Citation Nr: 21061903 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 13-31 653 DATE: October 5, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for arthritis of the lumbosacral spine is denied. Entitlement to a disability rating of 10 percent for painful limitation of motion of the left knee for the period prior to July 6, 2016, is granted. Entitlement to a disability rating of 10 percent for painful limitation of the right knee for the period prior to July 6, 2016, is granted. Entitlement to a rating greater than 10 percent for arthritis of the left knee with painful motion for the entire appeal period is denied. Entitlement to a rating greater than 10 percent for arthritis of the right knee with painful motion for the entire appeal period is denied. A separate 10 percent rating, but no higher, for instability of the left knee for the period beginning on September 13, 2010, is granted A separate 10 percent rating, but no higher, for instability of the right knee for the period beginning on September 13, 2010, is granted. Entitlement to an initial disability rating of 30 percent for chronic obstructive pulmonary disease (COPD) prior to July 6, 2016, is granted. Entitlement to an initial disability rating greater than 30 percent for COPD at any time during the appeal period, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine of 30 degrees or less; favorable or unfavorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the entire spine. 2. For the period beginning on September 13, 2010, the Veteran's right and left knee disabilities are shown to have symptomatology more closely approximating slight instability. 3. For the entire appeal period, the Veteran's right and left knee disabilities are manifested by painful limitation of motion, but not limitation of flexion to 60 degrees or less, limitation of extension to 20 degrees or more, tibia or fibula impairment, ankylosis, genu recurvatum, or additional functional loss. 4. Throughout the period on appeal, the Veteran's COPD manifested with pulmonary function testing results no less than FEV-1 of 56- to 70-percent predicted, or FEV-1/FVC of 56 to 70 percent predicted, or DLCO of 56- to 65-percent predicted, but not FEV-1 is 40 to 55 percent predicted; FEV-1/FVC is 40 to 55 percent; DLCO is 40 to 55 percent predicted; or when maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). 5. The Veteran's service-connected disabilities do not render him unable to engage and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5237. 2. The criteria for a 10 percent rating, but no higher, for slight instability of the left knee beginning on September 13, 2010, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for a 10 percent rating, but no higher, for slight instability of the right knee beginning on September 13, 2010, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for a 10 percent rating, but no higher, for painful limitation of the left knee for the entire appeal period, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260. 5. The criteria for a 10 percent rating, but no higher, for painful limitation of the right knee for the entire appeal period, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260. 6. The criteria for a 30 percent rating, but no higher, for chronic obstructive pulmonary disease (COPD) beginning on November 1, 2003, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1, 4.3, 4.7, 4.10, 4.14, 4.96, 4.97, Diagnostic Code 6604. 7. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran serviced on active duty in the U.S. Navy from June 1987 to October 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in October 2017 and March 2019, at which time it was remanded for development. The case has since been returned to the Board for appellate review. The Board finds that the AOJ substantially complied with prior remand directives, to the extent possible, and no further action is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). During the pendency of the appeal, a July 2016 rating decision awarded a 10 percent rating for each knee under Diagnostic Code 5010-5260 effective July 6, 2016 and discontinued the Veteran's 10 percent rating for "traumatic arthritis of the bilateral knees" under Diagnostic Code 5010. Additionally, an April 2021 rating decision increased the Veteran's rating for COPD from 10 percent to 30 percent effective July 6, 2016. As the assigned evaluations are less than the maximum available rating, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, the Veteran was granted service connection for fibromyalgia in the April 2021 rating decision. As this grant represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Duty to Assist In March 2019, the Board remanded the Veteran's claims to obtain all outstanding, pertinent VA treatment records and private treatment records. Specifically, the Board instructed that an attempt should be made to obtain records from VA medical centers in Seattle, Washington, Chicago, Illinois, and Pittsburgh, Pennsylvania. Additionally, the Board instructed that the AOJ should make at least two attempts to obtain any private treatment records identified and authorized by the Veteran. The AOJ made attempts to obtain the pertinent VA records, and in a letter dated October 10, 2019, the Veteran was notified that there were no available treatment records from the Seattle, Washington VA medical center (VAMC). The Veteran was also notified that the most up to date records available from the Chicago VAMC were dated November 18, 2003 and from the Pittsburgh VAMC were dated October 16, 2016. Additionally, the Veteran was asked to complete and return authorization and release forms in order to obtain any pertinent private treatment records or to obtain and send these records on his own. However, the Veteran did not respond to this request. Since the date of the correspondence, the Veteran has not submitted any additional records, nor has he requested that VA attempt to obtain the records on his behalf. As such, the Board finds that VA's duty to assist has been satisfied with regard to obtaining treatment records. The Board also remanded the Veteran's original compensation claim for traumatic arthritis of the bilateral knees and arthritis of the lumbosacral spine for new VA examinations, concluding that the prior examinations were not compliant with the standards set forth in Correia v. McDonald, and Sharp v. Shulkin. 28 Vet. App. 158, 168-169 (2016) and 29 Vet. App. 26 (2017). The Board noted that the Veteran had not attended a previously scheduled spine examination and concluded that he was confused as to why the examination was scheduled. On remand, the AOJ made attempts to schedule the new VA examinations. However, the Veteran canceled them, noting that they were already completed, and stating that no more examinations are required. The Board notes that the Veteran's bilateral knee and low back claims arise from an initial rating appeal. Generally, pursuant to 38 C.F.R. § 3.655(b), increased rating claims are denied if a Veteran fails to attend a scheduled examination without good cause. However, because these are initial rating claims, and not increased rating claims, the Board will consider them original compensation claims, and pursuant to section 3.655(b) when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Because good cause has not been established, the Veteran's claims will be decided based on the evidence of record. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505. Pyramiding, which is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires: (1) a determination of the date of the receipt of the claim and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flareups. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to an initial disability rating in excess of 20 percent for arthritis of the lumbosacral spine The Veteran's lumbar spine disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 for arthritis, due to trauma and Diagnostic Code 5237 for lumbosacral strain indicate that the General Rating Formula for Diseases and Injuries of the Spine should be used to rate the disability. The General Rating Formula provides for a 10 percent evaluation when a back disability results in forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or 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. A back disability warrants a 20 percent rating where there is 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 is not greater than 120 degrees, or there is 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 40 percent evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. The only criterion which warrants an evaluation in excess of 40 percent for limitation of motion of the thoracolumbar spine is where there is unfavorable ankylosis of the thoracic spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankyloses of the entire spine warrants a 100 percent rating. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formal, Note (2) and Plate V. Moreover, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation of that segment. Id., Note (2). Factual Background Turning to the evidence, the Veteran was awarded service connection for arthritis of the lumbar spine in a September 2009 rating decision with a rating of 20 percent effective November 1, 2003. On appeal, the Veteran contends that his lumbar spine disability warrants a higher rating. In a September 2009 Notice of Disagreement, he reported that his treatment records show substantial damage and arthritic deterioration to the L4-L5 and L5-S1 spinal levels. He further reported that the loss of feeling and numbness in most of his body is related to the spine and surgery was recommended but was not yet the final remedy. Contrary to the Veteran's reports, treating records do not demonstrate this level of impairment in the lumbar spine. The Veteran underwent a VA examination in July 2003 while he was still in service. At this time, he reported low back pain from time to time, noting that he experiences non-radiating pain from stretching wrong or standing for 30 to 40 minutes. On examination, he presented with loss of normal lumbar lordosis. His lumbar spine had limited motion from the L4 to S1 levels with flexion to 45 degrees, no extension, and laterally bending to 15 degrees in each direction. All motion was performed without pain or weakness. There was mild lack of endurance but not lack of coordination. Straight leg raising was negative bilaterally and there was no palpable spasm in the lumbar paravertebral muscles. Reflexes in the lower extremities were positive and equal with no motor weakness. X-rays revealed moderate arthritis, with no other abnormalities. Treatment records from the Veteran's Social Security Administration (SSA) file reveal that he was seen again in May 2009 for lumbar pain. At this time, he complained of numbness in his extremities. On examination, he exhibited a normal gait and was able to bend and squat without difficulty. Magnetic resonance imaging (MRI) revealed the presence of mild degenerative changes with mild stenosis and bulging of the disc, but no focal herniation. Electromyography (EMG) testing was performed to investigate the Veteran's complaints of numbness, but there was no frank evidence of radiculopathy or generalized polyneuropathy. The Veteran was evaluated again in July 2009, at which point his doctor noted that his recent lumbar MRI was negative except for mild degenerative changes and expressed concern for cervical spine disease or cord compression that was related to a prior surgery during childhood that addressed a craniocervical junction tumor. A cervical myelogram was recommended at this time. In May 2013, the Veteran applied for disability with SSA and reported having pain of the low back near the waist and extending close to the buttocks. He elaborated that his low back pain spreads to both sides of the spine during flareups, which are usually associated with over exertion or unplanned, quick twisting. At this time, the Veteran asserted that his back and knee pain was the reason he was unemployed. The Veteran was also evaluated as a new patient with Dr. Y.A. in May 2013 for symptoms of generalized numbness, which was most prominent in the extremities. The Veteran reported that a myelogram was recommended but he did not follow through because he did not want surgery. On examination, he had normal range of motion of the spine and intact muscular strength. The doctor noted that previous consultation notes and studies were reviewed, and they supported the idea that cervical spinal stenosis was the primary problem. In July 2016, the Veteran was provided a VA examination to evaluate his lumbar disability. The examiner noted a diagnosis of lumbar spine degenerative arthritis. The Veteran reported having increased back pain since his last examination in 2003 and less range of motion. He further reported that he is unable to walk more than one mile, climb more than two flights of stairs, stand in one spot for more than 15 minutes, or sit for more than four minutes without changing positions. He also reported that he uses a brace occasionally. Despite these limitations, the Veteran indicated that he is independent with activities of daily living, driving, light grocery shopping, and cooking. He also reported that he cannot use a self-propelled lawn mower for more than one hour. Upon range of motion testing, the Veteran exhibited forward extension to 70 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. Pain was present with motion. However, the examiner concluded that abnormal range of motion and pain on movement did not contribute to functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions and without additional functional loss. He was not being examined immediately after repetitive use over time and the examiner concluded that she could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. With respect to flare ups, the Veteran reported having them four times a week with pain increasing to a level 10 out of 10. He further reported that he treats his flare ups with rest and medication and his pain returns to baseline at a level 7 within two hours. As with repeated use, the examiner noted that the Veteran was not being examined during a flare up, and she concluded that she could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare ups. Otherwise, the Veteran exhibited lumbar tenderness with palpation on examination, but it did not result in abnormal gait or spinal contour. He did not exhibit pain with weight bearing, guarding, or muscle spasm. He exhibited normal muscle strength in the lower extremities, normal reflexes, no muscle atrophy, and no ankylosis. Straight leg raise testing was negative. The Veteran had absent sensation in the feet and toes, but the examiner concluded that the finding is not related in any way to the Veteran's lumbar condition. In support of this conclusion, the examiner noted that x-rays of the lumbar spine performed in 2016 were essentially normal. Additionally, the examiner noted that the Veteran did not have radicular pain, other signs and symptoms due to radiculopathy, or other neurological abnormalities related to the thoracolumbar spine condition. The examiner further concluded that the Veteran does not have intravertebral disc syndrome (IVDS), a thoracic vertebral fracture with loss of 50 percent or more height, or any other significant diagnostic test findings. Finally, the examiner concluded that the Veteran's spine condition does not impact his ability to work. The Veteran was also provided a VA examination in September 2016 to evaluate the nature and etiology of his neurological symptoms. At this time, the Veteran presented with motor function impairment, including muscle weakness of all extremities, very brisk reflexus, and non-specific loss of sensation in the extremities and chest. However, the examiner noted that the Veteran does not have a known peripheral nerve condition. The examiner elaborated that an EMG was normal to rule out this condition, but it was positive for a cervical lesion consistent with the Veteran's myelopathy. The examiner noted that this is a spinal cord condition, which is anatomically related to the Veteran's childhood tumor excision with secondary myelopathy and loss of parenchyma in the area of his surgery. The record also reveals that the Veteran was seen for an orthopedic follow up in September 2016. At this time, he reported some ongoing low back pain, but indicated that he gets relief with injections. His doctor noted that his symptoms were stable, and he seemed to be doing reasonably well. There is no other documentation of treatment on record. In October 2017 and March 2019, the Board remanded the Veteran's claims to obtain new VA examinations to assess the current nature and severity of the Veteran's lumbar disability. However, the Veteran canceled these examinations on both occasions, reporting that examinations had already been completed and additional ones were not required. Analysis Based on the foregoing, the Board finds that a rating in excess of 20 percent is not warranted. The Veteran's flexion was limited to 45 degrees during the July 2003 VA examination, which corresponds to a 20 percent rating. The Veteran did not exhibit additional limitation of motion at any point during the appeal period. In fact, he presented with increased range of motion during the July 2016 VA examination. Further, there is no evidence of ankylosis during the appeal period, or evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare."). He did report having flare ups on a weekly basis, but additional functional limitation was not documented by the examiner. To the contrary, the examiner concluded that she could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare ups. The Veteran did not report immobility of the spine during flares. Significantly, the Board remanded the Veteran's claim in October 2017 and March 2019 for new VA examinations to assess the nature and severity of the Veteran's lumbar disability, but the Veteran canceled them on both occasions. The Veteran's refusal to attend these examinations supports a conclusion that his lumbar disability has not worsened since 2016. Furthermore, absent any evidence that would have been obtained at these examinations, there is no basis to find that the Veteran's flare ups cause more functional limitation than what was documented in the July 2003 and July 2016 VA examinations. Thus, additional compensation based on functional loss is not warranted based on the evidence of record. Additionally, the record does not support a finding that a separate rating is warranted for the Veteran's neurological symptoms. Although numbness and impaired motor function of the lower extremity has been documented in record, both treating doctors and VA examiners have attributed these findings to a cervical lesion and a childhood tumor at the craniosacral junction and not to the Veteran's lumbar spine disability. Finally, the Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). This change does not impact the evaluation in this case as the Veteran does not have IVDS with evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. In sum, the Board finds that a disability rating in excess of 20 percent rating is not warranted. 2. Entitlement to an initial disability rating in excess of 10 percent for traumatic arthritis of the bilateral knees prior to July 6, 2016, and in excess of 10 percent for painful limitation of motion for each knee as of July 6, 2016. A Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003, 5260, 5261, and 5257. See VAOPGCPREC 23-97. For example, when a knee disability is already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran's knee also shows limitation of motion that at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). See VAOPGCPREC 09-04. Moreover, a separate rating could be warranted under 38 C.F.R. § 4.59, based on x-ray findings of arthritis with painful motion. The Board acknowledges that the ratings criteria for the musculoskeletal system was updated during the appeal period, effective February 7, 2021; that new criteria will be address in a separate section below. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71A, Diagnostic Codes 5260 and 5261. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent evaluation. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent evaluation, while ankylosis in flexion between 20 and 45 degrees warrants a 50 percent evaluation. Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5257, a 10 percent rating is assigned when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Diagnostic Code 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the knee joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides for a maximum 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. 38 C.F.R. § 4.71a. The Board notes that Diagnostic Codes 5262 and 5263 governing evaluations for impairment of the tibia and fibula and genu recurvatum are not applicable as the Veteran does not have any of these conditions. Thus, these provisions will not be further addressed. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. Factual Background Turning to the evidence, the Veteran was awarded service connection for a bilateral knee disability in a September 2009 rating decision with a single 10 percent rating for traumatic arthritis without limited or painful motion under Diagnostic Code 5010 effective November 1, 2003. This rating was discontinued in a July 2016 rating decision and replaced with a 10 percent rating for each knee effective July 6, 2016, under Diagnostic Code 5260-5010 for painful limitation of motion that is not compensable under the Diagnostic Codes governing limitation of motion of the knee. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran underwent a VA examination in July 2003 while he was still in service. At this time, he reported bilateral knee pain of increasing severity since 2002. He complained of swelling of the knees with strenuous exercise and a large amount of walking. He also reported pain from standing for longer than 20 minutes and inability to run without significant pain. Despite these limitations, the Veteran reported that he does a lot of walking for exercise. He also indicated during a June 2003 VA respiratory examination that he climbs 70 stairs daily and can walk miles at a slow pace. On examination, he did not exhibit local tenderness or swelling, and his knees flexed from 0 to 150 degrees without pain or weakness. There was no effusion, synovial thickening, or patellar dysfunction, but there was moderate medial joint line spurs and moderate crepitus with motion bilaterally. The was also moderate bowleg deformity with moderate tibial torsion when the knees were extended. X-rays showed moderate traumatic arthritis bilaterally and the examiner concluded that the Veteran's knee impairment causes moderate lack of endurance, but no lack of coordination. Otherwise, the ligaments appeared intact with negative Lachman and drawer signs bilaterally. Cartilage tests were also negative bilaterally. Treatment records from the Veteran's SSA file reveal that he was seen again in May 2009 for discomfort in the knees. At this time, his gait was normal, and he was able to bend and squat without any discomfort. In a September 2010 Notice of Disagreement, the Veteran complained of daily continuous pain and bone-on-bone sensation. He also reported having severely limited range of motion, especially after prolonged walking and standing. The Veteran also reported that his knees lock up and throb excessively. He elaborated that he has had a total knee collapse 5 times in the past two years, once on the left and four times on the right. In May 2013, the Veteran applied for disability with Social Security Administration (SSA) and reported having bilateral knee pain on the top, front face, left, and right sides with locking. He further reported that knee pain causes difficulty kneeling, squatting, bending, sitting for prolonged periods, and climbing stairs or walking on an inclined surface. The Veteran further reported that his back and knee pain were the reason he was unemployed. Additionally, the Veteran also complained of knee pain when he saw Dr. Y.A. in May 2013, though no abnormalities were noted on examination. In July 2016, the Veteran was provided another VA examination to evaluate his bilateral knee disability. The Veteran reported that his pain has increased, and his range of motion has decreased since his last examination. He reported that he is unable to walk more than one mile, climb more than two flights of stairs, stand in one spot for more than 15 minutes, or sit for more than four minutes without changing positions. He further reported that he uses braces for the knees occasionally. Despite these limitations, the Veteran further reported that he is independent with activities of daily living, driving, light grocery shopping, and cooking. He also reported that he cannot use a self-propelled lawn mower for more than one hour. Upon range of motion testing, the Veteran exhibited flexion from 0 to 70 degrees and extension from 60 to 0 degrees in both knees. Pain was present bilaterally with motion. However, the examiner concluded that abnormal range of motion and pain on movement did not contribute to functional loss. The Veteran was able to perform repetitive use testing bilaterally with at least three repetitions and without additional functional loss. However, he was not being examined immediately after repetitive use over time and the examiner concluded that she could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. With respect to flare ups, the Veteran reported having them daily with pain increasing to a level 10 out of 10. He further reported that he treats his flare ups with rest and medication and his pain returns to baseline at a level 7 within two hours. As with repetitive use, the examiner noted that the Veteran was not being examined during a flare up, and she concluded that she could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare ups. The Veteran did not exhibit localized tenderness with palpation, pain with weight bearing, or crepitus. He exhibited normal muscle strength in the lower extremities, no muscle atrophy, and no ankylosis. Joint stability testing was normal. The examiner noted that there was no history of effusion, tibial or fibular impairment, meniscus condition, surgery, or joint replacement. X-rays performed at this time showed medial tibial femoral narrowing and mild bilateral patellofemoral degenerative changes. X-rays also showed small to moderate sized joint effusion of the right knee. Ultimately, the examiner concluded that the Veteran's knee disability does not impact his ability to perform any type of occupational tasks. In September 2016, the Veteran was seen for an orthopedic follow up. At this time, he reported continued knee pain, but indicated that he gets relief with injections. On examination, he exhibited tenderness to palpation of the bilateral knees, and he was assessed with osteoarthritis. There is no other documentation of treatment on record. In October 2017 and March 2019, the Board remanded the Veteran's claims to obtain new VA examinations to assess the current nature and severity of the Veteran's knee disability. However, the Veteran canceled these examinations on both occasions, reporting that examinations had already been completed and additional ones were not required. Analysis As noted, in September 2009, the Veteran was awarded a single 10 percent rating for traumatic arthritis without limited or painful motion under Diagnostic Code 5010 effective November 1, 2003. In July 2016, this rating was discontinued and replaced with a 10 percent rating for each knee effective July 6, 2016, under Diagnostic Code 5260-5010 for painful limitation of motion. However, the Board finds that the 10 percent rating for painful limitation of motion in each knee is warranted for the entire appeal period. Although the Veteran maintained full range of motion during a VA examination in July 2003, he reported bilateral knee pain and was noted to have moderate lack of endurance. Subsequently, the Veteran complained of additional limitation in a Notice of Disagreement dated September 13, 2010. At this time, the Veteran complained of continuous knee pain and limitation of motion and he noted that he had not received a VA examination for his symptoms since he filed his claim. Indeed, the Veteran did not receive a VA examination to evaluate the nature and severity of his knee pain until July 2016, at which time he exhibited painful limitation of motion. Accordingly, the Board finds that a 10 percent rating for each knee is warranted for the entire appeal period. With respect to increased ratings under Diagnostic Codes 5260 and 5261, a rating in excess of 10 percent is not warranted because the evidence does not demonstrate that the Veteran's flexion is limited to 30 degrees or less, or that his extension is limited to 15 degrees or more in either knee. Likewise, a 20 percent evaluation under Diagnostic Code 5003 is not warranted for either knee as each knee is a single major joint. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261. However, a separate compensable rating of 10 percent under Diagnostic Code 5257 for slight instability of both knees is warranted beginning on September 13, 2010. While the July 2016 VA examiner noted that stability testing was normal in both knees, the Veteran has reported having instability in his September 2010 Notice of Disagreement. Specifically, he indicated that he experienced total knee collapse four times with the right knee and once with the left knee. The Board notes that medical evidence is not categorically more probative than lay evidence under Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352-54 (2018). Furthermore, there is no reason to doubt the credibility of the Veteran's lay statements, as the Veteran reported that he uses knee braces to support the knees during the July 2016 VA examination. The Board finds that this evidence supports a finding that the Veteran has slight instability of the knees bilaterally beginning on September 13, 2010. Prior to this date, a separated compensable rating is not warranted because the Veteran did not complain of knee stability before the September 2010 Notice of Disagreement. Additionally, a rating in excess of 10 percent from September 13, 2010, for instability of the bilateral knees under Diagnostic Code 5257 is not warranted because there is no objective evidence of moderate recurrent subluxation or lateral instability of the right knee from any of the VA examinations performed during the period on appeal. The Board also finds that separate ratings under Diagnostic Code 5258 and 5259 are not warranted. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Veteran has not been diagnosed with cartilage damage at any time during the appeal period, nor has there been frequent episodes of effusion. Furthermore, the Veteran's symptoms of pain and locking are being compensated under the assigned ratings for painful limitation of motion and instability under Diagnostic Codes 5260 and 5257. Compensating the same symptom under two separate diagnostic codes is prohibited pyramiding. 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5258 and 5259. Finally, as the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5262 or 5263, respectively. With regard to additional compensation for functional loss, as noted above, the Board finds that the Veteran's functional loss consisted of painful motion, which increases during flare-ups, and is compensated in the assigned 10 percent rating under section 4.59. Beginning on September 13, 2010, the Veteran experienced additional symptoms contributing to functional loss, in the form of instability which has been compensated for in the additional 10 percent rating assigned under Diagnostic Code 5257. Additionally, the Board notes that it remanded the Veteran's claim in October 2017 and March 2019 in an effort to assess whether any additional functional loss was present, but the Veteran canceled the examinations on both occasions. The Veteran's refusal to attend these examinations supports a conclusion that his bilateral knee disability has not worsened since 2016. Furthermore, there is no basis to find that the Veteran's flare ups cause more functional limitation than what was documented in the July 2003 and July 2016 VA examinations. Accordingly, there is no additional compensation for functional loss warranted at any time during the appeal period. 38 C.F.R. §§ 4.40, 4.45, 4.59. New Regulations Effective February 7, 2021 The Board notes that the criteria for knee disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 75453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 3541 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Board has considered these changes and finds that the new criteria respecting evaluations of knee disabilities are not as advantageous to the Veteran in this case, and that the Veteran does not meet the criteria for a higher evaluation. Specifically, the significant changes related to knee disabilities were to add Diagnostic Code 5002 for active arthritic process, which the Veteran does not have. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5002). Additionally, changes were made to the rating provisions for tibia and fibula impairment with an addition of ratings for shin splints. The Veteran, again, has not been diagnosed with these conditions. Thus, these new regulations are not applicable. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262). Further, changes were made to Diagnostic Code 5257 governing instability, which added the requirement of either (1) sprain of or tear (either complete or incomplete) of a knee ligament causing persistent instability, or (2) a diagnosed condition of the patellofemoral complex with recurrent instability (with or without surgical repair); and (3) assistive devices or bracing (either by prescription or not) to the criteria, which were not present in the old pre-February 7, 2021 criteria. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Because the new criteria under Diagnostic Code 5257 require more specific criteria than the old criteria, they are less advantageous to the Veteran. The Veteran is already in receipt of a 10 percent rating for instability of the knees under the prior version of rating schedule. A higher rating under the new criteria is not warranted because the Veteran is not shown to have any ligament injury or any surgical repair for any patellar instability throughout the appeal period. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims addressed herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that, 10 percent ratings for painful motion of each knee under Diagnostic Code 5010-5260 and a separate rating of 10 percent for slight instability of both knees under Diagnostic Code under 5257 is warranted beginning on September 13, 2010, but no earlier. 3. Entitlement to an initial disability rating in excess of 10 percent for COPD for the period prior to July 6, 2016, and in excess of 30 percent beginning on July 6, 2016. The Veteran's COPD has been rated under Diagnostic Code 6604. Under 38 C.F.R. § 4.97, Diagnostic Code 6604, a 10 percent rating is assigned when pulmonary function testing (PFT) shows a forced expiratory volume in one second (FEV-1) that is 71 to 80 percent predicted; forced expiratory volume/forced vital capacity ratio (FEV-1/FVC) that is 71 to 80 percent; or when the diffusion capacity of carbon monoxide (DLCO) is 66 to 80 percent predicted. A 30 percent rating is assigned when FEV-1 is 56 to 70 percent predicted, or FEV-1/FVC is 56 to 70 percent or the DLCO is 56 to 65 percent predicted. A 60 percent rating is assigned where FEV-1 is 40 to 55 percent predicted; FEV-1/FVC is 40 to 55 percent; DLCO is 40 to 55 percent predicted; or when maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned when FEV-1 is less than 40 percent predicted; FEV-1/FVC is less than 40 percent; DLCO is less than 40 percent predicted; maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale, right ventricular hypertrophy, pulmonary hypertension is present as shown by echocardiogram or cardiac catheterization; episodes of acute respiratory failure are present; or outpatient oxygen therapy is required. Pulmonary function tests are required except: (i) when the results of a maximum exercise capacity test are of record and are 15 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; or (iv) when outpatient therapy oxygen is required. 38 C.F.R. § 4.96 (d)(1). If the DLCO (SB) test is not of record, evaluation is based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2). When the pulmonary function tests are not consistent with clinical findings, evaluation is based on the pulmonary function tests unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96 (d)(3). Post-bronchodilator studies are required when pulmonary function tests are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator tests should not be done and states why. 38 C.F.R. § 4.96 (d)(4). When evaluating based on pulmonary function tests, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96 (d)(5). When there is a disparity between the results of different pulmonary function test FEV-1 and FVC results, so that the level of evaluation would be different depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is used. 38 C.F.R. § 4.96 (d)(6). Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96 (d)(7). Factual Background Turning to the evidence, the Veteran was awarded service connection for COPD in a September 2009 rating decision with a 10 percent rating under Diagnostic Code 6604, effective November 1, 2003. In an April 2021 rating decision, the AOJ increased the Veteran's rating to 30 percent under Diagnostic Code 6604, effective July 6, 2016. On appeal, the Veteran maintains that his COPD warrants a higher disability rating. The Veteran underwent a VA examination in June 2003 while he was still in service. At this time, the Veteran reported shortness of breath when he tries to walk fast or run. However, he reported that he can walk miles at a slow pace and climb 70 stairs, which he did on a daily basis. Pulmonary function testing performed in the examination showed an FVC of 92 percent predicted pre-bronchodilator and FVC of 95 percent predicted post-bronchodilator; FEV-1 of 76 percent predicted pre-bronchodilator and FEV-1 of 78 percent predicted post-bronchodilator; and FEV-1/FVC ratio of 65 percent both for the pre and post-bronchodilator. The examiner noted that the Veteran had never had a DLCO measurement, which was necessary to rule out emphysema. The examiner further concluded that the Veteran's restrictions during testing are most probably due to a mild obstructive lung disease, such as COPD. Pulmonary function testing was performed again in September 2003. This testing showed an FVC 97 percent predicted pre-bronchodilator and FVC of 105 percent predicted post bronchodilator; FEV-1 of 90 percent for both the pre and post-bronchodilator; FEV1/FVC ratio of 73 percent pre-bronchodilator and 68 percent post-bronchodilator; and DLCO of 96 percent predicted. The pulmonologist concluded that the Veteran's DLCO was normal and does not support a diagnosis of emphysema. Accordingly, the pulmonologist provided a diagnosis of COPD based on the Veteran's pulmonary function testing and history. There is no record of additional treatment until May 2009, at which point a chest x-ray was performed because the Veteran presented with a cough. The lungs were clear in the imaging, but it showed hyperinflation suggestive of COPD. In September 2010, the Veteran reported in a Notice of Disagreement that he experienced extreme shortness of breath during mild to moderate exercise and extreme coughing as a common occurrence. Another chest x-ray was performed in June 2013, which showed mild to moderate hyperaeration on both sides, indicative of pulmonary emphysema. Unfortunately, treating records associated with these x-rays are not available, despite VA's efforts to obtain them. However, the Veteran was provided another VA examination to assess the nature and severity of his COPD in July 2016. During the examination, he reported increased shortness of breath and wheezing with activity. He estimated that he cannot walk greater than 100 to 200 feet or climb more than two flights of stairs. However, the examiner noted that Veteran does not require the use of oral bronchodilators, antibiotics, or oxygen therapy. Pulmonary function testing showed an FVC 101 percent predicted pre-bronchodilator and FVC of 108 percent predicted post bronchodilator; FEV-1 of 85 percent for pre-bronchodilator and 90 percent for post-bronchodilator; FEV1/FVC ratio of 85 percent pre-bronchodilator and 68 percent post-bronchodilator; and DLCO of 63 percent. The examiner also noted chest x-rays from June 2003 that showed mild emphysematous changes. The examiner concluded that this testing accurately reflects the Veteran's current functioning and his FEV-1 most accurately reflects the Veteran's current level of disability. From these results, she concluded that the Veteran has a mild obstructive defect with no significant improvement after bronchodilator treatment and decreased diffusing capacity indicative of a gas transfer abnormality. The examiner provided a diagnosis of COPD and emphysema with an onset of 2003. In a March 2019 remand, the Board concluded that the July 2016 VA examiner opinion was inadequate for failing to provide a rationale as to why the Veteran's FEV-1 reading was the most indicative of his overall impairment level when his DLCO test suggest additional impairment. An addendum opinion was obtained in April 2021. Citing to the medical literature, a VA examiner reasoned that emphysema status is best monitored by FEV-1, DLCO, and oximetry. The examiner elaborated that DLCO can be reduced by other COPD, parenchymal disease, pulmonary vascular disease, and anemia. The examiner then noted that the following levels represent mild impairment: FEV-1 greater than or equal to 80 percent predicted and DLCO greater than or equal to 60 but less than 80 percent of predicted. Accordingly, the examiner concluded that the both the Veteran's FEV-1 and DLCO in the July 2016 testing is indicative of mild reduction. Analysis Based on the foregoing, the Board finds that a rating of 30 percent is warranted for the entire period on appeal. Pulmonary function testing was performed twice in 2003. The results of testing performed in June 2003 fell within the range contemplated by a 10 percent rating. Similarly, testing performed in September 2003 showed a normal DLCO and an FEV-1 level that fell within the range contemplated by the 10 percent rating. However, the Veteran's FEV-1/FVC ratio signified additional limitation. The Code contemplates a 30 percent rating for an FEV-1/FVC level of 56 to 70 percent and the Veteran's FEV-1/FVC ratio was 65 percent both for pre and post bronchodilator. Although the pulmonologist concluded that the test findings were probably due to mild obstructive pulmonary disease, she did not express an opinion as to which of the readings most accurately represents the Veteran's disability level. Additionally, the findings from pulmonary function testing performed in July 2016 also align with a 30 percent rating, despite the conclusion by the examiner that the Veteran only has mild impairment. At this time, the Veteran's DLCO was 63 percent, which falls within the range contemplated by the 30 percent rating. Conversely, his FEV-1 and FEV-1/FVC were 85 and above, which falls within the range contemplated by the 10 percent rating. The July 2016 VA examiner concluded that the FEV-1 level most accurately reflected the Veteran's current disability. However, she did not provide a rationale for her conclusion and an April 2021 VA examiner noted in an addendum opinion that the Veteran's DLCO and FEV-1 from the July 2016 equally represent mild impairment. Thus, it is reasonable to conclude that the Veteran's COPD has caused impairment that most aligns with a 30 percent rating, despite the fact that his condition has consistently been labeled as mild during the appeal period. Resolving reasonable doubt in the Veteran's favor, the Board finds that a disability rating of 30 percent is warranted effective November 1, 2003. 4. Entitlement to a TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 in arriving at a conclusion, but not to his or her age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Veteran is service connected for onchomycosis (fungus of the toes) rated 30 percent disabling, COPD rated 30 percent disabling, a low back disorder rated 20 percent disabling, left and right knee disabilities rated at 10 percent each for instability and painful motion, tinnitus rated 10 percent disabling, fibromyalgia rated as 10 percent disabling, and hemorrhoids, an eye condition, a scar on the finger, and several skin conditions all rated as noncompensable. In the Veteran's case, the threshold rating criteria for consideration of a TDIU under 38 C.F.R. § 4.16 (a) are met, pursuant to section 4.16(a), the combined evaluation of bilateral lower extremities can serve as the required 40 percent rating for a single disability. Given the Board's award of separate 10 percent ratings for instability and painful motion for the Veteran's right and left knees, the combined rating for these lower extremity disabilities constitutes a single disability rated at 40 percent. Moreover, his total combined rating is greater than 70 percent. At the outset, the Board notes that the Veteran has not completed and returned the VA Form 21-8940, Application for a TDIU. In the absence of the information contained therein, the Board must rely on the evidence of record to render its decision. Throughout the record the Veteran has maintained that he cannot work due to his back and knees. In an application for disability with SSA, the Veteran reported that he last worked in August 2010. A letter of resignation for this employment is on file, in which the Veteran indicated that he was working the equivalent of one part-time and two fulltime jobs at an assisted living facility. In addition to this evidence, July 2016 and September 2016 VA examiners concluded that the Veteran's fibromyalgia, lumbar disability, knee disability, and COPD did not impact his ability to work. At this time, the Veteran reported numerous physical limitations due to each condition. However, he also reported that he was independent with activities of daily living, driving, grocery shopping, and cooking. In addition, he reported that he could use a self-propelled mower for up to an hour at a time. He further indicated that he maintained numerous jobs before retiring, which included a custodian for 11 months and a truck loader for one year. Furthermore, the Board notes that new VA examinations were ordered in October 2017 and March 2019 to assess the nature and severity of his lumbar and knee disabilities, but the Veteran canceled them on both occasions. The Veteran's refusal to attend these examinations supports a conclusion that his lumbar and knee disabilities have not worsened since 2016. Moreover, the April 2021 VA examiner concluded that the Veteran's COPD would not preclude employment, especially in a sedentary capacity. Based on the evidence of record, there is no basis to conclude that the Veteran is unemployable based solely on his service-connected disabilities. There is no evidence to indicate that he is limited to purely sedentary activity, and even if the 2021 COPD examination is interpreted to support this conclusion, there is no basis for a determination that he cannot perform a sedentary job. For the foregoing reasons, the Board finds the preponderance of the evidence weighs against finding the Veteran's service-connected disabilities render the Veteran unemployable. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.