Citation Nr: 1312407 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 06-15 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bronchitis for the period prior to January 13, 2009. 2. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain for the period prior to January 27, 2006. 3. Entitlement to an initial rating in excess of 40 percent for lumbosacral strain for the period from January 27, 2006 to the present. 4. Entitlement to an initial rating in excess of 20 percent for residuals of a right ankle sprain. 5. Entitlement to an initial rating in excess of 30 percent for gastroesophageal reflux disease (GERD). 6. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period between May 9, 2002 and April 5, 2005. 7. Entitlement to TDIU for the period prior to May 9, 2002. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran had a period of honorable service in the United States Army from January 1975 to July 1980. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a February 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that rating decision, the RO granted service connection for the disabilities currently on appeal. The Veteran disagreed with the assigned initial ratings, and perfected an appeal as to each issue. During the pendency of the appeal, the RO awarded higher initial and staged ratings for the Veteran's lumbosacral strain and right ankle sprain residuals. Because the Veteran has not been granted the maximum benefit allowed for either disability, he is presumed to be seeking higher ratings. Thus, the claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). With respect to the initial rating claim for chronic bronchitis, the RO did in fact grant a maximum 100 percent schedular rating effective January 13, 2009. The appeal before the Board relating to bronchitis is therefore limited to the rating of this condition prior to January 13, 2009. The Veteran testified at a Travel Board hearing which was chaired by the undersigned at the Waco RO in July 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Court of Appeals for Veterans Claims (the Court) has held that a claim for TDIU is part of an increased rating claim when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of this appeal, the Veteran filed an application for TDIU [VA Form 21-8940] in April 2005 asserting that his service-connected back and ankle disabilities [as well has his left shoulder disability] have prevented him from securing or following a substantially gainful occupation. Subsequently, at his July 2010 hearing, the Veteran again raised the issue of TDIU, arguing that he had to stop working in 2002 at least in part due to his back pain. See the July 2010 Hearing Transcript [Tr.], at 11-12. Although the RO has already awarded the Veteran TDIU effective the date of his April 6, 2005 claim, based on the Court's holding in Rice, the Board finds that the question of whether an increased rating may be warranted based on entitlement to TDIU prior to April 6, 2005 is part of the Veteran's appeal for higher initial ratings for his service-connected lumbosacral strain and his service-connected right ankle sprain residuals, and must be considered herein. As will be discussed below, the Board is granting TDIU as of the effective date of the Veteran's lumbosacral strain service-connection award, May 9, 2002. However, because the Board is not reaching the merits of the Veteran's right ankle initial rating claim in this decision, the question of whether a TDIU award may be granted any time prior to May 9, 2002, to include on the date the RO made his right ankle service-connection award effective [September 4, 2001], must be deferred. For the sake of clarity, the Board has separately captioned these issues on the title page. The Board remanded the Veteran's appeal in July 2011 for additional procedural and evidentiary development. After such was achieved, the Appeals Management Center (AMC) readjudicated the appeal in a September 2012 Supplemental Statement of the Case (SSOC). The Veteran's claims file has been returned to the Board for further appellate review. The Veteran's initial rating claims for service-connected GERD, residuals of a right ankle sprain, and a lumbosacral strain for the period from January 26, 2006 to the present day, as well as his reasonably raised claim of entitlement to TDIU prior to May 9, 2002 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period from September 4, 2001 to January 26, 2006, the Veteran's bronchitis was manifested by a forced expiratory volume in one second (FEV-1) of 72 percent predicted, post-bronchodilator; by a ratio of forced expiratory volume in one second to forced vital capacity (FEV-1/FVC) of 79 percent, post-bronchodilator; and diffusion capacity of the lung for carbon monoxide by a single breath method (DLCO (SB)) of 79 percent predicted. 2. For the period from January 27, 2006 to December 16, 2008, the Veteran's bronchitis was manifested by a DLCO (SB) value of 48 percent predicted. 3. For the period from December 17, 2008 to the end of the period under review, January 12, 2009, the Veteran's bronchitis was manifested by a DLCO (SB) value of 38 percent predicted. 4. For the period from May 9, 2002 to January 26, 2006, the Veteran's lumbosacral strain was manifested by pain and limitation of motion that was moderate in degree. 5. The evidence does not show that the Veteran's bronchitis and lumbosacral strain were so exceptional or unusual during the time periods under review that referral for extraschedular consideration by designated authority is required. 6. For the time period between May 9, 2002 and April 5, 2005, the Veteran's service-connected lumbosacral strain, in combination with his other service-connected disabilities, prevented him from engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. For the period from September 4, 2001 to January 26, 2006, the criteria for an initial evaluation higher than 10 percent for bronchitis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6600 (2012). 2. For the period from January 27, 2006 to December 16, 2008, the criteria for an initial evaluation of 60 percent for bronchitis are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6600 (2012). 3. For the period from December 17, 2008 to January 12, 2009, the criteria for an initial evaluation of 100 percent for bronchitis are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6600 (2012). 4. For the period from May 9, 2002 to January 26, 2006, the criteria for an initial evaluation of 20 percent for the Veteran's lumbosacral strain are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 5. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). 6. The criteria for entitlement to TDIU for the period between May 9, 2002 and April 5, 2005 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012); Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Stegall concerns As noted above, the Board remanded the Veteran's appeal in July 2011 for additional evidentiary development. In pertinent part, with respect to the issues being decided herein, the Board instructed the agency of original jurisdiction (AOJ) to (1) obtain the Veteran's records from his claim for disability benefits with the Social Security Administration (SSA); (2) schedule the Veteran for an updated VA examination to assess the severity of his lumbosacral strain; and (3) readjudicate the appeal. The Board further instructed that if the AOJ denies any issue, it should provide the Veteran an SSOC that includes specific notice of the schedular criteria listed under former Diagnostic Code 5295. In compliance with the Board's remand instructions, the AOJ obtained the Veteran's SSA records and has associated them with the claims file. The AOJ also scheduled, and the Veteran appeared for his VA spine examination in October 2011, and the corresponding examination report has also been associated with the claims file. As noted above, the AMC subsequently readjudicated the issues on appeal in a September 2012 SSOC, which did in fact include notice of the schedular criteria listed under former Diagnostic Code 5295. Thus, there is compliance with the Board's remand instructions as they pertained to the issues the Board will decide below-namely, entitlement to an initial rating greater than 10 percent for bronchitis prior to January 13, 2009; entitlement to an initial rating greater than 10 percent for a lumbosacral strain prior to January 27, 2006, and entitlement to TDIU between May 9, 2002 to April 5, 2005. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board acknowledges that it also instructed the AOJ in July 2011 to obtain the Veteran's updated VA treatment records from the Dallas VA Medical Center (VAMC) dating from November 2008 to the present. This instruction was based in large part on the Veteran's own testimony indicating that he received treatment for his disabilities within six months prior to the July 2010 hearing, and had scheduled another check-up with his primary care physician at VA for the month following this hearing. See the July 2010 Hearing Tr., at 21, 24. Review of both the Veteran's physical claims file and his electronic claims file, as maintained by the Virtual VA system, fails to show that the AOJ obtained VA treatment records dating from November 2008 to December 2010. Rather, it appears that the AOJ only obtained records dating from December 2010 to August 2011, offering no explanation as to why prior records were not requested or were otherwise unavailable. The Board wishes to make clear that VA treatment records dated through April 2009 are already of record. Therefore, any failure to obtain additional copies of such records dating from November 2008 to April 2009 is of no legal consequence. Because the Veteran's initial rating claim for bronchitis only pertains to the period prior to January 13, 2009, no additional VA treatment records dated subsequently would be relevant to the appeal because they would only include current assessments of the Veteran's disability picture. They would not inform as to the severity of the disability as it existed during the prior time period under review. In the same vein, although these missing VA records would indeed be relevant to the question of whether a higher initial rating is warranted for the Veteran's lumbosacral strain from January 2006 to the present day, for the same reason discussed above, they would again be of no relevance to the question of whether a higher initial rating is warranted prior to January 2006, to include on the basis of entitlement to TDIU. Thus, while a clear Stegall violation exists, thus requiring an additional remand of several of the issues on appeal, such noncompliance with the Board's prior remand instructions is not a roadblock to the Board's adjudication of the issues noted immediately above. See 38 C.F.R. § 3.159(c)(2) (2012) (VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency) (emphasis added by the Board). II. Duties to Notify and Assist The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require 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. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). With respect to the Veteran's bronchitis and lumbar spine claims, the Board notes that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8-2003 (December 22, 2003). As such, because service connection for the Veteran's bronchitis and lumbosacral strain has already been granted, VA's VCAA notice obligations with respect to the issues of entitlement to higher initial evaluations for such disabilities are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (noting that where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Because the question of whether the Veteran's lumbosacral strain (in and of itself, or in combination with other service-connected disabilities) is so severe as to render him unable to secure or follow a substantially gainful occupation is part and parcel of the Veteran's initial rating claim for his lumbosacral strain under Rice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to this matter as well. In any event, VA informed the Veteran of the evidentiary requirements necessary to establish entitlement to TDIU in an April 27, 2005 letter. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, post-service VA treatment records, his SSA records, and his own lay statements and testimony have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate the claims addressed herein. As discussed above, while it is clear that some VA treatment records dated subsequent to April 2009 remain outstanding, such records would not be relevant to the Veteran's claims for higher initial ratings during stages with ending dates prior to April 2009. Indeed, the Veteran's claims file appears to have ample and complete medical evidence dated up to and including April 2009, such that the Board can make informed decisions on the merits of the Veteran's claims. With respect to the VA examinations conducted in conjunction with this appeal, and relevant to the time periods at issue, the Board observes that the findings contained therein are adequate for adjudication of the Veteran's claims. The Veteran appeared for VA orthopedic examinations that included evaluation of his spine in May 2002, September 2003, July 2005 and January 2006. VA also evaluated the Veteran's bronchitis in September 2003, January 2006 and January 2009, with pulmonary function tests administered in May 2003, and January 2006 and December 2008. The respective examination reports reflect that each examiner was aware of the Veteran's pertinent medical history, recorded the Veteran's current complaints, conducted appropriate examinations, and rendered appropriate findings and diagnoses consistent with the other evidence of record. Although neither the May 2002 nor the September 2003 examiner appeared to perform repetitive use testing for the Veteran's spine, they each acknowledged the Veteran's complaints of pain, and the September 2003 VA examiner did in fact specify that the Veteran can forward flex to 60 degrees pain free, and to 75 degrees with pain. The RO indeed awarded the Veteran's initial rating of 10 percent for his service-connected lumbosacral strain based on the Veteran's complaints of pain on motion. See the RO's September 2012 rating decision, at 3. Neither the Veteran nor his representative has challenged the adequacy of any of these examinations. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The undersigned set forth the issues to be discussed at the hearing and sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims. His questions elicited testimony specific to the nature and severity of the Veteran's bronchitis and lumbosacral strain, to include what effects such disabilities may have had on his employment. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that the Board can adjudicate the claims based on the current record. 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 the Veteran's claims has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issues on appeal were nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2012). III. Increased initial rating claim for bronchitis for the time period prior to January 13, 2009 Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2012). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran's bronchitis is rated 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6600 [chronic bronchitis] (2012) from the effective date of service connection, September 4, 2001, to January 13, 2009, at which point a 100 percent schedular rating took effect. Diagnostic Code 6600 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the diagnosed disability in the Veteran's case. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code be used. The Board does observe however, that during the course of the appeal period, the Veteran has also been diagnosed with chronic obstructive pulmonary disease (COPD), sleep apnea and respiratory papillomas. The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, with respect to COPD, the January 2009 VA examiner determined in a June 2009 report that the Veteran's COPD is "due to progression of chronic bronchitis in most cases and that is the case in this situation." See the January 2009 VA examiner's June 2009 report, at 2. In light of the fact that the Veteran's COPD has been medically linked to his bronchitis, to the extent that the Veteran's COPD and bronchitis symptoms [which include shortness of breath, congestion, cough and productive sputum (see the January 2009 VA examiner's report, at 2)] overlap, the Board will resolve all doubt in the Veteran's favor, and consider these symptoms to be related solely to his service-connected bronchitis in the adjudication of this claim. In any event, the schedular criteria for COPD under Diagnostic Code 6604 is identical to that for chronic bronchitis under Diagnostic Code 6600. With respect to the Veteran's sleep apnea and respiratory papillomas, the medical evidence of record adequately distinguishes the symptoms associated with these disabilities from those associated with the Veteran's bronchitis. Indeed, the Veteran's sleep apnea has been shown to manifest in symptoms of snoring, apneas, nocturia, dry mouth, choking, excess nocturnal awakenings, difficulty initiating sleep, sleep paralysis, unrefreshed sleep, an inability to concentrate, and a need for a CPAP machine. His respiratory papillomas are manifested by lesions of the nostrils, tonsils, throat and vocal chords requiring removal through surgery. See the Veteran's December 5, 2003 and July 3, 2003 VA Progress Notes respectively. Because such symptomatology has been medically attributed to respiratory conditions other than service-connected bronchitis, they will not be considered when rating the Veteran's service-connected disability below. The Veteran has not been diagnosed with asthma, emphysema or tuberculosis, nor has he been assessed as having pulmonary vascular disease, bacterial infections of the lung, interstitial lung disease, mycotic lung disease or restrictive lung disease with chronic pleural effusions or fibrosis. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 6600 for bronchitis. VA amended the rating schedule concerning respiratory conditions, effective October 6, 2006. VA added provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96 , titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845" has seven provisions relating to the use of PFTs. Although these new provisions are applicable only to applications for benefits received by VA on or after October 6, 2006, the regulatory changes pertinent to this claim were not substantive in nature, and merely interpret already existing law. 38 C.F.R. § 4.96 (2012); see also Final Rule 71 Fed.Reg. 52459 (Sept. 6, 2006), and Proposed Rule 67 Fed.Reg. 54394 (Aug. 22, 2002) (indicating that the "intended effect of this amendment is to clarify the use of the current criteria for evaluating respiratory and cardiovascular conditions . . . ."). As a result, the fact the Veteran's initial rating claim was pending at the time of the changes in the criteria does not impact his appeal. Under the applicable rating criteria, when FEV-1 is 71- to 80-percent predicted, or; when FEV-1/FVC is 71 to 80 percent, or; when DLCO (SB) is 66- to 80-percent predicted, a 10 percent rating is assigned. 38 C.F.R. § 4.97, Diagnostic Code 6600 (2012). When FEV-1 is 56- to 70-percent predicted, or; when FEV-1/FVC is 56 to 70 percent, or; when DLCO (SB) is 56- to 65-percent predicted, a 30 percent rating is assigned. Id. A 60 percent evaluation is assigned when FEV-1 is 40- to 55-percent predicted, or; when FEV-1/FVC is 40 to 55 percent or; when DLCO (SB) of 40- to 55-percent predicted, or when there is maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Id. A 100 percent evaluation is assigned when FEV-1 is less than 40 percent of predicted value, or; when FEV-1/FVC is less than 40 percent, or when DLCO (SB) is less than 40-percent predicted, or; maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization,) or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. Id. The provisions of 38 C.F.R. § 4.96(d)(5) (2012) instruct VA to evaluate pulmonary function tests on post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results are poorer than the pre-bronchodilator results. In those cases, VA is instructed to use the pre-bronchodilator value for rating purposes. The Board notes that although this exception was not codified until October 6, 2006, the VA's previous final rule, which updated the rating schedule for evaluating respiratory disabilities in 1996, made clear that pulmonary function was to be tested after bronchodilation treatment because these post-treatment results "reflect the best possible functioning of an individual" and that the use of this testing "assures consistent evaluations." 61 Fed.Reg. 46,723 (Sep. 5, 1996). The October 6, 2006 revision reiterates that "the best possible pulmonary function (which is ordinarily post-bronchodilator functioning) is the basis of standards for pulmonary function testing," and merely clarifies that, for those who have a contrary effect from use of bronchodilator, the best pulmonary function would be the pre-bronchodilator functioning. See Proposed Rule 67 Fed.Reg. 54394, 54395 (Aug. 22, 2002), adopted at 71 Fed. Reg. 52459 (Sept. 6, 2006). The Veteran in this case underwent three PFTs during the period under review that were administered by the VA. The chart below contains the pertinent results before and after use of a bronchodilator (BD): (CONTINUED ON NEXT PAGE) Date FEV-1 (pre-BD) FEV-1 (post-BD) FEV-1/FVC (pre-BD) FEV-1/FVC (post-BD) DLCO 5/29/03 65 % pred. 72 % pred. 76 % 79 % 79 % pred. 1/27/06 78 75 75 75 48 12/17/08 33 40 66 71 38 It is unclear from the record whether the VA examiners tested the Veteran's DLCO using the single breath (SB) method, as required in the rating criteria. In light of the fact that the RO has already awarded the Veteran his 100 percent schedular rating based in part on the DLCO value of 38 percent evident at the December 2008 PFT [see the RO's April 2010 rating decision, at 2], the Board resolves all doubt in the Veteran's favor and will assess each DLCO value as if it were obtained using the SB method. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court 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 appeal period. As noted above, a 10 percent disability rating has been in effect for the entire period under review, from September 4, 2001 to January 12, 2009. Applying the evidence of record to the rating criteria for bronchitis, the Board concludes that the Veteran's overall disability picture for bronchitis during this period is most nearly approximated by the currently assigned 10 percent from September 4, 2001 to January 26, 2006, by a 60 percent rating from January 27, 2006 to December 16, 2008, and by a 100 percent rating from December 17, 2008 to the end of the period, January 12, 2009. The evidence of record demonstrates that from September 4, 2001 to January 26, 2006, the Veteran's bronchitis manifested in relatively mild symptomatology. A January 28, 2002 VA Progress Note indicated that the Veteran had a history of bronchitis, but "none in over 1 year." Shortly thereafter in February 2002, the Veteran exhibited no dyspnea, hemoptysis, cough, pain with respiration, or wheezing. See the Veteran's February 8, 2002 VA Rehabilitation Note. The Veteran testified at the RO in March 2003 and indicated that he experienced bouts with arthritis only about two to three times a year. As shown above, May 2003 PFT testing showed post-bronchodilator FEV-1 levels at 72 percent predicted, FEV-1/FVC levels at 79 percent, and a DLCO level at 79 percent predicted. Under Diagnostic Code 6600, the Veteran's May 2003 PFT values fall squarely within the thresholds considered for a 10 percent disability rating. Notably the September 2003 VA examiner indicated that the Veteran's PFTs showed an obstructive pattern, but with little abnormalities. Chest x-rays taken in July 2003 demonstrated clear lung fields. The Board recognizes the Veteran's recent testimony suggesting that his bronchitis disability worsened in severity in mid-2003 because that was the time when he was put on an inhaler and prescribed antibiotics for a fungal infection in his lungs. See the July 2010 hearing transcript, at 5. While the Board in no way doubts that the Veteran experienced worsened bronchial symptoms at times during 2003 requiring an inhaler or antibiotics for treatment, the medical evidence of record demonstrates that such exacerbations were relatively short-lived. Indeed, upon examination in March 2004, the Veteran reported a negative history for dyspnea on exertion or at rest, or hemoptysis. See the Veteran's March 1, 2004 VA Progress Note. Subsequently, on February 5, 2005, a VA physician specifically observed that the Veteran had "no respiratory symptoms." Indeed it is not until January 27, 2006 when the objective evidence of record demonstrates a permanent change in severity of the Veteran's bronchitis disability, thus warranting an increased rating. As shown above, the Veteran's PFT scores include a DCLO value of just 48 percent predicted as of January 27, 2006. Diagnostic Code 6600 specifies that DCLO values between 40- to 55-percent predicted warrant the assignment of a 60 percent disability rating, irrespective of the other values for FEV-1 or FEV-1/FVC. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. Significantly, the January 2006 VA examiner identified a moderate decrease in the Veteran's diffusion capacity, and specifically highlighted the Veteran's complaints of labored breathing, and becoming short of breath quickly with activities. Thus, in light of the Veteran's diminished DLCO value obtained at the January 27, 2006 PFT examination, the Board finds that an increased initial rating from 10 to 60 percent is warranted, effective on that day. The evidence of record does not demonstrate worsened bronchitis symptomatology that would warrant the assignment of a 100 percent schedular rating under Diagnostic Code 6600 at any time during the appeal period under review until December 17, 2008. Indeed, PFTs obtained on that day revealed significantly lower FEV-1 [40 percent predicted], FEV-1/FVC [71 percent] and DCLO [38 percent predicted] values than at any time prior. As noted above, the RO has already awarded a 100 percent schedular rating based on this DCLO value under Diagnostic Code 6600, but simply made this award effective the date of the Veteran's January 13, 2009 VA examination, and not the date his scores were actually tallied. While it may be that the Veteran's PFT score report was not associated with the record until shortly after the January 2009 VA examination report, the Board will again resolve all doubt in the Veteran's favor and make the increased initial rating to 100 percent effective the date his December 17, 2008 PFT test scores were first generated. The Board adds that at no time during the appeal period did the Veteran exhibit cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or episodes of acute respiratory failure, as an alternative means to a 100 percent disability rating under Diagnostic Code 6600. Indeed, the January 2009 VA examiner indicated that the Veteran was in the "endstage lung disease category" for the first time in his corresponding examination report. Maximum exercise capacity testing was not performed, and the Veteran specifically denied requiring outpatient oxygen therapy at the July 2010 hearing. See the July 2010 Hearing Tr., at 5. In sum, the Board finds that staged ratings are appropriate in this case. A 10 percent disability rating for the Veteran's service-connected bronchitis is maintained from September 4, 2001 to January 26, 2006; an increased initial rating from 10 percent to 60 percent is granted, effective January 27, 2006 to December 16, 2008; and an increased initial rating from 60 to 100 percent is granted, effective December 17, 2008 to January 12, 2009, at which point the Veteran's 100 percent rating currently in effect will continue. For the sake of economy, the Board will discuss extraschedular consideration for all the disabilities on appeal in a common discussion below. IV. Increased initial rating for lumbosacral strain prior to January 27, 2006 The RO has rated the Veteran's lumbosacral strain 10 percent disabling under Diagnostic Code 5237 [lumbosacral strain] from May 9, 2002 to January 26, 2006. During the pendency of this appeal, VA amended the rating schedule for evaluating disabilities of the spine two times, effective on September 23, 2002 and September 26, 2003 respectively. Effective September 23, 2002, the only change in the rating schedule pertained to 38 C.F.R. § 4.71a, Diagnostic Code 5293 [intervertebral disc syndrome (IVDS)]. While maintaining its designation under Code 5293, the rating criteria changed in September 2002 from evaluating IVDS based on mild, moderate, severe and pronounced symptomatology to evaluating IVDS based on the total duration of incapacitating episodes [requiring bed rest prescribed by a physician], or based on combining separate evaluations of chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever results in the higher evaluation. In September 2003, Diagnostic Code 5293 changed its designation to Diagnostic Code 5243, but the rating criteria remained largely the same. The Board notes that in this case, the Veteran has not been diagnosed with IVDS, nor do his symptoms [as they presented during the time period under review] include associated neurologic impairment such that a rating under either the former or current IVDS criteria would be appropriate. In addition, neither the former nor the current IVDS codes would avail the Veteran, as there is no evidence of symptoms of sciatic neuropathy, muscle spasm, or other neurological findings particular to a diseased disc evident from May 9, 2002 to January 27, 2006, nor has the Veteran been prescribed bed rest for such disability by a physician. As such, the former and current diagnostic criteria for evaluating IVDS are inapplicable, and will be discussed no further. Effective in September 2003, the new criteria for evaluating service-connected spine disabilities other than IVDS became codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242. All disabilities considered under Diagnostic Codes 5235 to 5242 are evaluated under common criteria outlined in the General Rating Formula for Diseases and Injuries of the Spine. The Board notes that consideration under the revised schedular criteria should not be undertaken before such became effective. The effective date rule contained in 38 U.S.C.A. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to September 26, 2003, neither the RO nor the Board may apply the revised rating schedule. The Board will therefore evaluate the Veteran's service-connected lumbosacral strain under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. The AMC notified the Veteran of the former diagnostic criteria pertaining to lumbosacral strains [Diagnostic Code 5295] in the September 2012 Supplemental Statement of the Case. Thus, the Board's decision to proceed in adjudicating this claim does not, therefore, prejudice the Veteran in the disposition thereof. See Bernard, 4 Vet. App. at 393-94. Former Diagnostic Code 5295, lumbosacral strain, provides a 40 percent evaluation when the disability is severe, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on force motion. A 20 percent evaluation is assigned with muscle spasm on forward bending, loss of lateral spine motion, unilateral, in standing position. A 10 percent rating is assigned for characteristic pain on motion. 38 C.F.R. § 4.71(a), Diagnostic Code 5295 (2002). Because the Veteran's lumbosacral strain manifests in limitation of motion at times during the period under review, the Board will also consider whether an initial rating in excess of 10 percent may be warranted under former Diagnostic Code 5292 [limitation of motion of the lumbar spine]. Under Code 5292, a 40 percent rating is assigned for severe limitation of motion, a 20 percent rating for moderate limitation of motion, and a 10 percent rating for slight limitation of motion. 38 C.F.R. § 4.71(a), Diagnostic Code 5292 (2002). Because the Veteran's lumbar spine is not ankylosed, former Diagnostic Codes 5286 and 5289 are not for application in this case. Diagnostic Code 5285 [residuals of vertebral fracture] do however warrant consideration, as an x-ray report dated on May 9, 2002 notes the presence of end-plate deformities of L1 and L2 suggestive of old fractures. Subsequently, a September 2003 VA examiner also noted "[d]eformities L1 and L2 suggesting old fractures]" on x-ray. In pertinent part, former Diagnostic Code 5285 allows for the addition of 10 percent for demonstrable deformity of the vertebral body with definite limited motion or muscle spasm. Notwithstanding the fact that he Veteran is not service connected for any vertebral fracture residuals, the Board notes that subsequent imaging more definitively demonstrates that no such fractures actually exist. Indeed, x-rays taken at a January 2006 VA examination, and an MRI administered at a December 2008 examination unequivocally showed "normal" imaging of the lumbar spine, without indication of a prior fracture. Indeed the December 2008 MRI report specifically indicated that the Veteran's lumbar spine showed no acute or chronic compressions, with alignment and apophyseal joints within normal limits. Although all findings in the above-referenced imaging reports are considered competent and credible, the Board places greater probative weight on the findings of the January 2006 and December 2008 VA examiners, which are definitive and are not couched in terms of speculation or suggestion, as are the findings of the May 2002 and September 2003 VA examiners. As such, Diagnostic Code 5285 is not for application either. With respect to the current ratings criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease the following ratings will apply. This formula encompasses current Diagnostic Codes 5237 [lumbosacral or cervical strain]. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71, Plate V (2012) as well as Note (2) to the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). For the period from May 9, 2002 to September 28, 2003, only the former codes are for application. As noted above, ratings under these codes may be applied prospectively. As noted above, to warrant an increased initial rating to 20 percent under former Diagnostic Code 5295 [lumbosacral strain], the evidence must demonstrate the presence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. Although the medical evidence of record dated from May 2002 to January 2006 documents complaints of pain on motion and demonstrates limited lateral motion due to the Veteran's lumbosacral strain, the evidence does not demonstrate that the Veteran ever experienced muscle spasm or unilateral loss of lateral spine motion during this period, and the Veteran does not so contend. Indeed, in September 2003, the Veteran could "side tilt" in either direction to 20 degrees. Although lateral flexion was not measured at the prior May 2002 VA examination, lateral rotation was shown to be 30 degrees on the right and left at that time. Thus an increased initial rating to 20 percent is not available under former Diagnostic Code 5295. In the same vein, the Veteran has not exhibited any of the more "severe" indicators warranting a 40 percent rating under the same code. With respect to rating the Veteran's lumbosacral strain under former Diagnostic Code 5292 [limitation of motion of the lumbar spine], the key question at issue is not whether such limitation exists, but whether this limitation can be characterized as "moderate" or "severe" in degree, thus warranting an increased initial rating to 20 or 40 percent respectively. The Board recognizes that the words "moderate" and "severe" are not defined in the VA Rating Schedule. As such, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2012). The Veteran appeared for only two range of motion assessments during the period under review. In May 2002, the Veteran was able to forward flex to 90 degrees, extend to 30 degrees and laterally rotate to the right and to the left to 30 degrees respectively. Although the VA examiner noted the Veteran's complaints of ongoing pain at the beginning of the examination report, he did not indicate at which degree painful motion began, if at all, nor did he perform repetitive motion testing. Subsequently, in September 2003, the Veteran was able to forward flex to 75 degrees, with onset of pain at 60 degrees. He had lateral flexion ["side-tilt"] to 20 degrees bilaterally, and extension to 10 degrees. The September 2003 VA examiner also failed to perform repetitive motion testing. The Board finds this general lack of discussion as to the effects of pain on motion, or repetitive motion, within these examination reports troubling, especially in light of the fact that the Veteran has continuously complained of pain throughout the period under review, to include pain he himself rated as 9/10 in severity at an April 28, 2003 VA Screening Assessment, and in light of the fact that within eighteen months, the Veteran appeared to have lost 66 percent of his ability to extend. Indeed, when rating musculoskeletal disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. DeLuca v. Brown, 8 Vet. App. 202 (1995). These sections essentially enable the award of a higher rating on the basis of functional loss caused by various factors, such as pain, weakness, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. By the mere fact that the Veteran could only extend his lumbar spine to 10 degrees at the September 2003 VA examination, which the Board observes amounts only to 33 percent of what is considered normal, coupled with decreased ranges of motion in all other directions measured at the time, the Board believes that the Veteran's limitation of motion should be categorized as "moderate" in severity, warranting a 20 percent rating under former Diagnostic Code 5292. Although the September 2003 VA examiner did not perform repetitive motion testing, he did observe that the Veteran was able to forward flex to 75 degrees despite experiencing pain at 60 degrees. At that examination, the Veteran simply described experiencing a "dull pain in the low back" which he has worked through since 1981, and for which he had never received treatment. There is no indication in the September 2003 VA examiner's report, or in any of the other lay and medical evidence included in the record during the time period under review indicating that the Veteran suffered from additional functional loss due to DeLuca factors, such that a rating higher than 20 percent is warranted under Diagnostic Code 5292, amounting to limitation of motion that is "severe" in degree. Because the prior May 2002 VA examiner acknowledged the Veteran's complaints of ongoing pain but made no finding as to whether pain exists at any degree during range of motion testing, the Board will resolve all doubt in the Veteran's favor and make the above-mentioned increased initial rating from 10 to 20 percent effective the date service connection for a lumbosacral strain took effect, May 9, 2002. As noted above, the new regulations pertaining to rating spine disabilities were made effective on September 26, 2003. The only remaining question is whether a disability rating higher than 20 percent may be assigned under the current rating criteria at any time between the effective date of this regulation change to the end of the period here under review, January 26, 2006. After review of the record, the Board finds that a higher rating is not warranted. A 40 percent rating is assigned under the General Rating Formula when forward flexion of the thoracolumbar spine is 30 degrees or less, or when favorable ankylosis of the entire thoracolumbar spine exists. Higher ratings are possible with unfavorable ankylosis of either the thoracolumbar spine or the entire spine. Because the Veteran has mobility of his lumbar spine, a 40 percent or higher rating is simply not warranted based on ankylosis, favorable or not. In addition, as noted above, the Veteran was in fact able to forward flex to 75 degrees at his September 2003 VA examination, even with pain starting at 60 degrees. Although the Veteran asserted at a July 2005 VA general medical examination that he is unable to walk more than 200 yards [later clarified by the Veteran to be only 100 yards] or stand for 15 to 20 minutes, such impairment was specifically related to the Veteran's service-connected ankle disability, and not his spine. The Board in no way doubts that the Veteran has in fact experienced pain and fatigue due to his lumbosacral strain disability [see the Veteran's April 28, 2003 VA Screening Assessment], but the lay and medical evidence of record during the time period under review in no way demonstrates that additional functional loss due to Deluca factors most closely approximates the criteria contemplated by the assignment of a higher disability rating [40 percent or greater] under 38 C.F.R. §§ 4.40 and 4.45. Thus, a rating higher than 20 percent is not warranted under the current rating criteria at any time prior to January 27, 2006. The Board observes that the Veteran appeared for a VA examination on January 27, 2006, and demonstrated limitation of forward flexion to only 30 degrees for the first time. The RO awarded a 40 percent disability rating under the current rating criteria based on this assessment, effective the date of the examination. As noted above, the Veteran has challenged the propriety of this 40 percent rating, and the question of whether an initial rating greater than 40 percent is warranted for the time period dating from January 27, 2006 to the present day is an issue currently on appeal that is remanded to the AOJ below for additional evidentiary development. The General Rating Formula also provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (1) (2012). During the time period under review, the Veteran did not exhibit any neurologic impairment stemming from his lumbar spine disability that would necessitate a separate compensable disability rating. Indeed, at the May 2002 VA examination, the Veteran specifically denied experiencing radiating pain [see the May 2002 VA examiner's report, at 1], and no such symptoms were mentioned by either the Veteran or the VA examiner at the September 2003 VA examination. At his July 2005 VA examination, the Veteran did note some radiating pain to his left buttocks and no further. His deep tendon reflexes were 1+ patella and 2+ Achilles bilaterally, without tenderness to the toes. Subsequently at his January 27, 2006 VA examination, straight leg raising was negative to 90 degrees bilaterally, and the Babinski test was negative. Although deep tendon reflexes required some reinforcement and distraction, the Veteran's senses were intact, and motor strength was 5/5 in the left lower extremity, and 3 to 4/5 in the right foot and ankle secondary to ankle pain, with normal motor strength in the rest of the right lower extremity. The VA examiner indicated that there were "no signs or symptoms of nerve root irritation" associated with the Veteran's lubosacral strain. See the January 2006 VA examiner's report, page 3. Moreover, there is no medical evidence reflecting neurological symptoms such as foot drop or bowel and bladder dysfunction. Accordingly, a separate compensable rating for neurologic impairment is not warranted during at any time from May 9, 2002 to January 26, 2006. As with the Veteran's bronchitis claim above, the Board has considered whether staged ratings are appropriate under the former or current diagnostic codes for his lumbosacral strain during the period under review per the Court's holding in Fenderson. The symptomatology of the Veteran's lumbosacral strain has not undergone any significant increase or decrease so as to warrant a rating in excess of 20 percent at any time from May 9, 2002 to January 26, 2006. Accordingly, staged ratings are not warranted. In sum, the criteria for an increased initial rating from 10 to 20 percent, but no higher, have been met for the Veteran's lumbosacral strain under former Diagnostic Code 5292 as of May 9, 2002. V. Extraschedular considerations The Board has also considered whether referral of the Veteran's initial rating claims for bronchitis and/or his lumbosacral strain for an extraschedular rating is appropriate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (2012). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. On review and as discussed, the rating criteria for the Veteran's bronchitis reasonably describes the Veteran's disability level and symptomatology. That is, the assigned evaluations consider the Veteran's level of pulmonary function, and higher schedular evaluations are available if the disability picture were to more nearly approximate a greater level of disability. The rating criteria specifically contemplate four different levels of pulmonary function both prior to and after use of bronchodilators, in order of severity, and as discussed above, the Veteran's pulmonary functioning testing results have met the criteria for three of these levels during the period under review, to include the assignment of a 100 percent rating. The Veteran's thoracolumbar strain primarily involves pain and limitation of motion. Such symptoms are specifically contemplated by the former and current rating criteria. Indeed, pain on motion warrants the assignment of a 10 percent disability rating under former Diagnostic Code 5295, and limited motion is specifically addressed in former Diagnostic Code 5292 and the current General Rating Formula. Moreover, the effects of pain are addressed by the schedule through application of the provisions in 38 C.F.R. §§ 4.10, 4.40, and 4.45 and Deluca factors, discussed above. Hence, the rating criteria reasonably describe the Veteran's disability. Because the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology for both bronchitis and his lumbosacral strain, for the periods under review, the second and third questions posed by Thun become moot. In short, there is no indication in the record that the average industrial impairment from the Veteran's bronchitis or lumbosacral strain would be in excess of that contemplated by ratings currently assigned; the Veteran's disability picture is not shown to be exceptional or unusual. Therefore, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). VI. TDIU prior to April 6, 2005 The RO awarded the Veteran a TDIU award effective April 6, 2005. The RO chose this effective date because this was the date upon which it received the Veteran's formal application for TDIU, VA Form 21-8940. On that form, the Veteran indicated that his service-connected back and ankle disabilities, as well as his service-connected shoulder disability, rendered him unable to secure or follow a gainful occupation. As discussed in the Introduction above, the Court has held that a claim for TDIU is part of an increased rating claim when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's initial rating claims for his right ankle sprain residuals and lumbosacral strain stem from applications received in September 2001 and May 2002 respectively. Thus, even though the RO has already awarded TDIU as of April 2005, the holding in Rice requires that entitlement to TDIU be considered as an alternate means to a 100 percent rating as part of the Veteran's pending initial rating claims for the back and ankle, dating back to September 2001 or May 2002. As such, the question of whether a TDIU is warranted at times prior to April 2005 is incorporated within the Veteran's appeal. For reasons discussed below, the Board finds that entitlement to TDIU is in fact warranted, as of May 9, 2002 at the very latest. May 9, 2002 is the effective date for the Veteran's lumbosacral strain service-connection award, and marks the earliest date upon which TDIU may be awarded as part and parcel of the Veteran's claim for a higher initial rating for his lumbosacral strain. As noted above, because the Board is not reaching the merits of the Veteran's right ankle initial rating claim in this decision, the question of whether a TDIU award may be granted any time prior to May 9, 2002, to include on the date the RO made his right ankle service-connection award effective [September 4, 2001], must be deferred. A TDIU rating may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). For the purposes of establishing one disability at 40 percent, disabilities affecting a single body system, to include orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric systems, may be considered as one disability. Id. In this case, as of May 9, 2002, service-connection is in effect for GERD, rated 30 percent disabling; residuals of a right ankle sprain, rated 20 percent disabling; left shoulder impingement, rated 20 percent disabling; lumbosacral strain, rated 20 percent disabling [as per the Board's decision above]; and chronic bronchitis, rated 10 percent disabling. For the purposes of meeting the requirement of having one disability at 40 percent, the disability ratings for the Veteran's orthopedic disabilities [ankle, shoulder and back] may be combined under the Combined Ratings Table located at 38 C.F.R. § 4.25 (2012). Application of this table demonstrates that three 20 percent ratings combine to a rating of 49 percent, rounded up to 50 percent. Using the same table, combining the single rating for the Veteran's orthopedic disabilities with his 30 percent rating for GERD, and a 10 percent rating for bronchitis, ultimately generates a total combined rating that rounds up to 70 percent. Thus, the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) as of May 9, 2002. As the Veteran meets the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16(a), the Board's inquiry turns to whether he is able to secure or follow a substantially gainful occupation. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Veteran is an electrician by trade, but testified in July 2010 that he had not worked in that capacity since 2000. The Veteran indicated that he attempted work at a fast food restaurant in 2002, but was only able to work for one month, because he couldn't lift or stay on his feet for long periods of time. See the July 2010 Hearing Tr., at 10-11. The evidence of record confirms that the Veteran last held steady work in 1999, as a convenience store manager and an electrician. He briefly worked from June to August 2001 as an apartment maintenance man. See the Veteran's February 20, 2002 VA Integrated Treatment Plan. He subsequently entered the Dallas Homeless Domicile Program at the VA in October 2001, and received some vocational training. He was discharged from this program in June 2002, having secured independent housing, and with "competitive employment in place." See the Veteran's June 13, 2002 Discharge Summary. This employment was at the fast food restaurant referenced above, which lasted for only one month, and the Veteran has not worked since. As noted above, the Veteran asserts that his service-connected lumbosacral strain, in and of itself, or in combination with his other service-connected disabilities, prevented him from securing or following a gainful occupation. Although it is clear that the Veteran has a past history of nonservice-connected mental health and drug problems that have impacted his ability to work, the evidence of record demonstrates that the Veteran's service-connected physical disabilities have rendered the Veteran unable to secure or follow a substantially gainful occupation prior to April 6, 2005, notwithstanding the impact of his nonservice-connected disabilities. In May 2005, the Veteran submitted a statement indicating that he was only employed for one month in 2002, and that he was terminated because of his inability to perform job tasks. See the Veteran's May 2, 2005 Statement in Support of Claim. A July 2005 VA examiner specifically examined the Veteran's service-connected left shoulder, and indicated that "[f]or several years [the Veteran] was an electrician, which required him to do a lot of overhead work and running electrical lines and conduit." The examiner determined that the Veteran "became unable to do this job because of the shoulder pain." The examiner pertinently highlighted the Veteran's 2002 employment at a fast food restaurant, but similarly found that the Veteran was also "unable to do this." The examiner finally concluded that the Veteran was "unemployable except in sedentary occupations," and that the Veteran "has done manual type labor all of his life but is currently unable to do these jobs because of the service-connected conditions." See the July 2005 VA examiner's report, at 2-3. Subsequently, after examining the Veteran's back disability, a January 2006 VA examiner noted that the Veteran had not been employed since 2002 when he worked at a fast food chain, and was "unable to tolerate the prolonged standing required to work the counter . . . ." See the January 2006 VA examiner's report, at 2. It is clear from the record that the Veteran has not been gainfully employed since 1999. While he has held positions as a maintenance worker from June to August 2001, and at a fast food restaurant in May to June 2002, such employment lasted only a total of four months, combined. The Veteran is competent to attest to his physically being unable to perform duties as an electrician due to shoulder and back pain, and the Board finds such statements to be credible, especially in light of the fact that VA medical examiners have confirmed that the Veteran is unable to reach overhead due to his shoulder, and that he cannot physically stand for long periods of time due to his back and/or ankle. The Veteran has no prior training for any kind of sedentary work, nor has he worked as anything other than a laborer his whole career. Indeed, VA examiners have already concluded that the Veteran is unemployable due to service-connected disabilities, citing problems dating back to 2002 when he was attempting to work at the fast food restaurant. Given this evidence, and resolving any remaining doubt in favor of the Veteran, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected low back disability, in combination with his service-connected shoulder and ankle disabilities, as of the date service-connected went into effect for his lumbosacral strain, May 9, 2002. 38 U.S.C.A. § 5107(b) (West 2002); Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is therefore granted as of this date. ORDER An initial rating greater than 10 percent from September 4, 2001 to January 26, 2006 for bronchitis is denied. An initial rating of 60 percent from January 27, 2006 to December 16, 2008 for bronchitis is granted, subject to controlling regulations applicable to the payment of monetary benefits. An initial rating of 100 percent from December 17, 2008 to January 12, 2009 for bronchitis is granted, subject to controlling regulations applicable to the payment of monetary benefits. An initial rating of 20 percent from May 9, 2002 to January 26, 2006 for a lumbosacral strain is granted, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to TDIU is granted for the time period from May 9, 2002 to April 5, 2005. REMAND Although the Board regrets the delay, the Veteran's remaining claims must be remanded for further evidentiary development, and to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). At his July 2010 hearing, the Veteran testified that he had been seeing his primary care physician at the VA every six months. In pertinent part, the Veteran indicated that he had last seen his primary care physician within six months prior to the date of the hearing [i.e., between February 2010 and July 2010], and that he was scheduled to see his VA physician again in the month following the hearing [i.e., August 2010]. In its July 2011 remand, the Board observed that VA treatment records dated later than November 2008 were not of record, and instructed the AOJ to obtain updated records from the Dallas VA Medical Center. The Board specifically stated that if such records were unavailable, such should be clearly documented in the Veteran's claims file. As noted above, VA treatment records dating through April 2009 were of record at the time of the Board's July 2011 remand. In any event, records subsequent to April 2009, to include those related to the 2010 treatment the Veteran specifically identified at the July 2010 hearing, were not of record. In compliance with the Board's remand instructions, the AOJ obtained some of the Veteran's updated VA treatment records from the Dallas VAMC, and associated them with the claims file. Crucially however, these records were dated from December 2010 to August 2011 only. The AOJ provided absolutely no explanation either to the Veteran or to the Board indicating why VA treatment records dated after April 2009 and prior to December 2010 were not obtained. Thus, there is noncompliance with the Board's prior remand instructions, and these VA treatment records must be requested again on remand. In light of the fact that the Veteran specifically testified that he received treatment for his service-connected disabilities at the Dallas VAMC in early 2010 and was slated to have additional treatment in August 2010, the Board cannot proceed without attempting to obtain these VA treatment records again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board adds that on the September 2012 SSOC, the AMC indicated that it reviewed VA treatment records dated through September 4, 2012. The Board has reviewed the Veteran's physical and electronic claims file, but finds no copies of VA treatment records dated subsequent to August 2011 associated with either file. Thus, on remand, the Veteran's ongoing VA treatment records dated subsequent to August 2011 to the present day must also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (finding that VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED to the AOJ for the following action: 1. Obtain the Veteran's relevant VA treatment records dated from April 2009 to December 2010, as well as all relevant ongoing VA treatment records dating since August 2011 to the present day from the VA Medical Center in Dallas, Texas. If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. Following the completion of the above, and after undertaking any other development deems necessary, to include scheduling updated VA examinations if appropriate, review the entire record (to include any and all relevant evidence added to the Veteran's Virtual VA file), and readjudicate the following claims remaining on appeal: (1) entitlement to an initial rating greater than 30 percent for service-connected GERD; (2) entitlement to an initial rating greater than 20 percent for residuals of a right ankle sprain; (3) entitlement to an initial rating greater than 40 percent for a lumbosacral strain for the time period from January 27, 2006 to the present day; and (4) entitlement to TDIU prior to May 9, 2002. In particular, discussion of whether higher initial ratings are warranted for objective neurologic abnormalities associated with the Veteran's lumbosacral strain, such as right and left lower extremity radiculopathy, should be included in the readjudication of the Veteran's initial rating claim for his lumbosacral strain. If the benefits sought on appeal remain denied, in whole or in part, then the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs