Citation Nr: 21070517 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-57 930 DATE: November 24, 2021 ORDER The claim of entitlement to a disability rating in excess of 10 percent for chronic obstructive pulmonary disease (COPD) is denied. REMANDED The claim of entitlement to service connection for a low back disorder is remanded. The claim of entitlement to a disability rating in excess of 10 percent for service-connected left knee strain is remanded. The claim of entitlement to a disability rating in excess of 10 percent for left knee instability is remanded. FINDING OF FACT The Veteran's COPD has not been manifested by FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) of 56 to 65 percent predicted. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for COPD have not been met 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Code 6604. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from August 1988 to January 1992. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In March 2021, the claims were remanded for additional development. While on remand, in August 2021, the AOJ granted a separate 10 percent rating for left knee instability, effective August 4, 2021. While the Veteran has not entered a notice of disagreement as to the propriety of the assigned rating for his left knee instability, the Board has assumed jurisdiction over such matter as part and parcel of the claim for an increased rating for the left knee strain. Therefore, despite the increased disability rating, the Veteran's appeal remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Accordingly, the issue remains in appellate status. The Board has characterized the issue on appeal accordingly. Entitlement to a disability rating in excess of 10 percent for COPD. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. The Veteran's COPD is rated pursuant to Diagnostic Code 6604. A 10 percent rating is warranted for forced expiratory volume in one second (FEV-1) of 71- to 80-percent predicted, or; the ratio of forced expiratory volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 66- to 80-percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6604. A 30 percent rating is warranted for FEV-1 of 71 to 80-percent predicted value, or; FEV-1/FVC of 71 to 80 percent, or; 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. Id. A 60 percent rating 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). Id. 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. Id. When evaluating based on pulmonary function tests (PFTs), post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. 38 U.S.C. § 4.96(d)(5). When there is a disparity between the results of different pulmonary function tests (FEV-1, FVC, etc.), 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 April 2012 VA examination report showed that the Veteran used inhalational bronchodilator therapy and inhalational anti-inflammatory medication daily to treat his COPD. He also used albuterol three times per day as needed for his symptoms. The examiner stated that his COPD impacted his ability to work only if he was around smoky areas or chemicals. Pre-bronchodilator PFTs were FVC of 114 percent predicted; FEV-1 of 126 percent predicted; FEV-1/FVC of 86 percent; and DLCO of 115 percent predicted. Post-bronchodilator PFTs were FVC of 112 percent predicted; FEV-1 of 129 percent predicted; FEV-1/FVC of 90 percent. The impression was a normal complete PFT and DLCO. At the time of the July 2017 VA examination, the Veteran reported using two inhalers as needed, mainly for shortness of breath when exposed to certain chemicals and when engaging in physical activities, such as walking uphill or going up two flights of stairs. He used both inhalational bronchodilator therapy and inhalational anti-inflammatory medication intermittently, as well as albuterol. Pre-bronchodilator PFTs were FVC of 115 percent predicted; FEV-1 of 127 percent predicted; FEV-1/FVC of 110 percent; and DLCO of 118 percent predicted. Post-bronchodilator PFTs were FVC of 113 percent predicted; FEV-1 of 131 percent predicted; FEV-1/FVC of 116 percent. The examiner stated that the FEV-1 percent predicted most accurately reflected the Veteran's level of disability. During the August 2021 VA examination, the Veteran reported occasional dyspnea. He described mild impairment due to some dyspnea on exertion with exposure to certain chemicals and smoke, which limited vigorous activities when exposed to these chemicals. He used inhalational bronchodilator therapy intermittently and an albuterol inhaler as needed. Pre-bronchodilator PFTs were FVC of 109 percent predicted; FEV-1 of 125 percent predicted; FEV-1/FVC of 114 percent; and DLCO of 80 percent predicted. Post-bronchodilator PFTs were FVC of 110 percent predicted; FEV-1 of 129 percent predicted; FEV-1/FVC of 117 percent. The examiner stated that the FEV-1 percent predicted most accurately reflected the Veteran's level of disability. After a review of all the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted at any point during the appeal period. The PFTs conducted during the appeal period do not demonstrate that the Veteran's COPD disorder was manifested by FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) of 56 to 65 percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6604. The Board acknowledges the Veteran's November 2017 statement that the VA examiners completed the PFTs multiple times to get a proper reading and that the VA examiners disregarded poorer test results. A review of the examination reports does not suggest that the examination results are inadequate. The Board also points out that VA regulations require both pre-bronchodilator and post-bronchodilator PFTs and that post-bronchodilator results are used in applying the evaluation criteria unless the post-bronchodilator results were poorer than the pre-bronchodilator results. See 38 U.S.C. § 4.96(d). Therefore, the Board finds that the VA examinations are adequate. Accordingly, the preponderance of the evidence weights against finding that a rating in excess 10 percent is warranted. REASONS FOR REMAND 1. The claim of entitlement to service connection for a low back disorder is remanded. The Board finds that an addendum opinion is required to fully address whether the Veteran's back disorder was caused or aggravated by his service-connected bilateral knee disorder. The August 2021 VA examiner opined that that the Veteran's back disorder was less likely than not proximately due to or the result of his service-connected knee disorders. The rationale was that the Veteran's knee issues started during service and his back issues abruptly started in 2014. The VA examiner also noted that the Veteran's gait was normal. Unfortunately, the examiner did not sufficiently address whether the Veteran's back disorder was aggravated by his service-connected knee disorders. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Accordingly, a remand is required to obtain another VA medical opinion. 2. The claim of entitlement to a disability rating in excess of 10 percent for service-connected left knee strain is remanded. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2021, the Board remanded the claim to obtain another VA examination and instructed the examiner to provide retroactive medical opinions in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner was to interview the Veteran about the nature of the flare-ups and provide a retroactive opinion as to any additional functional loss during flare-ups at the time of the April 2012, September 2014, and July 2017 VA examinations. The August 2021 VA examiner stated that he could not speculate regarding the Veteran's range of motion during the prior exams. It does not appear that the examiner interviewed the Veteran or obtained information about the nature of the flare-ups reported during the April 2012, September 2014, and July 2017 VA examinations. The Board also instructed the VA examiner to provide range of motion measurements in both active and passive motion and in weightbearing and non-weightbearing. However, the August 2021 VA examiner did not provide range of motion measurements in weightbearing and non-weightbearing. Accordingly, a remand is required to obtain another VA examination. 3. The claim of entitlement to a disability rating in excess of 10 percent for left knee instability is remanded. The Veteran's left knee instability is part and parcel of the claim of entitlement to an increased rating for the left knee strain. A February 2012 VA treatment record documented the Veteran's report that his left knee gives out on him and causes him to fall. At the January 2020 Board hearing, the Veteran described instability of the left knee that occurred daily. The Board finds that a remand is required to determine whether the Veteran's left knee instability was present throughout the entire period on appeal, e.g. after April 10, 2012, and, if so, the severity of the instability throughout the appeal period. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § § 3.159 (e). 2. Then, the AOJ should obtain an addendum medical opinion from the examiner who conducted the Veteran's August 2021 VA examination. If this examiner is no longer available, then the claims file must be returned to a physician of similar expertise. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. All pertinent evidence of record must be made available to and reviewed by the examiner. Following a review of the relevant records and lay statements, the examiner must state an opinion as to whether it is at least as likely as not that the Veteran's back disorder was caused or aggravated by his service-connected knee disorders. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 3. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of his left knee disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. All necessary studies should be performed. The examiner should provide all information required for rating purposes, to specifically include range of motion of each knee in active motion, passive motion, weight-bearing, and non-weight-bearing. Further, the examiner must indicate if movement is limited by pain, and if so, at what point. The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. The examiner should determine whether the Veteran's range of motion results from the April 2012, September 2014, and July 2017 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-bearing. To the examiner's best ability, the additional range of motion loss should be described in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should also specifically interview the Veteran about the nature of the flare-ups that he reported in the April 2012, September 2014, and July 2017 VA examinations; assess this impairment during flare-ups, and provide a retroactive opinion as to any additional functional loss during flare-ups at that time, and provide an estimate of that loss in terms of degrees reduction in range of motion. Also, the examiner should provide an opinion as to whether and during what periods since 2012, the Veteran had left knee instability. The examiner must provide all information required for rating purposes under the old and new criteria. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. After completing the above development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.