
There was a significant amount of callus formation at the
base of the great toes, as well as on the forefeet and about
the heels.  There were no specific plantar wart lesions.
There was a significant amount of tenderness to palpation of
both forefeet around the balls of the foot.  This was most
noticed with elevation of the metatarsal heads and manual
compression of the forefeet.  There was no evidence of
hammertoes, high arch clawfoot, or other specific
deformities.  Radiographic examination revealed bilateral
calcaneal enthesopathy as well as bilateral heel spurs and
osteophyte formation and mild joint space narrowing at the
right first metatarsophalangeal joint consistent with
degenerative joint disease.  The examiner rendered diagnoses
of episodes of metatarsalgia, both feet; episodes of plantar
warts, both feet; and calluses, both feet.

Review of the VA outpatient treatment records does not reveal
that the appellant either sought treatment for, or received
treatment for, any condition of either foot.  These records
are dated between 1998 and 2002.

First, the Board notes that the appellant appealed the
initial 10 percent rating that was assigned to each foot
disability when service connection was granted.  The Court
held, in Fenderson v. West, 12 Vet. App. 119 (1999), that
evidence to be considered in the appeal of an initial
assignment of a rating disability was not limited to that
reflecting the then current severity of the disorder.  Cf.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In that
decision, the Court also discussed the concept of the
"staging" of ratings, finding that, in cases where an
initially assigned disability evaluation has been disagreed
with, it was possible for a veteran to be awarded separate
percentage evaluations for separate periods based on the
facts found during the period in question.

In that regard, the Board notes that the 10 percent ratings
at issue in this case have been in effect since the grant of
service connection effective in June 2002.  The issues before
the Board then are taken to include whether there is any
basis for staged ratings at any pertinent time, to include
whether a higher rating currently is in order.

There are a number of Diagnostic Codes specifically
pertaining to the feet.  Diagnostic Code 5276, flatfoot,
acquired, provides that moderate symptoms with the weight-
bearing line over or medial to the great toe, inward bowing
of the tendo achillis, pain on manipulation and use of the
feet, bilateral or unilateral is to be rated at 10 percent.
Severe symptoms with objective evidence of marked deformity
(pronation, abduction, etc.), pain on manipulation and use
accentuated, indication of swelling on use, characteristic
callosities is to be rated at 20 percent for unilateral
involvement; bilateral involvement to this degree is to be
rated at 30 percent.  38 C.F.R. � 4.71a, Diagnostic Code
5276.

Acquired claw foot, with all toes tending to dorsiflexion,
limitation of dorsiflexion at ankle to right angle, shortened
plantar fascia, and marked tenderness under metatarsal heads
is entitled to a 30 percent evaluation for bilateral
involvement; a 20 percent evaluation is assigned for
unilateral involvement to this degree.  Acquired claw foot,
with great toe dorsiflexed, some limitation of dorsiflexion
at ankle, definite tenderness under metatarsal heads is
entitled to a 10 percent evaluation for bilateral or
unilateral involvement.  38 C.F.R. � 4.71a, Diagnostic Code
5278.

The appellant's right and left foot disabilities have each
been evaluated by the RO under Diagnostic Code 5284, which
provides that foot injuries are rated 10 percent disabling
when moderate, 20 percent when moderately severe, and 30
percent when severe.  A 40 percent rating may be assigned for
loss of use of the foot.  38 C.F.R. � 4.71a, Diagnostic Code
5284.

The clinical evidence of record does not show that the
appellant suffers from any specific foot deformity such as
hammertoes or high arch clawfoot.  There is no objective
evidence of marked deformity (pronation, abduction, etc.).
While there is some evidence of pain on manipulation and use,
along with callosities, there is no indication of swelling on
use or pain accentuated on manipulation and use, or
callosities characteristic of flatfoot.  Therefore, when
considering whether a higher rating may be assigned under
Diagnostic Code 5276 as analogous to a flatfoot disability, a
higher initial rating is not warranted.  Nor has the
appellant had all toes tending to dorsiflexion, limitation of
dorsiflexion at ankle to right angle, shortened plantar
fascia, and marked tenderness under metatarsal heads.
(Diagnostic Code 5278 requires that all of these symptoms be
shown for a 20 or 30 percent rating.)  Some significant
tenderness was shown but, as noted above, the veteran does
not experience the other symptoms necessary for the award of
a rating greater than 10 percent if rated by analogy to pes
cavus.  Additionally, for the reasons that follow, there is
no clinical evidence tending to show that the appellant has
the equivalent of a "moderately severe" foot injury or that
he has suffered the loss of use of either foot.  Diagnostic
Code 5284.

Disability such as that described in the VA examination
described above, most particularly the pain experienced by
the veteran that he has said rates a 3 or 4 on a scale of 1
to 10 (the veteran is not service connected for the
osteophyte formation, degenerative joint disease of the right
first metatarsophalangeal joint, or heel spurs), does not
amount to disability that warrants a characterization of
"moderately severe," as that term is used in Diagnostic
Code 5284.  The terms "moderate" and "moderately severe"
are not specifically defined by the regulation, but a review
of other rating criteria relating to disabilities closely
associated with the same anatomical area suggests that
"moderately severe" contemplates disability greater than
that experienced by the veteran.  The Board addressed other
foot rating criteria above, and found that a 20 percent
rating (the rating assigned for "moderately severe"
disability under Diagnostic Code 5284) under these other
criteria require symptoms not experienced by the veteran.
Even the criteria for metatarsalgia, which has been service
connected, and is meant to account for pain, do not provide
for a rating greater than 10 percent.  Diagnostic Code 5279.
The veteran's disability, which has been shown to cause
tenderness to palpation, whether due to the calluses,
metatarsalgia, or enthesopathy of the muscles or tendons,
does not rise to the 20 percent level of disability
contemplated by the various rating criteria pertaining to the
feet.  In other words, it is not the sort of disability
contemplated by the rating criteria for a 20 percent rating,
in this case under Diagnostic Code 5284.  Therefore, the
Board finds that the preponderance of the evidence is against
the veteran's claim for a higher initial rating for each
foot.

The Board notes that the General Counsel for VA, in a
precedent opinion dated August 14, 1998, (VAOPGCPREC 9-98)
held that if a disability rating was established under
Diagnostic Code 5284, the applicability of sections 4.40,
4.45, and 4.59 depend upon the manifestations compensated
under Diagnostic Code 5284.

Factors to consider are the degree of limitation of motion
that the appellant has and the degree of pain he has.  With
increasing levels of pain, concomitantly increasing degrees
of muscle spasm, weakness, atrophy, inability to function,
and the like, are expected.  38 C.F.R. �� 4.40, 4.45, 4.59.
In this case, chronic pain was reported; however, no muscle
atrophy or weakness has been demonstrated and there is no
clinical evidence of any muscle spasm.  Even when reporting
his symptoms, the veteran indicated that it had been a couple
of years since his feet were extremely painful.  Objective
medical evidence did show findings of tenderness in the area
of the balls of the feet and complaints of pain, but as noted
above the assigned initial rating of 10 percent reflects the
extent of the appellant's pain and the related functional
impairment that he experiences as a consequence of his
symptoms, including during prolonged walking and
weightbearing.  See DeLuca, 8 Vet. App. at 204-207; see also
38 C.F.R. �� 4.40, 4.45, 4.59.

Given that a 10 percent rating is warranted for "moderate"
disability, and because a higher rating is not warranted
unless there is "moderately severe" disability, the Board
finds that the appellant's problems with pain and tenderness
in each foot are best approximated by the 10 percent rating
assigned to each foot.  Diagnostic Code 5284.  The Board
finds, therefore, that a rating of 10 percent is warranted
for the demonstrated functional loss in the right foot and in
the left foot pursuant to Diagnostic Code 5284, as well as
38 C.F.R. �� 4.40, 4.45 and 4.59.  However, the Board can
find no basis under Diagnostic Code 5284, or any other
Diagnostic Code, to grant the appellant an evaluation in
excess of 10 percent for each foot disability.  Hence, the
evidence supports no more than a schedular rating of 10
percent for the right foot pathology and 10 percent for the
left foot pathology.  Additionally, there is no suggestion in
the record that these ratings are not accurate reflections of
the disability experienced by the veteran since the award of
service connection, June 24, 2002.  Fenderson, supra.

Notwithstanding the above discussion, a rating in excess of
that currently assigned for the disabilities at issue may be
granted when it is demonstrated that the particular
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.  See 38 C.F.R. � 3.321(b)(1).  Because the RO
considered the applicability of that regulatory provision
during the current appellate process, the Board has
jurisdiction to consider it in its deliberations.  See
VAOPGCPREC 6-96 (August 16, 1996).

The Board finds no evidence that the appellant's right or
left foot disability has presented such an unusual or
exceptional disability picture at any time so as to require
an extraschedular evaluation pursuant to the provisions of
38 C.F.R. � 3.321(b).  It is undisputed that the appellant's
symptoms could have an adverse effect on employment, but it
bears emphasis that the schedular rating criteria are
designed to take such factors into account.  Indeed, the
schedule is intended to compensate for average impairments in
earning capacity resulting from service-connected disability
in civil occupations.  38 U.S.C.A. � 1155.  "Generally, the
degrees of disability specified [in the rating schedule] 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.

The Board finds that the schedular 10 percent evaluations in
this case are not inadequate.  As discussed above, the
diagnostic codes provide for higher ratings for foot
disability, but the required manifestations have not been
shown in this case.  The Board further finds no evidence of
an exceptional disability picture in this case.  There is no
evidence of record to indicate that the appellant required
any hospitalization for either foot or that he required
frequent treatment.  During his January 2003 VA medical
examination, the appellant reported that the condition had
not had an adverse effect on his occupation since he changed
his footwear.  Moreover, there is no evidence of record that
would render impractical the application of the regular
schedular standards.  Consequently, the Board concludes that
further consideration of an extraschedular rating is not
warranted in this case.

Because this is an appeal from the initial ratings for the
right and left foot disabilities, the Board has considered
whether a "staged" rating is appropriate.  See Fenderson v.
West, 12 Vet. App. 119, 126 (1999).  In this instance, the
record does not show varying levels of disability since June
2002 and therefore does not support the assignment of a
staged rating for either foot.

For the foregoing reasons, the Board finds that the
preponderance of the evidence is against the appellant's two
initial rating claims.  Since the preponderance of the
evidence is against these two increased rating claims, the
benefit of the doubt doctrine does not apply.  Ortiz v.
Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

II.  Secondary service connection claims

The appellant contends that he currently suffers from
hypertension and heart disease that developed secondary to
his service-connected PTSD.  The appellant has reported that
he has suffered from hypertension and cardiovascular disease
for a few years.  A review of his service medical records
does not reveal any evidence of hypertension or
cardiovascular disease other than some elevated blood
pressure readings recorded during the appellant's service
entrance medical examination.  Review of the medical evidence
of record indicates that the appellant was first diagnosed
with hypertension sometime in 1997.  VA outpatient treatment
records indicate that the appellant demonstrated a blood
pressure reading of 138/80 during the VA Agent Orange
examination conducted in January 1996.  In June 1997, the
appellant reported a medical history that was without any
diagnosis of heart disease; at that time his blood pressure
reading was 158/92.  Subsequently, in July 1997, a clinical
assessment indicates "possible hypertension."  The
appellant suffered a myocardial infarction in July 2002.  A
Nebraska Heart Institute document dated in September 2002
indicates that the appellant had had high blood pressure for
five years.

In this case, the veteran has claimed that hypertension and
heart disease are secondary to his already service-connected
PTSD.  Service connection may be awarded for a disability
which is proximately due to or the result of a service-
connected disease or injury.  38 C.F.R. � 3.310; Allen v.
Brown, 7 Vet. App. 439 (1995) (the language of � 3.310
requires consideration of whether service-connected
disability has made the claimed disability chronically worse,
even if the service-connected disability did not cause the
claimed disability).  When service connection is established
for a secondary condition, the secondary condition shall be
considered a part of the original condition.  Id.

The appellant underwent a VA PTSD examination in August 2002.
The examiner thought it was interesting to note that there
"may well be some connection" between chronic depressive
disorders and worsening prognosis of post myocardial
infarction.

As noted above, private medical records indicate that the
appellant suffered a myocardial infarction in July 2002.  A
consultation report dated July 15, 2002, indicates that the
appellant's past medical history was significant for
hypertension.  He was noted to be a smoker.  The listed risk
factors for the appellant's heart disease were age, gender,
smoking and hypertension.  The review of systems indicated
that the appellant denied fatigue and that he denied a
history of mental illness or feelings of depression.  A
September 18, 2002 office visit report indicates that the
appellant's blood pressure was 154/92 and 154/88.  He
demonstrated appropriate mood and affect.  He denied chest
pain, shortness of breath, palpitations or significant leg
edema.  He reported walking approximately one-and-a-half
miles per day.  The private doctor indicated that the
appellant had a mildly depressed left ventricular systolic
function with injection fraction of 40-45 percent.  The
doctor also stated that the appellant was "getting along
well since his event and percutaneous transluminal coronary
angioplasty."

In March 2003, a VA doctor rendered an opinion concerning the
etiology of the appellant's hypertension and heart disease.
The doctor stated that the appellant's hypertension and heart
disease were not directly due to his psychiatric disability.
After reviewing the appellant's claims file, the doctor
stated that the evidence from the appellant's recent medical
examinations did not indicate that the disorders should be
service-connected secondary to PTSD.  The doctor noted that
the private medical records did not reference PTSD as
etiologically giving rise to any of the recorded abnormal
values.  The VA doctor reviewed the Comprehensive Psychiatric
Rating Scale (CPRS) and stated that there was no significant
documentation that etiologically linked the appellant's PTSD
to his heart disease or his elevated blood pressure.

As previously noted, secondary service connection may be
established when there is aggravation of a veteran's non-
service connected condition that is proximately due to or the
result of a service-connected condition.  Allen v. Brown, 7
Vet. App. 439, 448 (1995).  In those circumstances,
compensation is allowable for the degree of disability (but
only that degree) over and above the degree of disability
existing prior to the aggravation. Id. at 448.

The Board finds that the appellant has not suffered an
aggravation of his hypertension that is etiologically related
to, i.e., that it caused by, his service-connected
psychiatric disability.  It is particularly important to note
that the March 2003 examiner was specifically asked to
respond to this question of aggravation, as well as the
question of possible causation.  His response, presumably to
both questions, was that the hypertension and heart disease
should not be service connected on a secondary basis.  The
Board concludes, therefore, that the evidence does not
support the finding, in the sense that Allen represents, of a
nexus between the alleged aggravation of hypertension or
heart disease and the service-connected psychiatric
disability.  Likewise, the evidence does not support a
finding of any causal connection.

The possibility of a relationship between PTSD and a heart
condition was raised by additional material submitted by the
appellant; specifically an undated newspaper article that
quotes a scientist who has done research on the link between
PTSD and heart disease.  The Board notes that the Court has
held that generic medical literature which does not apply
medical principles regarding causation or etiology to the
facts of an individual case does not provide competent
evidence to establish the nexus element.  See Libertine v.
Brown, 9 Vet. App. 521, 523 (1996).  However, medical
treatise information may be regarded as competent evidence
where "standing alone, [it] discusses generic relationships
with a degree of certainty such that, under the facts of a
specific case, there is at least plausible causality based
upon objective facts rather than on an unsubstantiated lay
medical opinion."  Wallin v. West, 11 Vet. App. 509, 513
(1998).

The Board finds that the opinion reported in the newspaper
article would not appear to meet the standard set forth in
Wallin because it does not delve into an association between
the appellant's PTSD disability and his currently
demonstrated hypertension and heart disease.  The newspaper
article proffered by the appellant is not regarded as helpful
as it does not apply the specific facts to this specific
case.  Sacks v. West, 11 Vet. App. 314, 317 (1998).

Finally, the Board notes that the appellant has presented his
own statements regarding the development or aggravation of
his current hypertension and coronary artery disease being
etiologically related to his service-connected psychiatric
disability.  However, the record does not show that he is a
medical professional, with the training and expertise to
provide clinical findings regarding the nature and extent of
his hypertension or his coronary artery disease, or their
etiologic relationship to his service-connected psychiatric
disability.  Consequently, his statements are credible
concerning his subjective complaints and his history; but
they do not constitute competent medical evidence for the
purposes of showing the existence of aggravation or a nexus
between current hypertension or heart disease and his
service-connected psychiatric disability.  See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet.
App. 91 (1993).

Based on the totality of the evidence of record, including
the private treatment records and the reports of VA medical
treatment and examinations, the Board finds that the
preponderance of the evidence is against a finding of
secondary service connection for both the hypertension and
the heart disease.  The strongest medical evidence in support
of the appellant's claims comes from the August 2002 VA
psychiatric evaluation wherein the doctor stated that there
"may well be some connection" between the prognosis for
cardiovascular conditions and depressive disorders.  However,
this report does not contain any basis or explanation for
this opinion by the psychiatrist.  Furthermore, the Board
notes that the award of benefits may not be predicated on a
resort to speculation or remote possibility.  38 C.F.R.
� 3.102; see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992)
(a letter from a physician indicating that veteran's death
"may or may not" have been averted if medical personnel could
have effectively intubated the veteran held to be
speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993)
(physician's statement that the veteran may have been having
some symptoms of multiple sclerosis for many years prior to
the date of diagnosis deemed speculative).

In addition, nowhere in the medical records concerning the
treatment the appellant received from cardiologists,
including angioplasty and the placement of stents, is there
found any clinical notation suggesting that the appellant's
psychiatric disability was a risk factor or that the care and
management of his conditions had to be adjusted in any way
due to his psychiatric disability.  Indeed, it appears from
these records that the private doctors providing cardiac-
related care were unaware of the existence of any psychiatric
disability, much less one that had resulted in a 70 percent
evaluation beginning in June 2002, prior to the appellant's
heart attack.  Furthermore, these doctors cite other risk
factors in addition to hypertension for the development of
coronary artery disease in this particular patient, namely
age, gender, hyperlipidemia and cigarette smoking.

The Board concludes that the weight of the "negative"
objective evidence, principally in the form of clinical care
records demonstrating a lack of any clinical awareness of a
psychiatric disorder affecting treatment for hypertension and
a medical opinion of record concerning the relationship
between the service-connected psychiatric disability and the
claimed disorders, exceeds that of the "positive" evidence of
record, which is limited to a VA doctor's speculation about
the possibility of a relationship between depressive
disorders and cardiac prognosis, a newspaper article
unrelated to the specifics of the appellant's case, and the
appellant's contentions.

After consideration of the entire record and the relevant law
and cases, the Board finds that the appellant's hypertension
and heart disease are not related to the service-connected
PTSD in that the PTSD did not cause either the hypertension
or the heart disease or aggravate either.  While it is
apparent that the appellant does suffer from hypertension and
heart disease, the medical evidence of record as a whole
supports the conclusion that there is no relationship between
the origin and/or severity of those conditions and the PTSD
disability for which service connection has been granted.

Therefore, the preponderance of the evidence is against the
appellant's secondary service connection claim.  The Board
must accordingly conclude that the appellant's claim for
service connection for hypertension and heart disease as
secondary to his service connected PTSD must fail.

III.  Veterans Claims Assistance Act of 2000

The Board is aware that, in November 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA).  Among
other things, this law includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.  With few exceptions,
the regulations implementing this law are applicable to all
claims filed on or after the date of enactment, or filed
before the date of enactment and not yet final as of that
date.  VAOPGCPREC 7-2003.

The final rule implementing the VCAA was published on August
29, 2001.  66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001)
(codified as amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159
and 3.326(a)).

In this case, VA's duties have been fulfilled to the extent
possible.  VA must notify the veteran of evidence and
information necessary to substantiate his claims and inform
him whether he or VA bears the burden of producing or
obtaining that evidence or information.  38 U.S.C.A.
� 5103(a) (West 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29,
2001) (codified as amended at 38 C.F.R. � 3.159(b));
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The
appellant was notified of the information necessary to
substantiate his increased rating claims and his secondary
service connection claim.  The RO sent the appellant a
letter, in July 2002 (prior to the issuance of the rating
decisions at issue in January 2003 and February 2003), in
which he was informed of what the evidence had to show to
establish entitlement and what evidence VA still needed.
Thereafter, in letters sent to the appellant in August 2002,
and December 2002, the RO informed the appellant of what
information was still needed.  The appellant, on more than
one occasion, submitted authorization for VA's gathering of
medical information.  Therefore, VA has no outstanding duty
to inform the appellant that any additional information or
evidence is needed.

VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claims
for the benefits sought, unless no reasonable possibility
exists that such assistance would aid in substantiating the
claims.  38 U.S.C.A. � 5103A(a) (West 2002); 66 Fed. Reg.
45,620, 45,630-31 (Aug. 29, 2001) (codified as amended at
38 C.F.R. � 3.159(c), (d)).  Here, the appellant was afforded
VA medical examinations and his VA medical records have been
associated with the claims file.  Private medical records
have also been associated with the claims file.  The
appellant was informed about the provisions of the VCAA in
letters sent by the RO in July 2002, and August 2002.  The
appellant did not provide any information to VA concerning
treatment records that he wanted the RO to obtain for him
that were not obtained.  In June 2003, the appellant was
informed that he could submit additional evidence to the
Board; some more evidence was thereafter submitted.  The
appellant was given more than one year in which to submit
evidence after the RO gave him notification of his rights
under the VCAA.  See Veterans Benefits Act of 2003, Pub. L.
No. 108-183, � ___, 117 Stat. 2651, ___ (Dec. 16, 2003) (to
be codified at 38 U.S.C.� ____).  Therefore, there is no duty
to assist that was unmet.

After reviewing the record, the Board is satisfied that all
relevant facts with respect to the claims at issue in the
instant case have been properly developed.  Under the
circumstances of this case, a remand would serve no useful
purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit to flowing to the
veteran are to be avoided).

ORDER

An initial evaluation in excess of 10 percent for the right
foot disability or the left foot disability is denied.

Entitlement to secondary service connection for hypertension
or heart disease is denied.

	MARK F. HALSEY
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA
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CONTINUED

Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

VA
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series: legacy

judge_norm: RONALD R BOSCH

disposition: granted

condition: respiratory

disposition: remanded

text: This claim must be afforded expeditious treatment by the Veterans Benefits Administration (VBA (AMC). The law requires that all claims that are remanded by the Board or by the CAVC for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).

text:
Citation Nr: 0407000
Decision Date: 03/17/04    Archive Date: 03/30/04

DOCKET NO.  03-30 106	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky

THE ISSUES

1.  Entitlement to a higher initial rating for asthma,
currently evaluated as 30 percent disabling.

2.  Entitlement to an initial compensable rating for a minor
retropatellar crepitus, right knee.

3.  Entitlement to an initial compensable rating for left
knee retropatellar pain syndrome.

4.  Entitlement to service connection for a chronic acquired
low back disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Eric S. Leboff

INTRODUCTION

The veteran had active service from January 31, 1990 until
February 28, 1999.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) from a February 1999 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
Louisville, Kentucky.  The RO, in pertinent part, granted
entitlement to service connection for left and right knee
pain with assignment of noncompensable evaluations
respectively effective March 1, 1999.  The RO also denied
entitlement to service connection for a chronic acquired low
back disorder.

In September 1999 the veteran provided oral testimony before
a Hearing Officer at the RO, a transcript of which has been
associated with the claims file.

In June 2003 the RO denied entitlement to an evaluation in
excess of 30 percent for asthma.

In February 2004, the veteran offered testimony at a video
conference hearing with the RO before the undersigned
Veterans Law Judge.  Though there are other issues on appeal,
the testimony was limited to the issue of entitlement to an
increased rating for asthma.

As to the issues of entitlement to service connection for a
chronic acquired low back disorder and initial compensable
evaluations for bilateral knee disabilities, this appeal is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.  VA will notify you if further action is
required on your part.

FINDING OF FACT

Asthma is treated by a daily high dose regimen of
corticosteroids and immuno-suppressive medications,
administered orally.

CONCLUSION OF LAW

The schedular criteria for a 100 percent evaluation for
asthma have been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107
(West 2002); 38 C.F.R. �� 3.102, 3.159, 4.97, Diagnostic
Code 6602 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matter: Duties to Notify & to Assist

At the outset, it should be noted that on November 9, 2000,
the President signed into law the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(2000).

This law eliminates the concept of a well-grounded claim,
redefines the obligations of VA with respect to the duty to
assist, and supersedes the decision of the CAVC in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, 14 Vet. App. 174 (2000) (per curiam order), which had
held that VA cannot assist in the development of a claim that
is not well grounded.

This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA, or filed before
the date of enactment and not yet final as of that date.
VCAA, Pub. L. No. 106-475, �7(b), 114 Stat. 2096, 2099-2100
(2000), 38 U.S.C.A. � 5107 note (Effective and Applicability
Provisions).

On August 29, 2001, the final regulations implementing the
VCAA were published in the Federal Register.  The portion of
these regulations pertaining to the duty to notify and the
duty to assist are also effective as of the date of the
enactment of the VCAA, November 9, 2000.  66 Fed. Reg.
45,620, 45,630-32 (August 29, 2001) (to be codified at 38
C.F.R. � 3.159).

The Board, however, is satisfied that all necessary
development pertaining to the issue of entitlement to an
increased evaluation for asthma has been properly undertaken.

The Board is confident in this assessment because the
evidence as presently constituted is sufficient in
establishing a full grant of benefits.  Therefore, any
outstanding development not already conducted by VA is
without prejudice; hence, any deficiencies in the duties to
notify and to assist constitute harmless error.

Additional development by the Veterans Benefits
Administration Appeals Management Center (VBA AMC) would only
serve to further delay resolution of the claim.  Bernard,
supra.

Criteria

Disability Evaluations: General

Disability ratings are based, as far as practicable, on the
average impairment of earning capacity resulting from
disability. 38 U.S.C.A. � 1155 (West 2002).  The average
impairment as set forth in the VA Schedule for Rating
Disabilities, codified in 38 C.F.R. Part 4, includes
Diagnostic Codes which represent particular disabilities.
Generally, the degrees of disability specified are considered
adequate to compensate for considerable loss of working time
from exacerbation or illness proportionate to the severity of
the several grades of disability. 38 C.F.R. � 4.1 (2003).

In determining the disability evaluation, VA must acknowledge
and consider all regulations which are potentially applicable
based upon the assertions and issues raised in the record and
explain the reasons and bases used to support its conclusion.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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 (2003).

Factual Background

The veteran was examined by VA in December 1998.  He
presented with complaints of shortness of breath on exertion,
identified as climbing one flight of stairs.  He denied any
actual asthma attacks, emergency room evaluations or
incapacitating episodes.  He reported that resting and using
inhalers alleviated his symptomatology.  He also complained
of a cough accompanying his asthma.

Objectively, the veteran's lungs were clear to auscultation
with equal chest wall expansion.  There was no shortness of
breath and no wheezing.  Pulmonary function tests were noted
to be normal.  Such tests showed the following:

FVC-  81% predicted
FEV1- 85% predicted
FEV1/FVC- 83% actual

The diagnosis was a history of exercised-induced asthma.

VA outpatient treatment reports dated in 1999 reveal care for
asthma.  Treatment involved prescription of inhalers.

In September 1999, the veteran testified at a personal
hearing before the RO.  He stated that his asthma condition
exacerbated with exercise.  Otherwise, his asthma was well
controlled by a Vanceril inhaler.  He reported that he took 2
doses daily, at four puffs per dose.  It was noted that the
active ingredient in Vanceril is a corticosteroid.  Prior to
taking Vanceril, he had been treating his condition with
Azmacort.  It was pointed out that, according to the
Physician's Desk Reference, the Azmacort oral inhaler was
indicated only for patients requiring chronic treatment with
corticosteroids.  The veteran also used Albuterol.

A VA outpatient treatment report dated in October 2000 notes
a diagnosis of bronchial asthma.

The veteran was again examined by VA in January 2001.  At
that time, he was using Albuterol and Beclomethasone metered-
dose inhalers.  He smoked a half-pack of cigarettes daily.
He reported flares of asthma that were worse in cold weather,
on hot and humid days, and in springtime.  He had one episode
of severe chest tightness, shortness of air and dizziness in
the past summer on an ozone action day, when he was working
outdoors.  He went home to rest and used his metered-dose
inhalers, and his symptoms resolved.  He stated that he used
Albuterol prior to playing any sports.

He no longer ran, but he did still play some recreational
sports such as basketball.  He denied any wheezing problems.
He also denied any recent history of pneumonia, upper
respiratory infections, sinusitis or bronchitis.  He had
taken allergy medications in the past but discontinued them
because they caused drowsiness.  He stated that he had a
cough in cold weather, but he denied a chronic cough.  He had
no history of cardiovascular disease, chest trauma or other
pulmonary disease.

Objectively, the veteran's chest was clear to auscultation
bilaterally with equal chest wall expansion.  There was no
shortness of air, audible rales, wheezes or rhonchi.  There
was no wheezing with forced expiration.  Pulmonary function
testing was normal, yielding the following results:

FVC-  78% predicted
FEV1- 80.5% predicted
FEV1/FVC- 81% actual

The diagnoses were history of asthma and tobacco use.

In a VA outpatient treatment report dated in August 2001, it
was indicated that the veteran was physically active and that
he exercised at least 3 times per week.  He denied any
problems with regard to the activities of daily living.

A July 2002 VA outpatient treatment report notes bronchial
asthma.  The veteran did not voice any complaints at that
time.

In May 2003, the veteran submitted a copy of an April 2000
Board decision in which another veteran was granted a 100
percent evaluation for asthma.  He stated that his case
should be rated in like fashion.

The veteran was most recently examined by VA in June 2003.
His medications included Albuterol inhaler, 2 puffs as needed
and Aerobid, 4 puffs twice daily.  He reported that his
asthma had increased in severity.  It was triggered by
exercise and by cold weather.  He could walk a city block and
then started to have shortness of air.  He reported one
severe asthma attack per month.  He denied ever having gone
to an emergency room for such attacks.  He denied any periods
of incapacitation.  Pulmonary function testing results were
as follows:

FVC-  78.8% predicted
FEV1- 80.3% predicted
FEV1/FVC- 80% actual

Further objective findings included mild wheezing at the end
of expiration.  His breathing was non-labored.  The diagnosis
was asthma.

The claims file also contains information from the internet
on the subject of asthma.  One article, from Drug Digest,
indicated that Aerobid contained the active ingredient of
Flunisolide, a corticosteroid.  Other internet evidence
further corroborated that Flunisolide was a corticosteroid.

Finally, in February 2004, the veteran testified before the
undersigned in a video conference hearing.  At that time, he
stated that he had been using Beclomethasone for his asthma
and then had his prescription changed to Aerobid.  He pointed
out that another Board decision was of record and that the
veteran in that case, who was taking the same medications as
him (Albuterol and Beclomethasone), received a 100 percent
evaluation.  He testified that he inquired with the Food and
Drug Administration (FDA), who confirmed that both
Beclomethasone and Aerobid were corticosteroids and immuno-
suppressive medications.

Furthermore, he observed that, per FDA labeling, the maximum
daily dose of Aerobid should not exceed 2,000 micrograms (2
mg) daily.  Such a dosage would be considered a "high dose"
regimen.  The veteran was presently puffing 2,000 micrograms,
or the maximum dosage, each day.  In email correspondence,
the FDA (specifically, the Center for Drug Evaluation and
Research) stated that, while the term "parenteral"
typically was associated with injections, inhalation could be
considered parenteral, under the veteran's loose definition
of "pertaining to treatment other than through the digestive
system."  The veteran's communications with the Center for
Drug Evaluation and Research are associated with the claims
file.

Also at his February 2004 video conference hearing, the
veteran stated that he had not been hospitalized for his
asthma and that he had not been in need of emergency
inpatient care.  He stated that his asthma attacks occurred
at a frequency of 2 to 3 per week, varying with weather
conditions.  To alleviate such attacks, he would use his
Albuterol inhaler, which he referred to as his "rescue"
inhaler.  That inhaler was in addition to his regular
medication as described above.  He denied playing sports or
engaging in an exercise regimen.

He could drive and shop and, depending on the type of day, go
for walks.  He worked approximately 20 to 25 hours weekly as
a self-employed mechanic.  He stated that on several
occasions an asthma attack forced him to reschedule work for
his clients.

Analysis

The veteran is presently assigned a 30 percent disability
evaluation for asthma under Diagnostic Code 6602.  In order
to be entitled to the next-higher 60 percent rating, the
evidence must demonstrate FEV-1 of 40 to 55 percent of the
predicted value; or FEV-1/FVC of 40 to 55 percent of the
predicted value; 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.

A 100 percent rating for bronchial asthma is warranted for
FEV- 1 of less than 40 percent of the predicted value; or
FEV- 1/FVC less than 40 percent of the predicted value; or
more than one attack per week, with episodes of respiratory
failure; or when daily use of systemic (oral or parenteral)
high dose corticosteroids or immuno- suppressive medications
is required.  The regulations additionally require, in the
absence of clinical findings of asthma at the time of
examination, that a verified history of asthmatic attacks be
of record.  38 C.F.R. � 4.97, Part 4, Diagnostic Code 6602
(2003).

Here, the Board finds that the evidence of record supports a
100 percent disability evaluation for the entirety of the
claims period.  The basis for this determination is the
veteran's daily "high dose" use of corticosteroids and
immuno-suppressive medications, as confirmed in the email
communication from the Center for Drug Evaluation.  Moreover,
such medication is found to be administered orally, based on
a fair interpretation of that term.  Indeed, the word
"oral" is defined as "pertaining to the mouth, taken
through or applied in the mouth, as an oral medication or an
oral thermometer."  Dorland's Illustrated Medical Dictionary
1187 (28th ed. 1994).  The veteran's use of oral inhalers is
consistent with this definition, supporting the 100 percent
rating under Diagnostic Code 6602.
As previously noted, Diagnostic Code 6602 further requires
that, where the file lacks clinical findings of asthma at the
time of examination, a verified history of asthmatic attacks
must be of record.  In the present case, objective
examination yielded normal results.  However, it is important
to note that the veteran has been on a daily regimen of high
dose systemic medications throughout the duration of the
claims period.  Such course of treatment in itself confirms
the existence of his chronic asthma.  With that in mind, and
considering his consistent history of respiratory complaints
throughout the entire claims period, the Board finds that the
veteran's normal VA examination in June 2003 does not
preclude assignment of a 100 percent evaluation.  This
conclusion is consistent with the benefit of the doubt
doctrine.  See 38 U.S.C.A. � 5107; Gilbert v. Derwinski, 1
Vet. App. 49 (1990).

ORDER

Entitlement to a 100 percent rating for asthma is granted,
subject to the governing criteria applicable to the payment
of monetary benefits.

REMAND

This claim must be afforded expeditious treatment by the
Veterans Benefits Administration (VBA (AMC).  The law
requires that all claims that are remanded by the Board or by
the CAVC for additional development or other appropriate
action must be handled in an expeditious manner.  See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, � 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. ��
5109B, 7112).

The CAVC has held that section 5103(a), as amended by the
VCAA and � 3.159(b), as recently amended, require VA to
inform a claimant of which evidence VA will provide and which
evidence claimant is to provide, and remanding where VA
failed to do so.  See Quartuccio v. Principi, 16 Vet.
App. 183 (2002); see also 38 U.S.C.A. �� 5100, 5102, 5103,
5103A and 5107 (West 2002); 38 C.F.R. �� 3.102, 3.156(a),
3.159 and 3.26(a) (2003).

As to the issue of entitlement to initial compensable
evaluations for the veteran's bilateral knee disabilities,
the RO has not issued a VCAA letter compliant with the notice
requirements of Quartuccio, supra.

With respect to the veteran's claim of entitlement to service
connection for a back condition, the Board notes that a July
2002 VA outpatient treatment report revealed complaints of
back pain.  The diagnosis was back pain, and the examiner
ordered x-rays to rule out degenerative joint disease.
However, it does not appear that such x-rays were associated
with the claims file.  Since the VA treatment provider in
July 2002 suspected degenerative joint disease, the Board
finds that a VA examination of the spine would be useful in
the adjudication of this claim.  Additionally, there is no
contemporaneous examination of the service-connected
bilateral knee disabilities.

The Board observes that additional due process requirements
may be applicable as a result of the enactment of the VCAA
and its implementing regulations.  See 38 U.S.C.A. �� 5100,
5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg.
45,620 (Aug. 29, 2001) (38 C.F.R. �� 3.102, 3.156(a), 3.159,
and 3.326(a)).

Accordingly, this case is REMANDED to the VBA AMC for the
following actions:

1.  The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the VBA AMC or RO.  Kutscherousky v.
West, 12 Vet. App. 369 (1999).

2.  The VBA AMC must review the claims
file and ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. �� 5102,
5103, and 5103A (West 2002), Veterans
Benefits Act of 2003, Pub. L. 108-183
,� 701, 117 Stat. 2651, ___ (Dec. 16,
2003) (to be codified at 38 U.S.C.A.
� 5103), and any other applicable legal
precedent.

Such notice should specifically apprise
the appellant of the evidence and
information necessary to substantiate his
claims and inform him whether he or VA
bears the burden of producing or
obtaining that evidence or information,
and of the appropriate time limitation
within which to submit any evidence or
information.  38 U.S.C.A. � 5103(a) and
(b) (West 2002); Quartuccio v. Principi,
16 Vet. App. 183 (2002).

3.  The VBA AMC should contact the
veteran and request that he identify all
healthcare providers, VA and non-VA,
inpatient and outpatient, who have
treated him for his back disorders and
bilateral knee disabilities since
service.  He should be requested to
complete and return the appropriate
release forms so that VA can obtain any
identified evidence.  All identified
private treatment records should be
requested directly from the healthcare
providers.

Regardless of the veteran's response, the
VBA AMC should obtain all outstanding VA
treatment reports.
All information which is not duplicative
of evidence already received should be
associated with the claims file.

4.  If the VBA AMC is unable to obtain
any of the relevant records sought, it
shall notify the veteran that it has been
unable to obtain such records by
identifying the specific records not
obtained, explaining the efforts used to
obtain those records, and describing any
further action to be taken with respect
to the claim.  VCAA, Pub. L. No. 106-475,
� 3(a), 114 Stat. 2096, 2097-98 (2000)
(to be codified at 38 U.S.C.
� 5103A(b)(2)).
5.  The VBA AMC should arrange for a VA
special orthopedic examination of the
veteran by an orthopedic surgeon or other
available appropriate medical specialist
including on a fee basis if necessary for
the purpose of ascertaining the current
nature, extent of severity, and etiology
of any back disorder(s) which may be
present, and the current nature and
extent of severity of the service-
connected bilateral knee disabilities.

The claims file, copies of 38 C.F.R. �
4.124a, Diagnostic Code 8910 (2003),
copies of 38 C.F.R. �� 4.40, 4.45, 4.59
(2003), and a separate copy of this
remand must be made available to and
reviewed by the examiner prior and
pursuant to conduction and completion of
the examination(s).  The examiner must
annotate the examination report(s) that
the claims file was in fact made
available for review in conjunction with
the examination(s).  Any further
indicated special studies must be
conducted.

The examiner must address the following
medical issues:

As to examination of the spine:

Does the veteran have any chronic
acquired low back disorder(s), and if so,
is it at least as likely as not that any
such disorder(s) is/are related to
service on any basis, or if preexisting
service, was/were aggravated thereby?  As
to examination of the service-connected
minor retropatellar crepitus of the right
knee and the service-connected
retropatellar pain syndrome of the left
knee:

(a) Do the service-connected
retropatellar crepitus of the right knee
and the service-connected retropatellar
pain syndrome of the left knee involve
only the joint structure, or does it also
involve the muscles and nerves?

(b) Do the retropatellar crepitus of the
right knee and the service-connected
retropatellar pain syndrome of the left
knee cause weakened movement, excess
fatigability, and incoordination, and if
so, can the examiner comment on the
severity of these manifestations on the
ability of the appellant to perform
average employment in a civil occupation?
If the severity of these manifestations
cannot be quantified, the examiner should
so indicate.

(c) With respect to the subjective
complaints of pain, the examiner is
requested to specifically comment on
whether pain is visibly manifested on
movement of the joints, the presence and
degree of, or absence of, muscle atrophy
attributable to the service-connected
bilateral knee disabilities, the presence
or absence of changes in condition of the
skin indicative of disuse due to the
service-connected bilateral knee
disabilities, or the presence or absence
of any other objective manifestation that
would demonstrate disuse or functional
impairment due to pain attributable to
the service-connected bilateral knee
disabilities.

(d) The examiner is also requested to
comment upon whether or not there are any
other medical or other problems that have
an impact on the functional capacity
affected by the service-connected
bilateral knee disabilities, and if such
overlap exists, the degree to which the
nonservice-connected problem(s) creates
functional impairment that may be
dissociated from the impairment caused by
the service-connected bilateral knee
disabilities.  If the functional
impairment created by the nonservice-
connected problem(s) cannot be
dissociated, the examiner should so
indicate.

Any opinions expressed by the examiner
must be accompanied by a complete
rationale.

6.  Thereafter, the VBA AMC should review
the claims file to ensure that all of the
foregoing requested development has been
completed.  In particular, the VBA AMC
should review the requested examination
report(s) and required medical opinions
to ensure that they are responsive to and
in complete compliance with the
directives of this remand and if they are
not, the VBA AMC should implement
corrective procedures.

The Board errs as a matter of law when it
fails to ensure compliance, and further
remand will be mandated.  Stegall v.
West, 11 Vet. App. 268 (1998).

In addition, the VBA AMC must review the
claims file to ensure that any other
notification and development action
required by the VCAA, Pub. L. No. 106-475
is completed.

In particular, the VBA AMC should ensure
that the new notification requirements
and development procedures contained in
sections 3 and 4 of the Act (38 U.S.C.
�� 5102, 5103, 5103A and 5107) are fully
complied with and satisfied.

7.  After undertaking any further
development deemed essential in addition
to that specified above, the VBA AMC
should readjudicate the claims of
entitlement to service connection for a
chronic acquired low back disorder, and
initial compensable evaluations for the
service-connected bilateral knee
disabilities.

If the benefits requested on appeal are not granted to the
veteran's satisfaction, the VBA AMC should issue a
supplemental statement of the case (SSOC).  The SSOC must
contain notice of all relevant actions taken on the claims
for benefits, to include a summary of the evidence and
applicable law and regulations pertinent to the claims
currently on appeal.  A reasonable period of time for a
response should be afforded.  Thereafter, the case should be
returned to the Board for final appellate review, if in
order.  By this remand, the Board intimates no opinion as to
any final outcome warranted.  No action is required of the
veteran until he is notified by the VBA AMC; however, the
veteran is hereby notified that failure to report for any
scheduled VA examination(s) without good cause shown may
adversely affect the outcome of his claims for service
connection and initial compensable evaluations, and may
result in their denial.  38 C.F.R. � 3.655 (2003); Connolly
v. Derwinski, 1 Vet. App. 566 (1991).

______________________________________________
	RONALD R. BOSCH
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

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