Brown v. Brown

5 Vet. App. 413, 1993 U.S. Vet. App. LEXIS 347, 1993 WL 307075
United States Court of Appeals for Veterans Claims·Decided August 16, 1993·No. No. 92-325·Published·Cited by 60 cases

Opinion

STEINBERG, Judge:

The appellant, veteran Kevin A. Brown, appeals a November 13, 1991, Board of Veterans’ Appeals (BVA or Board) decision affirming a reduction, from 30% to 10%, in the veteran’s service-connected disability rating for asthma. Kevin A. Brown, BVA 91-36782 (Nov. 13,1991). After the parties had filed separate motions for summary disposition, the Court on October 30, 1992, denied those motions and ordered the parties to file briefs addressing, inter alia, the applicability of 38 C.F.R. § 3.344 (1992), regarding the criteria governing reductions in certain service-connected disability ratings. The parties subsequently filed briefs, and the Court heard oral argument on July 15, 1993. The appellant seeks reversal of the BVA decision and reinstatement of his previous 30% rating. The Secretary of Veterans Affairs (Secretary) urges affirmance of the BVA decision but conceded at oral argument that remand for readjudication may be appropriate in light of deficiencies in the Board’s statement of the reasons or bases for its decision. The Court will reverse the Board’s decision and remand the matter for reinstatement of the 30% rating.

I. Background

The veteran served on active duty from December 20, 1982, to February 27, 1986. R. at 2. In May 1986, a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) awarded the veteran service connection for asthma, rated at 10% disabling effective February [415]*41528, 1986. R. at 2. In that decision, the RO stated that the veteran had been diagnosed with asthma and started on medication in 1984 while on active duty, and that “his pattern of asthma is not suggestive of any particular event and usually with an inhaler or occasionally some tablets it is able to come under control”. R. at 2.

A February 1987 VA X ray showed “hy-perlucency of the lungs”, but that “the lung fields are unremarkable”. R. at 3. The report of a February 1987 VA special cardiopulmonary examination stated, under “history”, that the veteran’s asthma “was not improved”; that the veteran had wheezed at night intermittently (about once a week) in winter and consistently in summer; that he was taking several types of medication, including two different inhalers; that his wheezing attacks were “not as severe as before he came to Milwaukee” (the previous summer); that he was limited in making fast movement or running and did not play sports; that he would get tired from walking two blocks or climbing two flights of stairs; that he smoked half a pack of cigarettes a day; and that he had not missed any time from work in the last three months. R. at 7. On the report of the physical examination at that time, the VA examining physician found “no respiratory distress”, “no wheezing, rhonchi, or rales at both lungs”, and good air exchange, and diagnosed “bronchial asthma, allergies to inhalants, under treatment, periodically symptomatic”. R. at 8.

In an April 1987 decision, the VARO increased the veteran’s rating to 30%, retroactive to February 28, 1986. R. at 9-10. Based on the February 1987 VA cardiopulmonary examination, the RO concluded: “Considering the amount of medication necessary to control bronchial asthma and continuous outpatient treatment, [the] veteran’s service connected bronchial asthma warrants a 30% evaluation and is considered to be of this severity from the [date of the] original entitlement.” R. at 10.

A March 28, 1988, VA cardiopulmonary examination stated that the veteran reported having asthma attacks daily during the summer. The report of the physical examination at that time states: “Auscultation of the lungs reveals shortened expiratory phase and diminished intensity of breath sounds with a hyperresonant percussion note.” R. at 11. In an April 1988 decision, the RO denied a rating higher than 30% for the veteran’s asthma. R. at 13. A July 1990 VA X-ray report stated that the veteran’s lung fields were unremarkable. R. at 15. A July 23, 1990, VA cardiopulmonary examination stated that the veteran continued to use several medications and to suffer asthma attacks, which sometimes woke him up at night. R. at 18. On the report of the physical examination, the VA examining physician found: “The lungs are entirely clear to auscultation and percussion. There are no wheezes, rales, or rhonchi.” Ibid.

On July 31, 1990, the RO issued a decision proposing, pursuant to 38 C.F.R. § 3.105(e) (1992), to reduce the veteran’s asthma rating to 10%. R. at 21-22. The RO noted his complaints and the VA examiner’s July 1990 findings, and concluded:

Symptoms and findings related to service-connected bronchial asthma are shown as no more than mild with history of asthmatic type breathing, high[-]pitched expiratory wheezing and dyspnea, occurring several times a year with no clinical findings between attacks. Veteran’s asthma was essentially asymptomatic on most recent VA examination..

R. at 22. The RO informed the veteran that he had 60 days in which to submit evidence showing why the rating should not be reduced. The veteran in September 1990 wrote to the RO and requested a hearing. R. at 25. On October 19, 1990, he appeared at a personal hearing before the RO and testified under oath that he suffered from wheezing almost every day, sometimes waking him up at night; that he had taken about 300 hours of leave without pay due to his asthma in the prior year; that he had previously gone to the emergency room approximately four times due to asthma attacks, but had not been to the emergency room in the prior year; that he was then receiving outpatient treatment at a VA facility approximately once every six [416] months; that he was unable to engage in any physical activities; that he suffered shortness of breath after walking up only ten or twelve stairs; and that he used his medication every day. R. at 27-36.

The report of a December 3, 1990, VA special cardiopulmonary examination stated that the veteran reported having more trouble breathing during the previous couple of years; that he could walk six blocks (but sometimes less) without problem; that his asthma woke him up at night two or three times a week; and that he continued to take medication and smoke half a pack of cigarettes a day. R. at 38. Physical examination at that time revealed “no acute distress”; “clear breath sounds except minimum wheeze on forced expiration”; a pulmonary system that was normal to percussion; and pulmonary testing that was normal “other than a minimally elevated residual volume”. The diagnoses were “1. Probable mild asthma with some increased problems in the early AM” and “2. Smoker contributing to Problems in # 1”. R. at 39.

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Brown v. Brown, 5 Vet. App. 413, 1993 U.S. Vet. App. LEXIS 347, 1993 WL 307075 (Cal. 1993).

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