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Bva Pulmonary Hypertension Claim Award Problem . Others Please Chime In Here.


Capt.

Question

Hello All,

I have been studying BVA cases and after finding several that have awarded Pulmonary Hypertension as partial percentages increase , I am finding that these may be incorrect and are not following the 38 CFR 4.96 or 4.97 dealing with Respiratory Conditions and the M21 schedulars. After carefully reading the case , and going over the law there are some important decisions that were USURPED decision authority by the BVA and will bring them problems.

Please read the 38 CFR 4.97 and look at the diagnostic code given by this court at 6604. Here is where I see the regulations were violated. There is nothing mentioned about Pulmonary Hypertension until Diagnostic Code 6608 , COPD and the only way that a Pulmonary Hypertension rating can be given is if under Diagnostic code 6608 is that the Diagnosis by Heart Cath or Echo Cardiogram shows a diagnosis of PH. which will cause the rating officer or review officer to rate the COPD at 100 Percent. A Pulmonary Hypertension rating cannot be given or assigned unless you have a Heart Cath or Echo Cardiogram. You can further read down and see where the Diagnostic codes further down also warrant 100 percent but with the same criteria necessary. Either a Heart Cath or an EchoCardiogram showing a diagnosis of Pulmonary Hypertension is listed under the correct diagnostic code or it is not. If it is found there is no such ratings that are to be adjudicated by the BVA. It is automatically 100 percent. WHHOOOOPS.... Oh but read on and see the decision by BVA and how much they steered away from the law.

As in the courts findings here the increase was given for the wrong diagnostic code and PH was given in a percentage of 30-60 percent. Nowhere do the diagnostic codes or ratings allow this. Pulmonary Hypertension is a serious disease that is listed at 100 percent by the VA. There is not really anything listed on a lesser percentage award. It was done from the BVA and is erronous and it appears they just pulled this one flat out of the air or made it up as they went along. I highlighted the areas in red to concentrate on and hope others will chime in on this.

Now I am suppose to be rated under 6608 and 6845 and have a heart cath and echo gram showing conclusively that I have Pulmonary Hypertension. The way this BVA decision went down but lacks following any diagnostic code.......HUH.....they just do what they want to and may cleverly use this law they quoted in the decision. "Any change in a

diagnostic code by a VA adjudicator must be specifically

explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 ", This is an error on the VBA that should be appealed.

I am hoping some others will chime in on this. Now with my claim they did not award the heart cath or echo cardiogram findings for the diagnostic codes 6608(COPD) and 6845( restricted lung disease) with Pulmonary Hypertension TO BE RATED AT 100 PERCENT. It is on an appeal from RO. With this claim above ,the BVA just did what they wanted to. Neither diagnostic code applies to the Ashtma nor is there mention of Pulmonary Hypertension there under the codes for Asthma, So now we have them either ignoring one claim and then making up and falsefying another asthma claim with a faulty decision. I do not think I have interpreted this wrong. It appears straightforward. Oh yes ....I found another decision where they also did it again ...different soldier and different claim. Either the RO is not spotting the diagnostic codes or the BVA kinda hip shoots their decisions. Again our Veterans need to have to deal with these decisions but are sure opening themselves up later to some real problems.

I hope some of you can check this out and see what should be done but also to make the board here aware at how BVA comes up with this stuff and no wonder we have to appeal their decisions. It might even be wise to put this to the HVAC or the OIG. A Veteran does not need to go thru these types of decisions.

NEVER GIVE UP. God Bless, C.C.

Citation Nr: 0335712

Decision Date: 12/18/03 Archive Date: 12/24/03

DOCKET NO. 03-00 902 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Muskogee,

Oklahoma

THE ISSUE

Entitlement to an increased evaluation for service-connected

asthma with asymptomatic minimal pulmonary hypertension,

currently evaluated as 60 percent disabling.

REPRESENTATION

Veteran represented by: AMVETS

ATTORNEY FOR THE BOARD

Christopher P. Kissel, Counsel

INTRODUCTION

The veteran served on active duty from August 1981 to August

1985.

This case comes to the Board of Veterans' Appeals (the Board)

on appeal from a July 2002 rating decision of the Department

of Veterans Affairs (VA) Regional Office (RO) in Muskogee,

Oklahoma.

Issues on appeal

An issue previously on appeal, entitlement to service

connection for sinusitis/rhinitis, was withdrawn by the

veteran in writing in January 2003, following the RO's grant

of service connection. The veteran's withdrawal of the issue

was unnecessary in light of the grant of the benefit sought.

It is additionally noted that the veteran filed a claim of

entitlement to secondary service connection for pulmonary

hypertension in March 2001. Such claim was granted in a July

2002 RO rating decision; pulmonary hypertension, which was

characterized as "minimal" and "asymptomatic" in medical

reports, was included as part of the service-connected

asthma. The claim of entitlement to service connection for

pulmonary hypertension on a secondary basis has been granted

and the issue is therefore moot. However, the matter of a

separate disability rating for pulmonary hypertension will be

addressed in the Board's decision below.

It appears from a statement of the veteran's representative

in February 2003 that additional claims have been raised,

specifically entitlement to a total disability rating based

on individual unemployability due to service-connected

disabilities (TDIU) and entitlement to service connection for

a chronic heart disability.

Such claims have not been adjudicated by the RO and they are

therefore not within the Board's jurisdiction. In light of

the Board's grant of a 100 percent rating for asthma,

described below in this decision, the veteran and her

representative should contact the RO and inform that agency

whether she now wishes to purse any additional claims.

FINDING OF FACT

The veteran's service-connected asthma disability requires

daily use of high dose systemic corticosteroids.

CONCLUSION OF LAW

The criteria for a schedular rating of 100 percent for the

veteran's service-connected asthma have been met. 38

U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic

Code 6602 (2003).

REASONS AND BASES FOR FINDING AND CONCLUSION

In the interest of clarity, the Board will initially discuss

certain preliminary matters. The Board will then address the

pertinent law and regulations and their application to the

facts and evidence.

The Veterans Claims Assistance Act of 2000

The Board has given consideration to the provisions of the

Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,

114 Stat. 2096 (2000) (the VCAA) [codified as amended at 38

U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002)]. This

law eliminated the former statutory requirement that claims

be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991).

The VCAA includes an enhanced duty on the part of VA to

notify a claimant as to the information and evidence

necessary to substantiate a claim for VA benefits. The VCAA

also redefines the obligations of VA with respect to its

statutory duty to assist claimants in the development of

their claims. Regulations implementing the VCAA have been

enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and

3.326(a) (2003).

The VCAA is applicable to all claims filed on or after the

date of enactment, November 9, 2000, or filed before the date

of enactment but not yet final as of that date. In this

case, the veteran's appeal remains pending before the Board

and therefore, is not final. See 38 U.S.C.A. § 7104(a). The

provisions of the VCAA and the implementing regulations are,

accordingly, applicable. See Holliday v. Principi, 14 Vet.

App. 282-83 (2001) [the Board must make a determination as to

the applicability of the various provisions of the VCAA to a

particular claim].

The VCAA alters the legal landscape in three distinct ways:

standard of review, notice and duty to assist. The Board

will now address these concepts within the context of the

circumstances presented in this case.

Standard of review

The current standard of review for all claims is as follows.

Once all the evidence has been brought together, the Board

has the responsibility to evaluate the record on appeal. 38

U.S.C.A. § 7104 (West 2002). When there is an approximate

balance of the evidence regarding the merits of an issue

material to the determination of the matter, the benefit of

the doubt in resolving each issue shall be given to the

claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R.

§§ 3.102, 4.3 (2003). In Gilbert v. Derwinski, 1 Vet. App.

49, 53 (1990), the United States Court of Appeals for

Veterans Claims (the Court) stated that "a veteran need only

demonstrate that there is an 'approximate balance of positive

and negative evidence' in order to prevail." To deny a

claim on its merits, the evidence must preponderate against

the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996),

citing Gilbert, 1 Vet. App. at 54.

The Board will apply the current standard in adjudicating the

veteran's claim.

Notice

The VCAA requires VA to notify the claimant and the

claimant's representative, if any, of any information and any

medical or lay evidence not previously provided to the

Secretary that is necessary to substantiate the claim. As

part of the notice, VA is to specifically inform the claimant

and the claimant's representative, if any, of which portion,

if any, of the evidence is to be provided by the claimant and

which part, if any, VA will attempt to obtain on behalf of

the claimant. See 38 U.S.C.A. § 5103; see also Quartuccio v.

Principi, 16 Vet. App. 183 (2002) [a letter from VA to a

claimant describing evidence potentially helpful to claimant

but not mentioning who is responsible for obtaining such

evidence did not meet the standard erected by the VCAA].

The record shows that the RO furnished the veteran a letter

in March 2002 advising her of the provisions relating to the

VCAA, to include advising her that she could provide the

names, addresses, and approximate dates of treatment for all

VA and non-VA health care providers. She was informed as

well that she could provide VA authorization to obtain any

private medical records by completing the appropriate forms

(VA Form 21-4142), copies of which were enclosed with the

letter. The Board notes that, even though the letter

requested a response within 30 days, it also expressly

notified the veteran that she had one year to submit the

requested information and/or evidence, in compliance with

38 U.S.C.A. § 5103(b). The one-year period has now expired.

In Paralyzed Veterans of America, et. al. v. Secretary of

Department of Veterans Affairs, 345 F.3d 1334 (Fed. Cir.

2003) [the PVA case], the United States Court of Appeals for

the Federal Circuit (the Federal Circuit) held that 38 C.F.R.

§§ 3.159(b)(1) and 19.9(a)(2)(ii) are invalid to the extent

they provide a claimant "not less than 30 days" to respond

to a VCAA notification letter because the regulations are

contrary to 38 U.S.C.A. § 5103(b), which provides a claimant

one year to submit evidence. In this case, the March 2002

letter sent to the veteran improperly advised the veteran,

informing her that she had only 30 days to respond. However,

the letter also expressly notified her that she had one year

to submit the requested information and/or evidence, in

compliance with 38 U.S.C.A. § 5103(b). In addition, the

veteran has indicated on multiple occasions that she wants a

decision on her case based on the evidence of record. See

e.g. Statement in Support of Claim dated in September 2001,

Report of Contact dated in July 2002, and her statement

waiving the 60-day waiting period on her case dated in

February 2003. The Board is therefore satisfied that she was

notified properly of her statutory rights. See Wensch v.

Principi, 15 Vet. App. 362 (2001) [the VCAA does not apply

where there is extensive factual development in a case which

indicates no reasonable possibility that any further

assistance would aid the claimant in substantiating his

claim].

The Board notes further that the factual scenario in the PVA

case, which involved the RO sending a VCAA notification

letter, as in this case, is simply inapplicable to the

specific circumstances of this case. The Federal Circuit was

concerned with the "premature denial" of a claim before the

one-year period for submitting evidence had expired. In

other words, the Federal Circuit wanted to ensure that a

claimant had sufficient time to submit evidence before an

adjudication was made. Here, the veteran has had more than a

year to submit evidence in support of her claim, which was

filed in March 2001. It now appears that VA has all the

information needed to decide the case. It therefore appears

pointless to wait still longer to adjudicate this appeal when

it is clear that no additional evidence is forthcoming.

Also, the Federal Circuit's concern in the PVA case that a

claimant would be unaware of the time he had left to submit

evidence is inapplicable in the specific circumstances of

this case. The veteran in this case has been made aware on

numerous occasions, in response to the various

statement/supplemental statements of the case and the 90 day

notice of transfer of the claims file to the Board that she

had more time to submit evidence. Since this claimant has,

as a matter of fact, been provided at least one year to

submit evidence after the VCAA notification, and it is clear

that she has nothing further to submit, the adjudication of

her claim by the Board at this time will proceed.

The Board finds that the foregoing information provided to

the veteran satisfies the requirements of 38 U.S.C.A. § 5103

and Quartuccio in that the veteran was clearly notified of

the evidence necessary to substantiate her claim at issue on

appeal. Under these circumstances, the Board finds that the

notification requirement of the VCAA has been satisfied.

Duty to assist

In general, the VCAA provides that VA shall make reasonable

efforts to assist a claimant in obtaining evidence necessary

to substantiate a claim for VA benefits, unless no reasonable

possibility exists that such assistance would aid in

substantiating the claim. The law provides that the

assistance provided by VA shall include providing a medical

examination or obtaining a medical opinion when such an

examination or opinion is necessary to make a decision on the

claim. An examination is deemed "necessary" if the record

does not contain sufficient medical evidence for VA to make a

decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R.

§ 3.159.

The Board finds that reasonable efforts have been made to

assist the veteran in obtaining evidence necessary to

substantiate her claim, and that there is no reasonable

possibility that further assistance would aid in

substantiating her claim. The record shows that the veteran

has been afforded a VA compensation examination in connection

with this appeal, which will be described below. It further

appears all known and available service, private and VA

medical records have been obtained and are associated with

the veteran's claims folder. The veteran does not contend

that additional evidence that is pertinent exists and needs

to be obtained.

In short, the Board has carefully considered the provisions

of the VCAA in light of the record on appeal, and for the

reasons expressed above finds that the development of this

appeal has been consistent with the provisions of the new

law, considering the circumstances presented in this case.

The Board can identify no further development that would aid

the Board's inquiry. See Soyini v. Derwinski, 1 Vet. App.

540, 546 (1991).

In addition, the veteran has been accorded ample opportunity

to present evidence and argument in support of her claim.

She was informed of her right to a hearing and was presented

several options for presenting personal testimony.

See 38 C.F.R. § 3.103 (2003).

It is further noted by the Board that the veteran's

representative submitted additional medical evidence in

August 2003. Such evidence had not been previously

considered by the RO and was unaccompanied by waiver of RO

consideration. This evidence was received by the RO and

forwarded to the Board for appropriate consideration.

In Disabled American Veterans, et. al. v. Secretary of

Department of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.

2003) the Federal Circuit noted that 38 C.F.R. § 19(a)(2)

(2002) was inconsistent with 38 U.S.C.A. § 7104(a) (West

2002) because it denied appellants a "review on appeal"

when the Board considered additional evidence without

remanding the case to the RO for initial consideration.

However, in light of the Board's disposition of this claim,

which will result in a complete grant of the benefits sought,

the Board will proceed with a decision on this claim without

further administrative delay.

Pertinent law and regulations

Disability ratings - in general

Disability evaluations are determined by the application of a

schedule of ratings. 38 U.S.C.A. § 1155 (West 2002);

38 C.F.R. Part 4 (2003). The percentage ratings contained in

the Schedule represent, as far as can be practicably

determined, the average impairment in earning capacity

resulting from diseases and injuries incurred or aggravated

during military service and the residual conditions in civil

occupations. 38 C.F.R. §§ 3.321(a), 4.1 (2003). Separate

diagnostic codes identify the various disabilities.

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).

Specific schedular criteria - bronchial asthma

The veteran's service-connected asthma disability is

currently rated under 38 C.F.R. § 4.97, Diagnostic Code 6602,

which rates bronchial asthma based on results of pulmonary

function tests, the required treatment, and the frequency and

severity of asthmatic attacks.

As noted above, the veteran's asthma disability is presently

rated 60 percent disabling. A 60 percent evaluation under

Code 6602 is assigned where forced expiratory volume in one

second (FEV-1) is in the range from 40- to 55-percent of

predicted value, or; the ratio of FEV-1 to forced vital

capacity (FVC) is in the range from 40- through 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.

The next higher and maximum schedular rating, 100 percent,

may be assigned where the FEV-1 is less that 40 percent of

predicted value, or; the ratio of FEV-1 to FVC is less than

40 percent, or; if there are more than one asthma attack per

week with episodes of respiratory failure, or; if the

condition requires daily use of systemic (oral or parenteral)

high dose corticosteroids or immuno-suppressive medications.

Factual background

A request for an increased rating must be viewed in light of

the entire relevant medical history. See 38 C.F.R. § 4.1

(2001); Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). In

a case such as this, however, where entitlement to

compensation has already been established and an increase in

the disability rating is at issue, the present level of

disability is of primary concern. See Francisco v. Brown, 7

Vet. App. 55 (1994).

Historically, the record shows that in a rating decision

dated in June 1996, service connection for compensation

purposes was established for asthma and assigned a

30 percent rating under Diagnostic Code 6602. The veteran's

present claim was filed in March 2001, at which time it was

alleged that her condition included secondary pulmonary

hypertension.

The veteran was thereafter evaluated on VA respiratory

examination in April 2002, which diagnosed her with bronchial

asthma, stable; and minimal pulmonary hypertension,

asymptomatic, which the examiner felt based on a review of

the evidence in the claims file was caused by chronic

pulmonary disease and asthma. It also was noted on this exam

that the veteran was using an inhaler, alburterol (two puffs

as needed), as well as a nasal spray, flunisolide (two sprays

twice per day). [With respect to these inhalers/sprays, the

Board observes that the veteran subsequently submitted a

medical information sheet which indicated that the nasal

spray flunisolide is a synthetic (man-made) corticosteroid

and that the usual dosage for adults is two sprays in each

nostril twice per day, which could be increased to three

times per day; a second medical info sheet submitted by the

veteran indicated that the maximum dosage for flunisolide was

four puffs twice per day].

In addition, a pulmonary function test (PFT) was completed at

the time of the April 2002 examination; this PFT was

interpreted by the examiner as showing a normal spirometry

study with FVC of 71 percent and FEV-1 of 79 percent (ratio

of FEV-1 to FVC of 87). The chest X-rays also showed a

normal study.

In addition to the above, VA and private treatment reports

dated in November 2000 to March 2001 time frame showed

ongoing medical management of her asthma condition, and these

records also showed continued treatment with the alburterol

inhaler and flunisolide nasal spray in the dosage indicated

on the April 2002 VA exam.

Also of record is a VA physician's summary report dated in

January 2001, prepared following an evaluation conducted in

December 2000, which indicated that the veteran's asthma was

moderate in severity and was being treated adequately.

A follow-up report dated in March 2001 indicated that her

asthma symptoms had improved even without use of medications.

Based on the above evidence, the RO denied entitlement to an

increased rating (above 30 percent) by rating decision in

July 2002. The veteran subsequently perfected an appeal to

the Board.

During the pendency of this appeal, additional VA treatment

records were added to the file. These records, dated through

January 2003, denoted in several reports that other treatment

regimens for asthma would be maximized. Specifically, a

report dated in September 2002 indicated that following

consultation with an allergist and implementation of a plan

to limit her exposure to known allergens, she continued to

have problems with asthma and accordingly, she was instructed

to increase her use of the inhaled corticosteroid, AeroBid

[trade name for flunisolide] to two puffs twice per day.

Subsequently, these reports indicated that she started using

an oral pill form of flunisolide in November 2002 in addition

to the nasal spray form of this medication, and that she

suffered asthmatic attacks in December 2002 and January 2003.

These reports also detailed responses to her email inquires

to her primary care VA physician, who instructed her in

December 2002 to increase her use of the inhaled flunisolide

to 4 puffs per day.

Based on these reports, a RO Decision Review Officer

increased her disability rating to 60 percent by rating

decision in January 2003 on the basis of monthly visits to

physician for required care of exacerbations of asthma.

Thereafter, the record shows that the veteran's primary care

VA physician advised her in an email dated January 29, 2003

that 4 puffs of the nasal spray flunisolide twice per day

represented the maximum dose of this medication. This same

physician also prepared a statement on January 17, 2003

indicating that the veteran would benefit from not being

exposed to low humidity environments and that she would

benefit from use of a nebulizer [device used to reduce liquid

medication to extremely fine mist, useful for delivering

medication to deeper parts of respiratory system] at home and

at work to prevent further exacerbations of her asthma.

Additional records associated with the file showed that the

veteran was taking the maximum dose of the inhaled spray-form

of flunisolide [4 puffs two times a day] by medication list

reports dated January 17, 2003, March 13, 2003 and June 14,

2003; a previously-dated report of January 4, 2003 indicated

that her dosage on that date was only 2 puffs two times a

day.

Analysis

Assignment of diagnostic code

The assignment of a particular diagnostic code is

"completely dependent on the facts of a particular case."

See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One

diagnostic code may be more appropriate than another based on

such factors as an individual's relevant medical history, the

diagnosis and demonstrated symptomatology. Any change in a

diagnostic code by a VA adjudicator must be specifically

explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629

(1992).

In this case, the Board finds that 38 C.F.R. § 4.97,

Diagnostic Code 6602 [bronchial asthma] is the most

appropriate rating criteria under which to evaluate the

veteran's asthma, based on the relevant history, diagnosis

and current symptomatology. The Board has not identified any

more appropriate diagnostic code, and the veteran has

suggested none.

Increased rating consideration

The Board has carefully reviewed the evidence of record. For

reasons explained immediately below, and resolving doubt in

the veteran's favor, the Board finds that the evidence

supports a 100 percent disability rating.

The Board emphasizes that the schedular criteria under

Diagnostic Code 6602 are set forth in the alternative, as

demonstrated by the use of "or" in the language followed by

a semicolon, such that satisfaction of one criterion for the

higher rating is sufficient. Cf. Johnson v. Brown, 7 Vet.

App. 95, 97 (1994).

In the present case, the Board finds that, with resolution of

the benefit of the doubt in the veteran's favor, the evidence

supports a grant of a total schedular rating

[100 percent] for the veteran's service-connected asthma.

The recent medical evidence discussed above confirms that the

veteran is now taking the maximum dosage of the

corticosteroid flunisolide on a daily basis. Although the

evidence of record does not establish that she meets each and

every requirement for 100 percent disability rating under

Diagnostic Code 6602, she does meet one of them, daily use of

systemic (oral or parenteral) high dose corticosteroids.

Because the schedular criteria are set forth in the

disjunctive rather than conjunctive, meeting one requirement

is sufficient basis to award the higher rating. See Johnson,

supra.

The Board observes that the RO indicated in its supplemental

statement of the case dated in February 2003 that there was

no evidence showing that the veteran was using a high-dose

corticosteroid. This assertion appears to have been refuted

by a January 2003 email from the veteran's primary care VA

physician as well as the medical information sheet submitted

by the veteran showing that the maximum dosage for the nasal

spray form of flunisolide was 4 puffs twice per day, which is

the veteran's current dosage.

The Board observes further that the evidence shows an

increase in the veteran's asthma symptoms, as demonstrated by

December 2002 and January 2003 exacerbations of her condition

which required medical treatment and evidently led to the

increase her medications and specifically to the use of both

an oral and nasal spray form of the corticosteroid

flunisolide. The recent evidence also shows that she

suffered recent asthma attacks despite her avoidance of known

allergens following a consultation with an allergist, and

that she has been advised to use a nebulizer at home and at

work to help her condition.

Hence, although her PFT test scores and frequency of

asthmatic attacks does not equate to the criteria for the 100

percent rating, the veteran does meet the criteria for such a

rating based on the current medication regimen, namely high-

dose daily use of corticosteroids. As stated above, this is

an independent basis to grant the 100 percent total schedular

rating. The Board therefore finds that the veteran meets the

schedular criteria for the 100 percent rating under

Diagnostic Code 6602. Accordingly, an increased (100

percent) schedular rating is warranted.

Esteban considerations

Except as otherwise provided in the rating schedule, all

disabilities, including those arising from a single disease

entity, are to be rated separately, unless the conditions

constitute the same disability or the same manifestation.

See 38 C.F.R. 4.25 (2003); see also Esteban v. Brown, 6 Vet.

App. 259 (1994).

As noted in the Introduction, the veteran's service-connected

asthma includes asymptomatic minimal pulmonary hypertension.

The Board has therefore given thought as to whether the

hypertension should be rated separately.

A careful review of the medical evidence of record supports

the RO's conclusion that the veteran's pulmonary hypertension

is minimal and asymptomatic. As an example, the report of a

December 2000 pulmonary consult included the examiner's note

that testing had revealed "minimal pulmonary hypertension".

No symptoms were recorded. This is consistent with the other

medical evidence of record.

It is clear from the medical evidence that to the extent that

pulmonary hypertension

exists as part of the veteran's service-connected asthma, it

is asymptomatic. Even if a separate rating were to be

assigned, it would be noncompensable. Particularly in light

of the 100 percent disability rating now assigned by the

Board, assigning a separate rating for the asymptomatic

pulmonary hypertension would be an unproductive exercise, and

the Board declines to do so.

Conclusion

In short, for the reasons and bases expressed above the

Board believes that a 100 percent disability rating may be

assigned for the veteran's service-connected asthma with

asymptomatic minimal pulmonary hypertension.

ORDER

A 100 percent disability rating is granted for the veteran's

service-connected asthma with asymptomatic minimal pulmonary

hypertension, subject to the law and regulations governing

the award of monetary benefits.

Edited by Capt.Contaminate (see edit history)
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