Citation Nr: 21063486 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-10 232A DATE: October 14, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to January 16, 2014, for emphysema with chronic obstructive pulmonary disease (COPD) and residuals of spontaneous pneumothorax, is denied. Entitlement to an initial disability rating of 30 percent and no higher, for emphysema with chronic obstructive pulmonary disease (COPD) and residuals of spontaneous pneumothorax (pulmonary disabilities), from January 16, 2014, and no earlier, is granted. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine, prior to February 13, 2019, is denied Entitlement to an initial disability rating of 20 percent for degenerative disc disease of the lumbar spine (back disability), from February 13, 2019, and no earlier, is granted. FINDINGS OF FACT 1. Prior to January 16, 2014, the evidence of record does not show that the Veteran's emphysema with chronic obstructive pulmonary disease (COPD) and residuals of spontaneous pneumothorax disability resulted in an FEV-1 of 56 to 70 percent predicted; or, FEV-1/FVC of 56 to 70 percent; or, DLCO (SB) 56 to 65 percent predicted. 2. Resolving reasonable doubt in the Veteran's favor, diagnostic testing conducted on January 16, 2014 showed the Veteran's emphysema with chronic obstructive pulmonary disease (COPD) and residuals of spontaneous pneumothorax disability had changed in severity, and diagnostic testing noted in following examinations showed the Veteran's post-bronchodilator FEV-1 was less than 71 percent. 3. The evidence of record does not support the finding that the Veteran's degenerative disc disease of the lumbar spine resulted in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during a 12-month period; or that his spine disability has resulted in 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, that he has experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, prior to February 13, 2019. 4. Resolving reasonable doubt in the Veteran's favor, the Board finds that February 13, 2019 is the earliest date that it was ascertainable that the Veteran's degenerative disc disease of the lumbar spine disability had changed in severity, as the medical records show that he reported a worsening of his condition on that date, and a following VA examination in June 2019 revealed the Veteran's forward flexion was limited to 40 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for emphysema with chronic obstructive pulmonary disease (COPD) and residuals of spontaneous pneumothorax, prior to January 16, 2014, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3-4.7, 4.27, 4.97, DC 6604-6603. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial disability rating of 30 percent for emphysema with chronic obstructive pulmonary disease (COPD) and residuals of spontaneous pneumothorax, from January 16, 2014, and no earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3-4.7, 4.27. 4.97, DC 6604-6603. 3. The criteria for entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior February 13, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5243. 4. The criteria for entitlement to an initial rating of 20 percent, and no higher, for degenerative joint disease of the lumbar spine from February 13, 2019, and no earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to January 1972, from September 1990 to September 1991, from October 1991 to September 1992, from October 1992 to July 1994, and from July 1994 to April 2010, with additional service in the Army Reserves. This matter comes before the Board of Veteran's Appeals (Board) from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently before the Board in August 2020 when the claims were remanded for development. The Board finds the August 2020 remand directives have been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of the appeal, the Veteran's disability ratings for the matters on appeal were increased in an April 2020 rating decision. As the higher disability ratings did not constitute a full grant of the benefits sought, the matters remain on appellate status. AB v. Brown, 6 Vet. App. 35 (1993). It is noted that in an April 2019 statement, the Veteran requested his case to be processed as soon as possible as his wife was terminally ill. See statement of April 2019. This request is interpreted as a motion to have his case advanced on the docket (AOD) pursuant to 38 C.F.R. § 20.902. Unfortunately, the Board finds that AOD at this time is not warranted, as the evidence of record does not show sufficient grounds for advancement, such as the Veteran's age being 75 years or more, that he is seriously ill or that he is under severe financial hardship. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial disability rating in excess of 10 percent prior to June 11, 2019 and in excess of 30 percent thereafter for emphysema with chronic obstructive pulmonary disease (COPD) and residuals of spontaneous pneumothorax (pulmonary disabilities) The Veteran seeks an initial disability rating in excess of 10 percent prior to June 11, 2019 and in excess of 30 percent thereafter for his pulmonary disabilities. As this appeal stems from the initial rating assigned to his pulmonary disabilities, the appeal period before the Board is from May 1, 2010, the effective date of the award of service connection, forward. For the reasons explained below the Board finds that a disability rating in excess of 10 percent prior to January 16, 2014 is not warranted and that a disability rating of 30 percent and no higher is warranted from January 16, 2014, forward, for the Veteran's pulmonary disabilities. It is noted that this matter has been remanded by the Board two times for development. In June 2018, the Board remanded the matter to obtain outstanding medical records and to obtain an updated VA examination- to determine the severity of the Veteran's pulmonary disabilities at the time. The Board also requested the examiner to discuss the adequacy of 2 private examinations reports, dated 2014, provided by the Veteran. Pursuant to the Board's remand directives, in March 2019, the RO requested the Veteran to complete the necessary authorizations to allow VA to request private medical records pertinent to his claim. See VA letter of March 2019. In April 2019, the Veteran provided the authorization, however, he only identified VA as his medical care provider and did not identify any private medical care provider. In June 2019, the Veteran was administered a Respiratory Conditions Disability Benefits Questionnaire (Respiratory DBQ) where, among other things, the examiner discussed the adequacy of the 2 private examinations reports provided by the Veteran. As such, the Board finds the June 2018 remand directives have been substantially complied with. Most recently, in August 2020, the Board remanded the matter again. The Board requested the RO to attempt to contact, with any necessary permission and/or assistance from the Veteran, the authors of the 2 private examinations reports provided. The RO was to obtain the complete post-bronchodilator results from the testing noted in the examinations reports of 2014 or otherwise to request the authors to provide an explanation regarding why the complete post-bronchodilator results were not available and to request any other available treatment records. Pursuant to the Board remand directive, in November 2020, the RO requested the Veteran to provide the necessary authorizations so that they could contact the authors of the 2 private examinations or to otherwise submit the information (i.e. the complete post-bronchodilator results). See VA letter of November 2020. The Veteran did not provide the requested authorizations, and the RO was unable to obtain the complete post-bronchodilator results as requested by the Board. The Board finds that the RO's attempt to obtain the necessary authorizations from the Veteran substantially complied with the Board's directive. The duty to assist is not boundless in its scope and only requires VA to make reasonable efforts to assist a claimant in obtaining relevant private records that the claimant adequately identifies. See 38 U.S.C. § 5103A. As the Veteran did not provide the requested authorizations for VA to obtain the complete post-bronchodilator results or any outstanding private medical record, no further development was warranted pursuant to the duty to assist. 38 C.F.R. § 3.159 (c)(1). The Veteran's service-connected pulmonary disabilities of emphysema with COPD and residuals of a spontaneous pneumothorax are rated collectively under diagnostic codes 6604-6603. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Diagnostic Code 6603 pertains to pulmonary emphysema and provides for a 10 percent evaluation when the FEV-1 is 71 to 80 percent predicted, or; FEV-1/FVC is 71 to 80 percent, or; DLCO (SB) is 66 to 80 percent predicted. A 30 percent evaluation is warranted for FEV-1 of 56 to 70 percent predicted; or, FEV-1/FVC of 56 to 70 percent; or, DLCO (SB) 56 to 65 percent predicted. A 60 percent evaluation is warranted for FEV-1 of 40 to 55 percent predicted; or, FEV-1/FVC of 40 to 55 percent; or, DLCO (SB) of 40 to 55 percent predicted; or, maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value; or, FEV-1/FVC less than 40 percent; or, DLCO (SB) less than 40 percent predicted; or, maximum exercise capacity 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. COPD is rated under Diagnostic Code 6604, which provides for a 10 percent evaluation when the FEV-1 is 71 to 80 percent predicted, or; FEV-1/FVC is 71 to 80 percent, or; DLCO (SB) is 66 to 80 percent predicted. A 30 percent evaluation for FEV-1 of 56 to 70 percent predicted; or, FEV-1/FVC of 56 to 70 percent; or, DLCO (SB) 56 to 65 percent predicted. A 60 percent evaluation is warranted for FEV-1 of 40 to 55 percent predicted; or, FEV-1/FVC of 40 to 55 percent; or, DLCO (SB) of 40 to 55 percent predicted; or, maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value; or, FEV-1/FVC less than 40 percent; or, DLCO (SB) less than 40 percent predicted; or, maximum exercise capacity 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. See 38 C.F.R. § 4.97, diagnostic codes 6603, 6604. As an important matter, it is noted that the rating schedule explicitly limits how disability ratings for coexisting respiratory/pulmonary conditions may be combined. In pertinent part, the applicable regulation states that, ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a); Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). Thus, while the Veteran has diagnoses of emphysema and COPD, with residuals of a spontaneous pneumothorax; VA may only assign a single disability rating for the coexisting respiratory/pulmonary conditions. Additionally, it is noted that post-bronchodilator findings are the standard in pulmonary assessment for rating purposes. Post-bronchodilator studies are required, and will be used for rating purposes, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, or when the examiner determines that post-bronchodilator results should not be used and states why. 38 C.F.R. § 4.96 (d)(4), (5). In addition, "[w]hen there is a disparity between the results of different pulmonary function tests (PFT)... so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability." 38 C.F.R. § 4.96 (d)(6). The term FEV-1 means "Forced Expiratory Volume in one second;" the term FVC means "Forced Vital Capacity;" and the terms DLCO (SB) means "Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method." The Veteran's post-service medical records have been associated with the claims file. In March 2011, the Veteran was provided a general examination for his claims. In pertinent part, the examiner noted the Veteran's lung condition that had resulted in a visit to the emergency room due to sudden onset of right-sided chest pain and mild dyspnea. The Veteran was diagnosed with a right pneumothorax and transferred to another medical facility where he underwent a surgical intervention as treatment for the condition. The Veteran was promptly discharged from the hospital. At the examination, the Veteran reported that since the surgery, he had some discomfort at the incision site which increased with coughing or deep breaths. He also reported that the surgeon had associated the pain with muscular pain as some of the muscles had been cut in the surgery. Beside this report of pain with coughing and deep breaths associated with the surgery, the Veteran reported no other respiratory symptom. See VA examination of March 2011. This examination report did not include any pulmonary testing findings. In August 2011, the Veteran was administered a Respiratory DBQ, including pulmonary function testing. In pertinent part, the examiner noted the results of the pulmonary function tests as follows: pre-bronchodilator FVC of 102 percent predicted, FEV-1 of 82 percent predicted, FEV-1/FVC of 80 percent, and DLCO of 67 percent predicted; and, post-bronchodilator FVC of 107 percent, FEV-1 of 88 percent, and FEV-1/FVC of 82 percent. The examiner did not explicitly note in the report which of the pulmonary function test results better reflected the Veteran's disability at the time. Nonetheless, as the examination report contains the necessary pulmonary function test results, the Board finds this examination adequate and assigns it high probative value. The Veteran submitted a Respiratory DBQ, completed by a private provider in February 2014. See Respiratory DBQ of February 2014. In pertinent part, the provider noted that pulmonary function testing had been performed and reflected the Veteran's current pulmonary function. The date of the test was noted as January 2014, and the results were noted as follow: pre-bronchodilator FVC of 101 percent predicted, FEV-1 of 69 percent predicted, FEV-1/FVC of 54 percent, and DLCO of 67 percent predicted. It is noted that this report only included the post-bronchodilator results for FEV-1 of 87 percent predicted. No post-bronchodilator results for FVC or FEV-1/FVC were noted. However, the examiner did note that the FEV-1 results most accurately reflected the Veteran's level of disability. See Respiratory DBQ of February 2014. In November 2014, the Veteran submitted another Respiratory DBQ, completed by a private provider in October 2014. In pertinent part, the provider noted that pulmonary function testing had been performed and reflected the Veteran's current pulmonary function. The date of the test was noted as June 2014, and the results were noted as follow: pre-bronchodilator FVC of 100 percent predicted, FEV-1 of 69 percent predicted, FEV-1/FVC of 55 percent, and DLCO of 75 percent predicted. This DBQ only included the post-bronchodilator results for FEV-1 of 69 percent, predicted. No post-bronchodilator results for FVC or FEV-1/FVC were noted. However, the examiner did note that the FEV-1 results most accurately reflected the Veteran's level of disability. See Respiratory DBQ of October 2014, associated with the claims file in November 2014. In June 2019, the Veteran was administered a Respiratory DBQ, including pulmonary function tests. In pertinent part, the examiner noted the results of the pulmonary function tests as follows: pre-bronchodilator FVC of 103 percent predicted, FEV-1 of 59 percent predicted, FEV-1/FVC of 45 percent, and DLCO of 80 percent predicted; and, post-bronchodilator FVC of 112 percent predicted, FEV-1 of 68 percent predicted, and FEV-1/FVC of 48 percent predicted. The examiner noted that the FEV-1 results most accurately reflected the Veteran's level of disability. Additionally, the examiner opined that the Respiratory DBQs of February 2014 and October 2014 were adequate, as the documented information was congruent with the medical records. See Respiratory DBQ of June 2019. The Board finds this examination adequate and affords it high probative value. Based on the above the Board finds that resolving reasonable doubt in the Veteran's favor, his pulmonary disability warrants the following staged ratings: a 10 percent disability rating, and no higher, prior to January 16, 2014 and a 30 percent disability rating, and no higher, thereafter. As a threshold matter it is acknowledged that the Respiratory DBQs of February 2014 and October 2014 did not include the complete results of the pulmonary function tests of January 16, 2014 and June 2014. Further, it is noted that attempts by the RO to obtain the necessary authorizations from the Veteran to obtain the complete results were unsuccessful. Nonetheless, the private providers that subscribed the Respiratory DBQs of February 2014 and October 2014, noted that the FEV-1 results more accurately reflected the Veteran's level of disability. Additionally, the VA examiner that subscribed the June 2019 Respiratory DBQ determined that the FEV-1 results more accurately reflected the Veteran's level of disability and further opined that the results noted in the Respiratory DBQ of February 2014 were adequate and consistent with the medical records. Thus, the Board will consider the Respiratory DBQs of February 2014 and October 2014 adequate for adjudication purposes in light of the above, and in further view of 38 C.F.R. § 4.96 (d)(6) that directs the rating official to use the test result that the examiner states most accurately reflects the level of disability for rating purposes. As previously noted, in order for the Veteran's pulmonary disabilities to warrant an initial disability rating in excess of 10 percent, the evidence of record would need to show that pulmonary function testing revealed post-bronchodilator results within the following ranges: FEV-1 of 56 to 70 percent predicted; or, FEV-1/FVC of 56 to 70 percent; or, DLCO (SB) 56 to 65 percent predicted. Here, the evidence of record does not support the finding that prior to January 16, 2014; the Veteran's pulmonary disabilities resulted or manifested with post- bronchodilator FEV-1 of 56 to 70 percent predicted; or, FEV-1/FVC of 56 to 70 percent; or, DLCO (SB) 56 to 65 percent predicted. Thus, a disability rating in excess of 10 percent prior to January 16, 2014, is not warranted. In reaching this conclusion, the Board considered the Veteran's surgical treatment for his condition in 2011. However, as the Veteran's surgical treatment and hospitalization did not exceed a period of 21 days and since the evidence of record does not show that the Veteran was confined to bed/house, that he unable to work and required frequent care of physician or nurse at home following his discharge, that he required at least one month of convalescence, or that the surgery had severe postoperative residuals, the provisions of 38 C.F.R. § 4.29 and 4.30 are not for application. On January 16, 2014, the Veteran was administered a pulmonary function test that revealed a pre-bronchodilator FEV-1 of 69 percent, and a post-bronchodilator FEV-1 of 87 percent, as noted in the Respiratory DBQ of February 2014. These test results, on their own, are not consistent with a disability rating in excess of 10 percent, as the post-bronchodilator FEV-1 result was 87 percent. However, these test results do support the finding that the Veteran's disability had changed, when compared to the tests noted in the previous Respiratory DBQ of August 2011. Then, in June 2014, the Veteran was administered another pulmonary function test that revealed a pre-bronchodilator FEV-1 of 69 percent, and a post-bronchodilator FEV-1 of 69 percent, as noted in the Respiratory DBQ of October 2014. A post-bronchodilator FEV-1 of 69 percent is consistent with a disability rating of 30 percent. Additionally, in June 2019, the Veteran was administered a pulmonary function test that revealed a pre-bronchodilator FEV-1 of 59 and a post-bronchodilator FEV-1 of 68 percent, which are findings consistent with a disability rating of 30 percent. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that a 30 percent disability rating is warranted for the Veteran's pulmonary disabilities from January 16, 2014, forward. It is noted that January 16, 2014 is the earliest date shown by the evidence of record when an increase in disability could be ascertained, as later confirmed by diagnostic testing in June 2014, as noted in the Respiratory DBQ of October 2014. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained); see also 38 C.F.R. § 3.400. The evidence of record for the period prior to January 16, 2014, does not provide any other probative evidence pertaining to a worsening of the Veteran's symptoms or diagnostic testing results that would warrant a disability rating in excess of 10 percent prior to January 16, 2014. A disability rating in excess of 30 percent from January 16, 2014, is not warranted as the evidence of record does not show that at any time during this period the Veteran's pulmonary disabilities have manifested or resulted in an FEV-1 of 40 to 55 percent predicted; or, FEV-1/FVC of 40 to 55 percent; or, DLCO (SB) of 40 to 55 percent predicted; or, that the Veteran has had a maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Additionally, the available records do not show that the Veteran has at any time during the pendency of the appeal been diagnosed with cor pulmonale (right heart failure), right ventricular hypertrophy, or pulmonary hypertension. Moreover, the records do not show that the Veteran has experienced an episode of acute respiratory failure or that he has required outpatient oxygen therapy at any time during the appeal period. Thus, a disability rating in excess of 30 percent from January 16, 2014, forward, is not warranted. In reaching this conclusion, the Board has considered the Veteran's lay statements in favor of a higher disability rating, to include the statement of March 2014 handwritten notes on the SOC, associated with the claims file in April 2015, and statements of November 2016 and April 2019. In the statement of March 2014, the Veteran noted needing/using inhalers daily and that he has difficulty breathing when lifting objects and after a flight of stairs. See statement of March 2014. While the Veteran is competent to report his symptomatology, the Board is unable to find that the reported symptomatology warrants a higher disability rating than the ones assigned, as the rating schedule provides the disability rating for pulmonary conditions based on pulmonary function test results. 2. Entitlement to an initial disability rating in excess of 10 percent for his lumbar spine disability prior to June 11, 2019 and in excess of 20 percent thereafter The Veteran seeks an initial disability rating in excess of 10 percent for his lumbar spine disability prior to June 11, 2019 and in excess of 20 percent thereafter. As this appeal stems from the initial rating assigned to his lung disabilities, the appeal period before the Board is from May 1, 2010, the effective date of the award of service connection, forward. For the reasons explained below, the Board finds that a disability rating of 20 percent, and no higher, from February 13, 2019, and no earlier, is warranted. The Veteran's lumbar spine disability is rated under diagnostic code 5243. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for 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; or, vertebral body fracture with loss of 50 percent or more of the height. 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. This matter has been previously remanded by the Board twice. In June 2018, the Board remanded the claim for a new examination, as the evidence of record showed the Veteran had reported his disability had worsened. In June 2019, the Veteran was administered a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (Back DBQ). Thus, to the extent the Veteran was provided an examination, the Board finds the June 2018 remand directives were substantially complied with. Then, in August 2020, the Board remanded the matter again to obtain an addendum opinion from the examiner that administered the June 2019 Back DBQ. The examiner was to explain why passive range of motion testing for the Veteran's lumbar spine disability could not be performed. In May 2021 the Veteran was administered another Back DBQ and the examiner explained that passive range of motion testing was not performed because it would be physically impossible to perform and the risk of harm to the examiner and the Veteran outweighed the benefits from additional measurements that would not have contributed to the exam findings. See Back DBQ and medical opinion regarding conflicting medical evidence of May 2021. Accordingly, the Board finds the August 2020 remand directives have been substantially complied with. The Veteran's post-service medical records have been associated with the claims file. A letter by the Veteran's non-VA healthcare provider, dated August 2010, noted that the Veteran had a history of chronic low back pain since at least the year 2008, and that his back pain radiated down his left leg. See letter of August 2010, associated with the claims file in April 2011. In March 2011, the Veteran was examined for his claims, including his back disability. In pertinent part, the examiner noted the Veteran's report of daily low back pain with flares. The Veteran described his flares-ups as occurring approximately twice weekly, lasting anywhere from hours to the rest of the day, precipitated by overuse and lifting but also occurring randomly. The Veteran also reported that during flares, his back felt stiffer, harder to move and harder to fully straighten up. The Veteran reported no incapacitating episodes of spinal pain, nor any associated bowel or bladder symptoms. He did report some rare off-and-on numbness in the right leg but no shooting pain or other symptom suggestive of lumbar radiculopathy. The physical examination of the Veteran's back revealed no tenderness to palpation nor any obvious spasm of the paraspinal muscles. Straight leg raising test was negative bilaterally. The Veteran's range of motion of the lumbar spine was noted as follows: forward flexion from zero to 90 degrees, extension from zero to 25 degrees, right lateral flexion from zero to 10 degrees, left lateral flexion from zero to 20 degrees, right lateral rotation from zero to 25 degrees, left lateral rotation from zero to 25 degrees. Discomfort was noted with motion testing and increased discomfort was noted with 3 repetitions. However, no functional loss was noted following the 3 repetitions. The examiner also opined that based on the examination and the Veteran's history, his range of motion during a flare with pain and spasms, could be feasibly expected to be reduced by 5 to 10 degrees of flexion and extension, and an additional 5 to 10 degrees of right and left lateral flexion and rotation. Additionally, the examiner noted that while the Veteran had reported some symptoms suggestive of right lumbar radiculopathy; that the examination revealed no objective evidence to support a diagnosis of radiculopathy to the lower extremities. See VA examination of March 2011. The Veteran's VA medical records show that he has sought medical treatment for back pain throughout the appeal period and has been prescribed medication to manage the pain. See medical records for August 2012, March 2013, April 2016, January 2017, and February 2019. It is noted that in August 2012, the Veteran reported that his low back pain radiated up to his thoracic spine. In March 2013, the Veteran reported that his pain radiated to his left lower extremity. See VA medical records for August 2012 and March 2013. In April 2016, the Veteran reported that his low back pain was localized but that sometimes it radiated to his left knee and leg. Objective findings pertinent to the Veteran's low back noted he had a normal gait, limited forward bending, and a tender area localized to the lumbo-sacral junction. The physician did not note any specific range of motion in terms of degrees. See medical records for April 2016. In July 2016, the Veteran again sought treatment for his back pain, he reported no changes related to his bowel or bladder and reported the pain did not radiate to lower extremities but did radiate to his upper back. The examiner noted the Veteran's back pain was due to muscle spasms and prescribed an injection to relieve the pain. See VA medical records for July 2016. In February 2019, the Veteran sought medical care for his low back pain and reported the condition was getting worse. See VA medical records for February 2019. The medical records for this date do not note any specific range of motion measurements or impaired range of motion for the spine. In June 2019, the Veteran was administered a Back DBQ. In pertinent part, the Veteran reported as his current symptom localized pain to the lower back. The examiner also noted his report of flareups with physical activity such as bending over. The Veteran reported that the pain from the flare will last momentary with no decreased range of motion. He also reported he rests or takes a break for a few minutes. The Veteran's initial range of motion for his back was noted as follows: forward flexion from zero to 40 degrees, extension from zero to 30 degrees, right lateral flexion from zero to 10 degrees, left lateral flexion from zero to 10 degrees, right lateral rotation from zero to 20 degrees, and left lateral rotation from zero to 20 degrees. Pain with all of the motions was noted on the examination and caused functional loss. The Veteran was able to complete at least 3 repetitions with no additional loss of function or range of motion. As to repeated use over time and function during flares, the examiner noted that the Veteran's pain limited his functional ability with repeated use over a period of time and during flares. The examiner described such limitation in terms of range of motion as follows: forward flexion from zero to 40 degrees, extension from zero to 30 degrees, right lateral flexion from zero to 10 degrees, left lateral flexion from zero to 10 degrees, right lateral rotation from zero to 20 degrees, and left lateral rotation from zero to 20 degrees. The Veteran also performed straight leg raising test which revealed negative results bilaterally. The examiner determined that the Veteran did not have radiculopathy symptoms. See Back DBQ of June 2019. It is noted that the range of motion measurements provided for functional limitation after repeated use over time and during flareups, are the same measurements reported for the Veteran's initial range of motion. It seems the examiner based these findings on the Veteran's description of his symptomatology pertaining to physical activity resulting in increased pain with no decreased range of motion, as noted in the report. In May 2021, the Veteran was re-administered a Back DBQ. In this examination, the Veteran reported as to current symptoms: low back pain on a daily basis, increased with standing and with activity such as walking or going up a flight of stairs. He also reported being unable to lift anything weighing more than 10 to 15 pounds and the daily baseline of pain level was reported as a 7 in a scale of 1 to 10. The examiner determined that the Veteran did not report flare-ups of his spine disability. The Veteran's initial range of motion for his back was noted as follows: forward flexion from zero to 45 degrees, extension from zero to 20 degrees, right lateral flexion from zero to 15 degrees, left lateral flexion from zero to 15 degrees, right lateral rotation from zero to 15 degrees, and left lateral rotation from zero to 15 degrees. Pain with all of the motions was noted on the examination and caused functional loss. Passive range of motion testing was not performed as it was medically contraindicated (it would cause the Veteran severe pain or risk further injury). No additional loss of function or range of motion was noted after 3 repetitions, after repeated use over time, nor during flares. No guarding or muscle spasms were noted. The Veteran also performed straight leg raising test which revealed negative results bilaterally. The examiner determined that the Veteran did not have radiculopathy symptoms. See Back DBQ of May 2021. Based on the above, the Board finds that a disability rating in excess of 10 percent prior to February 13, 2019, and in excess of 20 percent, thereafter, is not warranted. As previously noted, in order for the Veteran's low back disability to warrant a disability rating in excess of 10 percent, the evidence of record would need to show that he had incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during a 12-month period; or that his spine disability has resulted in 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, that he has experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Here, the evidence shows that while the Veteran consistently reported back pain and sought medical care for his condition, at no point during the appellate period prior to February 13, 2019, was his back disability noted to have resulted in an incapacitating episode lasting more than 2 weeks, or that his forward flexion was limited to less than 60 degrees, or that his combined range of motion of the thoracolumbar spine was less than 120 degrees. Additionally, medical records do not note muscle spasms or guarding severe enough to result in an abnormal gait or an abnormal spinal contour. Thus, the Board finds the preponderance of the evidence is against finding the Veteran's back disability warranted a disability rating in excess of 10 percent prior to February 13, 2019. In reaching this conclusion the Board has considered the medical records, to include the records of April 2016 noting that the Veteran had limited forward flexion and the records for July 2016 noting back pain due to muscle spasms. However, as the April 2016 records do not contain any range of motion testing or measurements in terms of degrees, the Board is unable to find that the noted "limited forward flexion" was consistent with a disability rating in excess of 10 percent. Additionally, medical records after April 2016 do not note limited forward flexion. Further, the Board has considered the July 2016 medical records noting muscle spasms, however as the records do not show the muscle spasm resulted in an abnormal gait or in an abnormal spinal contour, the Board is unable to find that this note is consistent with a disability rating in excess of 10 percent. Medical records following July 2016 do not show range of motion measurements that would be consistent with a disability rating in excess of 10 percent or other annotations that would support the finding that the Veteran's limited forward flexion of April 2016 was the same or similar to the forward flexion measurements in the Back DBQ of June 2019. As such, a disability rating in excess of 10 percent prior to February 13, 2019 is not warranted. Medical records for February 2019, note that the Veteran reported a worsening of his back condition. However, this record does not contain any range of motion measurements or any other finding consistent with a disability rating in excess of 10 percent. Nonetheless, the Back DBQ of June 2019 revealed range of motion measurements consistent with a 20 percent disability rating, as the Veteran's forward flexion was noted to be limited to 40 degrees, including during flares or after repetitive motions. Resolving reasonable doubt in the Veteran's favor, the Board finds that February 13, 2019 is the earliest date shown by the evidence of record when an increase in disability could be ascertained, as later confirmed by diagnostic testing as noted in the Back DBQ of June 2019. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained); see also 38 C.F.R. § 3.400. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that a disability rating of 20 percent is warranted from February 13, 2019, forward. The evidence of record for the period prior to February 13, 2019, does not provide sufficient evidence pertaining to a worsening of the Veteran's symptoms or diagnostic testing results that would warrant a disability rating in excess of 10 percent prior to February 13, 2019. In reaching this conclusion, the Board has considered the evidence of record for the period prior to February 2019 noting the Veteran's complaints of pain and at times his report of his pain worsening. However, as these reports do not show any contemporaneous range of motion measurements or any other finding consistent with a disability rating in excess of 10 percent, the Board is unable to find that the disability warranted a disability rating in excess of 10 percent prior to February 13, 2019. Finally, the Board finds the evidence of record does not show that the Veteran's back disability has warranted a disability rating in excess of 20 percent from February 13, 2019, forward. Notably, in order for the back disability to warrant a disability rating in excess of 20 percent during this period, the evidence of record would need to show that the Veteran's back disability resulted in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period, or that forward flexion of the thoracolumbar spine has been limited to 30 degrees or less; or, that the Veteran has been diagnosed with favorable ankylosis of the entire thoracolumbar spine. However, such is not the case, as the evidence of record shows the Veteran has not had an incapacitating episode due to his back disability lasting at least 4 weeks, that his forward flexion has been limited to 30 degrees or less, or that he has been diagnosed with favorable ankylosis. Thus, a disability rating in excess of 20 percent from February 13, 2019, forward, is not warranted for the back disability. (Continued on the next page) The Board has also considered the various competent reports from the Veteran regarding occasional radiating pain as noted in the medical records. The reported radiating pain has not been diagnosed as radiculopathy to the lower extremities by any physician. Additionally, the Veteran's medical records do not show any objective evidence pertaining to any neurological abnormality associated with his back disability. Thus, in the absence of objective evidence pertaining to a neurological abnormality associated with the Veteran's back pain, no separate disability rating is warranted for the subjective reports of radiating pain pursuant to 38 C.F.R. § 4.71a, note 1. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.