Citation Nr: 22016551
Decision Date: 03/22/22	Archive Date: 03/22/22

DOCKET NO. 17-51 859
DATE: March 22, 2022

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities before June 25, 2019, is denied.

Entitlement to a compensable rating for residuals of fracture, left tibia (claimed as left foot injury) is denied.

Entitlement to a compensable disability rating for chronic obstructive pulmonary disease (COPD) before August 1, 2020, is denied.

Entitlement to a greater than 50 percent rating for obstructive sleep apnea (OSA) with COPD on and after August 1, 2020, is denied.

REMANDED

Entitlement to a compensable rating before June 25, 2019, and a greater than 10 percent rating thereafter for left knee patellofemoral syndrome (PFS) is remanded.

Entitlement to a compensable rating before June 25, 2019, and a greater than 10 percent rating thereafter for right knee PFS is remanded.

FINDINGS OF FACT

1. The Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation before June 25, 2019.

2. The Veteran's service-connected residuals of left tibia fracture (left ankle disability) is not manifested by moderate limited motion or painful motion. 

3. From February 2007, the Veteran has been awarded separate ratings for OSA and COPD even though VA regulations prohibit the assignment of separate respiratory disorder ratings. From February 2007, the Veteran has been awarded a 50 percent rating for OSA.

4. In a November 2009 rating decision, the AOJ reduced the Veteran's COPD rating from 30 to 0 percent disabling. The Veteran did not appeal the November 2009 rating decision.

5. In a May 2020 rating decision, the AOJ informed the Veteran it was clear and unmistakable error to assign separate ratings for OSA, COPD; the two separate ratings were merged into a single disability rating for OSA with COPD, rated 50 percent disabling from August 1, 2020. 

6. The evidence shows the Veteran's COPD was manifested in an FEV-1 between 71 and 80 percent predicted but not between 56 to 70 percent predicted or FEV-1/FVC of 56 to 70 percent or DCLO SB of 56 to 65 percent predicted. 

7. The Veteran's obstructive sleep apnea has the required use of a continuous positive airway pressure (CPAP) machine, but has not manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy.

8. On and after August 1, 2020, the Veteran's OSA disorder with COPD required use of a CPAP machine, but has not been manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy.

CONCLUSIONS OF LAW

1. Prior to June 25, 2019, the criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25, 4.26.

2. The criteria for entitlement to a compensable disability rating for residuals of left tibia fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271.

3. The criteria for a 10 percent rating for COPD are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.96, 4.97, DC 6604.

4. Entitlement to separate disability ratings for OSA and COPD is not permitted as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, DC 6604, 6847.

5. The criteria for a disability rating in excess of 50 percent for OSA with COPD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.97, DC 6604-6847.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1989 to January 2007.

These matters come to the Board of Veterans' Appeals (Board) from March 2014 and April 2017 rating decisions issued by the Agency of Original Jurisdiction (AOJ). In May 2019, the Board remanded the appeal for new VA disability examinations. The Board finds that there has been substantial compliance with its directives and may now proceed with a decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

1. Entitlement to a TDIU before June 25, 2019. 

The Veteran contends that even though he had worked as a part-time teacher between November 2018 and June 2019, his service-connected disabilities precluded him working full-time; so, he was unable to maintain substantial gainful employment. See August 2020 Statement. 

The question for the Board is whether the Veteran has established entitlement to a TDIU prior to June 25, 2019. For the reasons discussed below, the Board concludes he has not. 

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38C.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 (1993). In arriving at a conclusion, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38C.F.R. §§3.341, 4.16, 4.19.

The phrase "unable to secure and follow a substantially gainful occupation" has two components: First, an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray v. Wilkie, 31 Vet. App. 58, 71-74 (2019).

Second, there is a non-economic component dealing with the Veteran's ability to secure and follow employment. For this second component, attention must be given to: (a) the Veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Id. As sedentary work is defined as "doing or requiring much sitting," the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003).

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

Beginning with the Veteran's work history, he separated from service in January 2007. By April 2007, he was working full-time as a lab technician earning about $30,000 annually. See July 2008 Social Security Administration (SSA) Work History Report at 2. His duties included operating medical equipment. Id. He reported having a hard time at this job for reasons that include inadequate training and dealing with the stress of potentially making mistakes. He also reported he had problems with his memory, focusing, and multi-tasking. Based on performance evaluations found in the record, he did not complete his tasks on time and took actions that compromised patient samples, such as mislabeling patient samples. See November 2007, February 2008 Employee Disciplinary Reports. Although his employer tried to counsel, coach, and re-educate himimprovement was not shown; so, his employment was terminated in February 2008. See July 2013 VA neuropsychological evaluation (asserting he made mistakes due to lack of appropriate training); April 2008 VA Medical Center (VAMC) Record by G.S., MD (Veteran reported he forgot to do things, like turn off machines, and became scared of making mistakes); April 2013 VAMC Record by B.W., PhD (Veteran explained some of his mistakes were due to poor training and problems with his equipment). 

From February 2009 through March 2011, the Veteran was a full-time university student. See March 2013 SSA Work History Report at 1. The SSA assessed his physical and mental abilities before he started his schooling; he was found to be  moderately limited in his ability to understand detailed instructions, sustain concentration, but his memory, ability to understand short instructions were not found to be significantly limited. See September 2008 SSA Mental Residual Functional Capacity (RFC) Assessment at 1-2. Although he also reported physical limitations, like difficulty hearing, standing, and walking, SSA found the Veteran could stand, walk, and sit for a total of six hous in an eight-hour workday. See September 2008 SSA Physical RFC Assessment at 2. When describing his schooling, he reported he studied four to six hours a day and was earning B's and C's. See June 2008 Compensation and Pension (C&P) Examination Report at 3; September 2008 SSA Mental RFC Assessment at 3. He did not report problems hearing his teachers, sitting for prolonged periods of time, or learning the concepts that were part of his studies for a biology degree. 

When the Veteran completed his university training in March 2011, he had difficulties finding and obtaining employment. When discussing his job search, he reported he limited his search to medical laboratory positions even though he did not have all the qualifications required for the jobs. See June 2012 Veteran Readiness and Employment (VR&E) Record (noting Veteran applies for positions that require some time in a lab); July 2013 Neuropsychological Evaluation (noting Veteran limited his job search to medical laboratory positions and displayed dysfunctional thinking about his job prospects); August 2013 VA Disability Benefits Questionnaire (DBQ) (noting Veteran expressed some of his difficulties finding work were due to searching for jobs he is not qualified to perform). 

In August 2012, VA received a letter from G.S., MD, a VA psychiatrist who asserted the Veteran cannot obtain or maintain gainful employment due to his disabilities. The letter consisted of three sentences. The first sentence indicated Dr. G.S. had been treating the Veteran for at least five years. The second sentence noted the Veteran had been diagnosed with Post-Traumatic Stress Disorder (PTSD), organic brain syndrome, as well as other (unspecified) medical conditions. The third sentence asserted the Veteran's disabilities rendered him incapable of obtaining and/or maintaining gainful employment. Dr. G.S. did not provide any reasons or rationale for his conclusion. See August 2012 Medical Opinion. 

When VA received the Veteran's August 2012 TDIU claim, he was service-connected for 14 disabilities with a combined rating of  90 percent disabling. Two of the 14 disabilities were over 40 percent disabling, to include OSA (50 percent disabling from February 2007), and an acquired psychiatric disorder (50 percent disabling from August 21, 2012). The remaining 12 disabilities were 30 percent disabling or less, to include diabetic nephropathy (30 percent disabling from April 2013), diabetes mellitus II (DM II) (20 percent disabling from April 2007), tinnitus (10 percent disabling from February 2007), hypertension (10 percent disabling from February 2007 to April 2013), residuals of a head injury (10 percent disabling from February 2007 to July 2013), residuals of a fracture left distal tibia (0 percent from February 2007), right knee patellofemoral syndrome (PFS)(0 percent from February 2007), left knee PFS (0 percent from February 2007), carpel tunnel syndrome, left upper extremity (0 percent from February 2007), carpel tunnel syndrome right upper extremity (0 percent from February 2007), COPD (0 percent from February 2010). 

The Veteran did not work during the period from August 2012 through April 2018. During that period, several medical professionals evaluated his ability to work. In January 2013, the SSA evaluated the effects DM II, COPD, tinnitus, knee problems, and OSA, had on his ability to work. The SSA found Veteran was able to concentrate at times, and was capable of performing light, unskilled work; SSA did not find him disabled. See September 2013 SSA Disability Determination Explanation at 14. 

In July 2013, Dr. G.Sthe VA psychologist who endorsed the August 2012 medical opinion stating the Veteran is unemployablereferred the Veteran for psychometric testing. He was referred for testing so Dr. G.S. could obtain more data to determine whether Veteran's cognitive abilities render him unemployable. During the July 2013 neuropsychological evaluation, the Veteran expressed that he observed diminished memory. For example, he tended to forget the location of his car keys. The neuropsychologist noted no significant memory impairments were reported, like problems performing activities of daily living (ADLs). Also, multiple diagnostic tests of the Veteran's cognitive abilities showed average intellectual functioning. Testing also indicated his executive functions were generally unimpaired, except for mild deficits in processing speed and below average working memory. See July 2013 VAMC Record by S.W., PhD.

The July 2013 VA neuropsychologist acknowledged the Veteran's service-connected psychiatric disorders pose limitations on his ability to work in fast-paced environments, but found he is capable of working in other kinds of environments. The neuropsychologist concluded the evidence does not support finding the Veteran's psychiatric disabilities limit his cognitive abilities to the extent he is unemployable. She added the Veteran's providers (to include Dr. G.S.) do not appear to have an accurate understanding of the factors contributing to the Veteran's unemployment. She noted the Veteran displayed dysfunctional thinking about his job prospects as he expressed fear about taking a job he has not been specifically trained to do. For example, the Veteran did not apply for jobs in fast food, retail, because he believes those jobs will raise his stress levels. Id. 

Similarly, the August 2013 VA examiner expressed that the Veteran appears to be capable of working despite the limitations posed by his TBI, psychiatric disorders. The Veteran told the examiner he is capable of performing the jobs he desired. He also told the examiner some of his difficulties finding work were due to searching for jobs he is not qualified to perform. For example, he did not have the requisite certifications for some of the medical jobs he wanted. Third, the Veteran indicated he did not try to obtain work outside of the medical field because it may impact his VA compensation benefits. He also expressed his view of himself might be diminished if he performed other kinds of work. Fourth, the August 2013 examiner did not detect cognitive impairments that would interfere with the Veteran's ability to perform the mental acts required by work. See VA DBQ at 10.

A November 2014 medical opinion by H.G, PhD, a private provider, asserts the Veteran is unable to obtain and maintain gainful employment. She explained the Veteran cannot perform the mental acts required by work given his mild memory, concentration problems, and an inability to handle stress. See Medical Opinion at 1. She opined the Veteran's psychiatric disorder would cause him to miss three or more days of work per month with more than one incident involving an angry outburst. Id. at 3-4. Also, the Veteran's sleep apnea, headaches, and tinnitus, contribute to his inability to work as he has difficulty hearing with background noise and must lie down once a week due to headaches. Id at 2. She estimated the Veteran's disabilities would cause the loss of three days of work-time every month.  

The June 2016 VA examiner came to a different conclusion than Dr. H.G. The examiner found the Veteran's psychiatric disorders (other specified trauma disorder, specified personality disorder, and major depressive disorder) impact his ability to work in certain settings, but do not render him incapable of working altogether. See VA DBQ at 9. The examiner relied on the results of cognitive testing to determine the Veteran has the ability to perform the mental acts required by work. He explained neurocognitive testing showed deficits in working memory and speed of information processing only. The examiner expressed the results of neurocognitive testing did not show objective evidence of unemployability. He also opined the Veteran could work in settings that do not require fast-paced performance and multitasking. Id. at 5, 9.  

Several of the Veteran's non-psychiatric disorders were evaluated during the period from 2012 through 2017. The severity of his service-connected hypertension, DM II, diabetic nephropathy, was found to be mild with no impact on his ability to do physical or sedentary work. See July 2013 VA DBQs for hypertension, DM II, kidney conditions; June 2016 VA DBQ. As noted, sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). Although the Veteran's sleep apnea caused daytime fatigue three times a week, he expressed he is managing it well through the use of a CPAP machine; the examiner found sleep apnea does not impact the Veteran's ability to work. See July and August 2013 VA DBQs. An assessment of his diagnosed TBI noted cognitive impairments, like memory problems, are not attributed to it. See July 2013 VA DBQ at 2 (noting that Veteran did well on testing for memory despite reports of diminished memory); October 2017 VA DBQ at 4, 5 (noting headaches, memory loss, are not attributable to this Veteran's TBI).

With regards to the impact the Veteran's headaches have on his ability to work, the claims file includes conflicting medical reports. According to the August 2013 VA DBQ, the Veteran observed headaches off and on, lasting less than one day. When he met with the provider who prepared the January 2015 DBQ, he described his headaches caused sensitivity to light, sound, and nausea. Also,  his symptoms required that he lay down in a darkened room. The January 2015 examiner opined that Veteran's headaches prevent him from obtaining substantial gainful employment. He explained the Veteran's headaches would result in two absences from work each month with about two days of work-time lost due to lack of focus. See VA DBQ at 1-3. 

The October 2017 examiner concluded the Veteran's headache disability was not occurring at a frequency that meets the criteria for a chronic headache disability. See VA DBQ at 5. During that examination, the Veteran reported two to three headaches per month manifested with throbbing pain. The DBQ indicates his headaches did not cause sensitivity to light and nausea. Id. at 2-3. 

In March 2018, VA received a medical opinion by S.B., PhD, expressing the Veteran is unable to maintain substantially gainful employment. See Vocational Assessment at 4. She provided three reasons for her conclusion. First, she explained the Veteran's disabilities would lead to loss of work time that  is not likely to be tolerated by an employer. In support of this conclusion, she relied on an article indicating employers tend to allow no more than eight absences per year. Id. at 3. Second, the Veteran's psychiatric disorder, sleep apnea, and headaches impair his ability to concentrate, and remember things to such an extent he is not likely to be productive in a work setting. Third, the Veteran's anxiety renders him unable to tolerate stress and accept criticism. She opined his irritability would lead to termination of employment. Id. at 4. 

The record reflects the Veteran started working again in August 2017. See August 2017 VA DBQ at 3 (noting Veteran reported observing a dusty environment at Goodwill). His duties at Goodwill included physical activity, like standing for prolonged periods of time, and lifting heavy furniture. Due to physical limitations posed by certain service-connected disabilities, this job was difficult for the Veteran to perform. See August 2020 Statement. His employment was terminated in November 2018 due, in part, to an incident where he took items out of a trash can. Id. Later in November 2018, he started working as a substitute teacher; he taught children in grades seven to twelve. See VA 21-8940s dated June, and July 2019. 

From November 2018 to May 2019, the Veteran balanced three substitute teacher positions at the same time. Given that he worked when a teacher was unavailable, it amounted to part-time work, averaging about two days per week. See August 2020 Statement. It is his belief that he is unable to work as a full-time teacher because he would not be able to manage his anger. Id. He based this assertion on his observed difficulties managing his temper while working as a part-time teacher. In support of his statement, he referenced an incident when he had an outburst. Although it required intervention by an administrator, he did not indicate it led to disciplinary action. Neither did he report any other outbursts during his employment as a teacher, (from November 2018 to May 2019). 

Turning to the Veteran's claim for a TDIU prior to June 25, 2019, the evidence does not support finding one or more of his service-connected disabilities prevented him from obtaining or maintaining substantially gainful employment before June 25, 2019. 

The Veteran met the schedular criteria for a TDIU during the appeal period (August 21, 2012, to June 25, 2019). Although the Veteran contends he has been unemployable due to his service-connected disabilities since his (February 2008) termination from his lab technician position, the relevant appeal period is from the date of his August 2012 TDIU claim to June 25, 2019. During that period, the combined rating of his service-connected disabilities was 90 percent disabling with two disabilities (OSA, acquired psychiatric disorder) rated more than 40 percent disabling. The schedular criteria for a TDIU are met when many ratings combine to 70 percent with at least one rating 40 percent disabling or more. 38 C.F.R. § 4.16(b). 

Even if the Veteran's February 2008 termination from his lab technician position was due to service-connected disabilities, the evidence shows he has been capable of performing the mental acts required by work up to June 25, 2019. Given that the loss of employment occurred far outside of the appeal period, the Board sees no reason to decide whether he lost the job due to poor training or symptoms attributable to certain service-connected disabilities, like anxiety, concentration problems. What is relevant here is whether such symptoms precluded him from obtaining or maintaining substantially gainful employment up to the year before the VA received his August 2012 TDIU claim. Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010). Based on the evidence in the claims file, he has been able to perform the mental acts required by work, several years before VA received his TDIU claim. See September 2008 SSA Mental RFC Assessment (finding Veteran's mental capabilities do not preclude him from working).

Although the Veteran lost his laboratory technician job in February 2008, in part, due to memory and concentration problems, his continued pursuit of similar positions indicates he believed he possessed the mental capabilities to perform similar work. See June 2012 VR&E Record (noting Veteran has been interviewing for hematology, chemistry, microbiology positions); July 2013 Neuropsychological Assessment (noting Veteran has been searching for medical laboratory positions, exclusively). Following termination of his employment he continued to apply for an interview for medical laboratory technician positions. 

When discussing his lack of success in getting the position(s) desired, he did not attribute it to diminished mental capabilities; instead, he expressly indicated he did not get those positions due to lack of certain qualifications, like experience in laboratories and lack of certain certifications. See August 2013 VA DBQ at 10 (noting Veteran expressed some of his difficulties finding work is due to searching for jobs he is not qualified to perform); June 2012 VR&E Record (noting Veteran has looked for jobs outside of lab settings but most positions in biology/chemistry require time in a lab). Given that he made those statements when discussing his employabilityand while doing so expressed his inability to perform other types of work, like fast food workthe Board finds it is likely he would have reported he lacked the mental capabilities required to perform medical laboratory positions, if observed; so, the Board finds those statements credible. See July 2013 VA Neuropsychological Assessment (noting Veteran will not apply for jobs outside of medical laboratory positions).

If there is a question that the Veteran mistakenly believed he had the mental capabilities to work, the findings of several medical providers weigh strongly against that conclusion. His mental capabilities, to include memory, concentration, and focus were evaluated several times throughout the appeal period. The most thorough assessment was the July 2013 VA neuropsychological assessment, which included multiple cognitive tests that support finding he possessed the mental abilities to work. See VAMC Record by S.W., MD. Considering other medical professionals relied on this neuropsychological assessment when evaluating the Veteran's mental abilities, the Board also finds the neuropsychological assessment reliable. Given that the neuropsychologist concluded the Veteran had the cognitive abilities to work, her conclusions weigh strongly against this TDIU claim. See July 2013 VAMC Record (noting Dr. G.S requested the neuropsychological evaluation to help determine if the Veteran lacked the mental ability to work); August 2013 VA DBQ (noting the Veteran did not have cognitive impairments that interfered with his ability to work, but deferred to examiner who prepared the neuropsychological evaluation); July 2016 VA DBQ (relying on findings from neuropsychological evaluation to support opinion that Veteran could perform the mental acts required by work). 

The Board observes the Veteran expressed he lacked the cognitive ability to work while attending university and when looking for work, but the Board finds those statements lack credibility. He tended to make those statements while pursuing SSA and VA disability benefits. More importantly, those statements conflict with his success at obtaining a college degree as this demonstrates to the Board he had the mental capabilities to work. For example, he expressed to SSA he lacked certain cognitive abilities to work, like the ability to concentrate and remember things, while simultaneously meeting the academic requirements for a bachelor's degree in biology. Similarly, he expressed to SSA and VA he lacked the mental ability to work as a lab technician while pursuing careers exclusively in the same kinds of positions. See July 2013 Neuropsychological Evaluation (noting Veteran limited his job search to medical laboratory positions). 

Although he has expressed he was able to study several hours a day due to the use of medications, that does not explain away all the mental abilities needed to obtain a university degree, like long term memory, understanding instructions for assignments. See June 2008 Compensation and Pension (C&P) Examination Report at 3 (Veteran reported he studied four to six hours a day and obtained B's and C's); July 2008 SSA Function Report (reporting he was taking college courses). Because his statements to SSA and VA expressing he lacked the mental abilities to work conflict with his demonstrated abilities, the Board finds them not credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (explaining that, when assessing the credibility of lay statements, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record).

With regards to the Veteran's physical abilities, the evidence indicates the limitations posed by his disabilities did not prevent him from obtaining or maintaining substantially gainful employment. Although his service-connected disabilities led to a disability picture consisting of multiple symptoms, to include difficulty hearing, tingling fingers, difficulties engaging in prolonged standing, and headaches that cause daytime fatiguehe has not alleged those limitations precluded him from working as a laboratory technician when pursuing jobs in that field up to, at least, July 2013. July 2013 Neuropsychological Assessment (noting Veteran has been searching for medical laboratory positions, exclusively). 

Although the Veteran referenced difficulties lifting and standing at his job with Goodwill from August 2017 to November 2018, it is apparent to the Board it was a physically demanding position. He did not mention symptoms other than the ones that affect his mental capabilities when discussing sedentary work, such as his work as a full-time as a teacher. See August 2020 Statement (asserting he is unable to work full-time as a teacher do to difficulties managing his anger). Given that this is a TDIU claim, the Board finds it is likely he would have referenced symptoms he believed precluded him from performing sedentary work. Because he emphasized his psychiatric disability and its effects on his ability to maintain employment, his omissions weigh against finding he lacked the physical ability to perform sedentary work. 

Even if the Veteran had mentioned one or more service-connected disabilities posed physical limitations on his ability to perform sedentary work, he has demonstrated otherwise. Although the Veteran's part-time work as a teacher did not provide an income that meets the threshold for substantially gainful employment, he demonstrated he has the physical ability to do so. His part-time employment status alone is insufficient to establish entitlement to a TDIU; he must show he is unemployable as a result of one or more service-connected disability. Ray, 31 Vet. App. at 63. 

Here, the Veteran mentioned some physical limitations, like tingling fingers when grading papers, but did not allege such limitations prevented him from working full-time as a teacher. Neither does the record raise the inference his physical limitations restricted him to part-time employment. That line of work is generally unlikely to amount to full-time employment as work opportunities depend on the absence of the usual teacher. Merriam-Webster's Dictionary, https://www.merriam-webster.com/dictionary/substitute%20teacher (last visited February 26, 2022) (defining substitute teacher as one who teaches a class when the usual teacher is not available). Further, the evidence does not suggest he had sought to restrict his work opportunities to part-time status. The Veteran's decision to combine multiple substitute teaching positions at one time indicates an awareness that his employment with one school would not amount to many work opportunities. It also indicates he sought to maximize work opportunities. 

The Veteran's ability to obtain work in positions other than medical, chemistry, and biology positions indicates to the Board he has the education, skill, and training to obtain substantial gainful employment. Since his termination from employment in February 2008 he was able to obtain employment at Goodwill. More recently, he obtained employment at three separate schools to work as a substitute teacher. Regarding his ability to maintain employment, the evidence does not support finding his disabilities precluded him from working full-time as a teacher. As noted, the record does not show the hours or frequency of his work were in any way the result of his disabilities. 

The Board observes the claims file includes several medical opinions asserting the Veteran cannot work; however, each of the opinions had defects that diminished their probative value. Beginning with the August 2012 opinion by Dr. G.S., it was not supported by a rationale; therefore, the Board is unable to evaluate how Dr. G.S. determined the Veteran could not work. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.").

Although the Veteran's VAMC records provide some information Dr. G.S. may have relied on, it is apparent to the Board it did not include an assessment of the Veteran's cognitive abilities. He arranged for a cognitive assessment but received the results after VA obtained his August 2012 medical opinion. See July 2013 neuropsychological assessment (noting Dr. G.S. initiated the referral for cognitive testing). Considering Dr. G.S. appears to have been less informed about the Veteran's mental abilities than the medical professionals who prepared the July 2013 neuropsychological evaluation, August 2013, and June 2016 examinationsDr. G.S.'s opinion was assigned little probative weight. Because VR&E relied on Dr. G.S.'s opinion when finding the Veteran's employment goals infeasible, that finding has little probative value as well. See December 2013 VR&E Record. 

The March 2018 vocational assessment had little probative value as it conflicted with other evidence in the record. The medical professional who prepared the opinion asserted the Veteran lacked specific cognitive abilities, like memory and concentration problems, without mentioning his demonstrated ability to obtain a college degree. She also indicated the Veteran's disabilities would result in his termination of employment, which did not occur while he was working as a substitute teacher. See Vocational Assessment at 4; August 2020 Statement. 

Even if the Veteran contends the private psychologist who prepared the March 2018 assessment meant he could not tolerate full-time employment, the Board finds the Veteran's demonstrated work history more persuasive on his ability to work than this medical opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (the issue of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question).  

For the same reasons, the Board finds the November 2014 medical opinion of little probative value as the Veteran demonstrated his memory, concentration problems do not limit his ability to educate children in grades seven to twelve. The November 2014 examiner opined the Veteran possessed diminished mental abilities in the areas of concentration, focus, and memory, that were so severe he would lose work-time. See Medical Opinion at 3-4. But the Veteran has not expressed he observed memory, concentration, hearing problems when educating children. Instead, he expressed he would be unable to maintain that job full-time out of fear he would lose his temper. See August 2020 Statement. 

Although the November 2014 opinion accurately predicted the Veteran would respond to work pressures in an angry manner, it occurred on one occasion. He lost his temper once over the  course of several months. See August 2020 Statement. During that period, he worked two days a week over the course of six months, amounting to 50 or more workdays. See June 2019 VA 21-4192 (noting Veteran worked 42 days); August 2020 Statement (asserting he worked two days a week, six to eight hours each workday). One event over that length of time is not sufficient to find he is not capable of maintaining substantially gainful employment. 

In sum, the evidence does not persuasively show the Veteran was unable to obtain and maintain substantial gainful employment due to one or more service-connected disability. The record does not support finding he could not work from February 2008 due to his disabilities as he limited his job search to specific positions, many of which he lacked the qualifications employers required. When he eventually expanded his job search, he succeeded in getting hired as a substitute teacher. Although he worked part-time, the record does not show the hours or frequency of his work was in any way the result of his disabilities. The Board observes the AOJ found the Veteran unemployable from June 25, 2019, but the relevant inquiry here is the period before that date. Accordingly, the assigment of a TDIU before that date is not warranted and his claim must be denied.

2. Entitlement to a compensable rating for residuals of fracture, left tibia (claimed as foot injury). 

The question for the Board is whether the Veteran has established entitlement to a compensable disability rating (greater than 0 percent) for residuals of fracture, left tibia (left ankle disability). For the reasons discussed below, the Board concludes a compensable rating is not warranted at any time across the appeal period.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 U.S.C. § 1155; 38 C.F.R., Part 4. If there is a question as to which evaluation to apply to the Veteran's disability, 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.

In considering the severity of a disability, it is essential to trace the medical history

of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded

history is necessary so that a rating may accurately reflect the elements of any

disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Although the regulations do not give past medical reports precedence over current

findings, the Board is to consider the veteran's medical history in determining the

applicability of a higher rating for the entire period in which the appeal has been

pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

If later evidence indicates that the degree of disability increased or decreased

following the assignment of the initial rating, "staged" ratings may be assigned for

separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

When assessing the severity of a musculoskeletal disability that is rated on the

basis of limitation of motion, VA must, in addition to applying scheduler criteria,

also consider evidence of pain, weakened movement, excess fatigability, or

incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202,

204-207 (1995).

VA records show the Veteran is currently service-connected for residuals of left distal tibia fracture (left ankle disability) and assigned a noncompensable disability rating under DC 5271 from February 2007. There are two versions of DC 5271 that has been in effect since the filing of the Veteran's increased rating claim (April 2017). One that was in effect before February 7, 2021, and one that became effective on and after that date. 

Under the version of DC 5271 that was in effect before February 7, 2021, a 10 percent rating is warranted for "moderate" limited motion of the ankle. A 20 percent rating is warranted for "marked" limited motion of the ankle. A 20 percent rating is the highest rating available under that Code. 38 C.F.R. § 4.71a, DC 5271.

Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See https://www.merriam-webster.com/dictionary/moderate (last visited March 8, 2022). "Marked" means "having a distinctive or emphasized character." See https://www.merriam-webster.com/dictionary/marked (last visited March 8, 2022). 

Under the version of DC 5271 that became effective on and after February 7, 2021, marked and moderate limitation of motion are defined. Marked limitation of ankle motion is defined as less than five degrees dorsiflexion (flexion of the foot in an upward direction) or less than ten degrees plantar flexion (movement of the foot in which the foot or toes flex downward toward the sole). Moderate limitation of motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 38 C.F.R. § 4.71a, DC 5271.

Although the VA regulations for DC 5271 have been changed during the appeal period, the Board can apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to that date. Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003).

While VA was developing the Veteran's claim for a TDIU, certain examinations provided data on the status of his left ankle disability. During an August 2017 VA examination of the left ankle, he reported a history of a tibia fracture; he reported it did not manifest with much pain any longer. Instead, he noticed occasional ankle twists with momentary pain. See VA DBQ at 1. The August 2017 examiner found limited motion without pain. Range of motion for dorsiflexion was 0 to 15 degrees, with plantar flexion at 0 to 40 degrees. Id. at 2. Repetitive use testing did not reveal additional loss of motion. Consideration of flare-ups was not discussed as the Veteran did not report flare ups. Id. at 2, 4. Muscle strength was normal with no signs of ankylosis. Id. at 4, 5.

Before VA examined his left ankle disability again (in December 2019), his ability to engage in physical activity was evaluated through VA examinations of other service-connected disabilities. With regards to symptoms observed at the lower extremities, he reported knee pain that posed limits on his ability to stand, walk, and go up and down stairs. See June 2019 VA DBQ at 4-5; August 2017 VA DBQ (noting reports of knees popping when bending no other reports of pain associated with activities). He visited a podiatrist five times between April 2013 and June 2019. Each time, a podiatrist evaluated the symptoms the Veteran observed around the foot. Although he had mentioned a left ankle fracture during such visits, he reported pain at his arches only. See VAMC Records dated April 2013 by B.Y., DPM; March 2014 by T.S., DPM (noting muscle strength and range of motion of the foot was within normal limits); April 2016 by T.S., DPM (noting muscle strength and range of motion of the foot was within normal limits); June 2018 by T.S., DPM noting muscle strength and range of motion of the foot was within normal limits); June 2019 by T.S., DPM (noting muscle strength and range of motion of the foot was within normal limits). He did not report limitations caused by his left ankle disability. 

Although the podiatry examinations were aimed at evaluating the Veteran's feet, a December 2019 VA examination of his left ankle disability was conducted. He reported pain during cold temperatures and discomfort when using particular equipment, like a garden tractor. See VA DBQ at 4. 

Even though the claims file includes many medical opinions discussing the Veteran's ability to work, none of them mention his left ankle disability. Nor did the Veteran reference this disability as a factor that interfered with his work as a lab technician (April 2007 to February 2008) or substitute teacher (November 2018 to May 2019). Even though he referenced problems with standing and lifting objects while working at Goodwill (August 2017 to November 2018), he has attributed problems with standing, walking, and going up and down stairs to his service-connected knee disabilities. See August 2020 Statement. 

A.	Entitlement to a compensable rating under DC 5271. 

Turning to the Veteran's claim for disability compensation benefits, the evidence does not support the assignment of a compensable rating for service-connected residuals of left distal tibia (left ankle disability) based on either the pre- or post-February 7, 2021, rating criteria under DC 5271. 

After reviewing the range of motion limits noted during the appeal period, it is apparent to the Board that the pre-February 7, 2021, DC 5271 rating criteria is more favorable to this Veteran's claim. Under this rating criteria, lay observations of occasional pain is evidence that can help approximate undefined terms like moderate and marked limited motion. Lay statements are less helpful under the new (post-February 7, 2021) 5271 criteria as it is based on specific range of motion findings. Kuzma, 341 F.3d at 1328.

Also, the range of motion limits noted during the appeal period do not meet the criteria for a compensable rating under the new DC 5271 rating criteria. Under the new 5271 criteria, a 10 percent rating is warranted for dorsiflexion at less than 15 degrees or plantar flexion less than 30 degrees. Here, the August 2017 VA DBQ noted dorsiflexion at 15 degrees and plantar flexion at 40 degrees. Although 15 degrees dorsiflexion is close to the threshold for marked limited motion, when that finding is viewed in conjunction with the range of motion limits noted during his podiatry visitshis range of motion for the left ankle does not more nearly approximate dorsiflexion that is less than 15 degrees. See VAMC Records dated March 2014 by T.S., DPM (noting muscle strength and range of motion of the foot was within normal limits); April 2016 by T.S., DPM (noting muscle strength and range of motion of the foot was within normal limits); June 2018 by T.S., DPM noting muscle strength and range of motion of the foot was within normal limits); June 2019 by T.S., DPM (noting muscle strength and range of motion of the foot was within normal limits).

Although the Veteran's lay statements can support a finding of marked or moderate limited motion under the pre-February 7, 2021, DC 5271 rating criteria, his descriptions are not informative enough to help the Board approximate the severity of limited left ankle motion. Even though this older 5271 rating criteria is not based on specific range of motion limitations, undefined terms like moderate limited motion require approximating non-specific range of motion limits. Under this older 5271 rating criteria, a 10 percent rating is warranted for "moderate" limited motion of the ankle. A 20 percent rating is warranted for "marked" limited motion of the ankle.

Here, the Veteran's general reports of pain do not help the Board approximate any limited left ankle movement. Normal range of motion of the ankle is 20 degrees dorsiflexion and 45 degrees plantar flexion. 38 C.F.R. § 4.71a , Plate II. Without more, the Veteran's statements do not help approximate the extent of limited left ankle motion, to include deciding whether it amounts to moderate or marked limited motion. That means the Board is unable to approximate range of motion limits without identifiable references to when left ankle pain or limited movement begins/ends. For example, reports of pain in cold environments does not help the Board determine at what point pain is observed during motion, if at all. See August 2017 VA DBQ at 1. These kinds of reports are not informative enough to approximate the extent of limited left ankle movement.

Even though the Veteran reported twisted ankles, he has not expressed they are due to problems with ankle mobility. So, the record does not persuasively show his twisted ankles are in any way due to his disability.

Any doubts that the Veteran's left ankle disability manifested with marked or moderate limited motion were resolved by the August 2017 VA DBQ and multiple podiatry visits. The August 2017 examiner noted range of motion limits at dorsiflexion (15 degrees) and plantar flexion (40 degrees) that are a few degrees less than normal ankle motion (for dorsiflexion, it is 20 degrees; for plantar flexion, 45 degrees). There is no indication the examiner failed to consider reports provided by the Veteran. Nieves-Rodriguez, 22 Vet. App. at 300; Mitchell v. Shinseki, 25 Vet. App. 32, 36-39 (2011); Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). 

Although a decision based on range of motion findings alone is not required by the pre-February 7, 2021, DC 5271 rating criteria, such findings provide evidence that help the Board capture the Veteran's disability picture. The August 2017 range of motion findings weigh strongly against concluding his left ankle disability was manifested moderate or marked limitation of motion. The Board's finding is supported by the range of motion limits noted during the Veteran's podiatry visits. See April 2016, June 2018, June 2019 VAMC Records  by T.S., DPM (noting range of motion of the foot was within normal limits).

In this case, the evidence does not support the assignment of a compensable rating under DC 5271 for limited left ankle motion. His lay statements do not help approximate any range of limited movement. But the range of motion findings noted above provide data that help approximate if his left ankle movement could be described as moderately limited or worse; therefore, the Board finds the range of motion findings more persuasive than the Veteran's lay statements. Given that the evidence does not support finding his left ankle disability was manifested by moderate or marked limited movement, the assignment of a compensable rating under 5271 is not warranted at this time. Accordingly, the Veteran's claim for a compensable rating must be denied. 

B. Entitlement to a compensable rating under other diagnostic codes. 

There are no other applicable diagnostic codes. The record does not show os calcis or astragalus malunion or prior astraglectomy. The August 2017 VA examiner did not note the Veteran's left ankle was ankylosed. See VA DBQ at 4, 5. Similarly, the podiatrist who evaluated the Veteran's foot did not provide findings that raise the inference of other applicable diagnostic codes. None of those records suggest the Veteran observed the functional equivalent of ankylosis. For example, inability to move the ankle. Chavis v. McDonough, 34 Vet. App. 1, 10-11 (2021). 

The Board observes the Veteran has reported pain when discussing his left ankle disability, but it is not apparent to the Board his disability is manifested by painful motion. 38 C.F.R. § 4.59. As noted, he has been afforded the opportunity to describe symptoms he associates with this disability during his August 2017, December 2019 VA examinations, and podiatry visits. The record shows he has discussed pain in certain environments, like cold weather. Although he has reported pain when using equipment, like a tractor, he has not provided enough information to decide if such pain is attributable to movement of the joint or some other factor. 

A remand to further investigate the Veteran's observed pain is not warranted in this case because there are ample lay statements in the record expressing he does not observe pain at his left foot. During his multiple podiatry visits, he was asked about symptoms observed around the feet, like pain, numbness, tingling. His reports of pain were limited to the arches of his feet. See March 2014 VAMC Record by Dr. T.S. Although those podiatry visits were focused on evaluating his feet, the record shows he discussed his ankle disability when describing his foot problems. See July 2007 VAMC Record by Dr. B.P. Combined with his history of describing his ankle disability as a foot problem, the Board finds it is likely he would have reported ankle problems around the time of the podiatry visits, if observed. See August 2006 VA 21-526 (claim for broken left foot). 

If there are doubts the Veteran learned to distinguish between foot and ankle problems, the December 2019 VA DBQ also weighs against finding painful motion. During that examination, he again did not report pain when moving his ankle. Given that he was specifically asked about his ankle disability, the Board finds it is likely he would have reported painful motion at such time. Based on the absence of such reports during the August 2017 and December 2019 VA examinations, the Board finds the assignment of a compensable rating based on painful motion is not warranted. 

In sum, the evidence in the claims file does not show that the severity of the Veteran's left ankle disability (residuals of fracture left tibia) warrants a compensable rating under DC 5271 (or any other code) at any time during the appeal period. Hart, 21 Vet. App. at 505. 

3. Entitlement to a compensable rating for COPD before August 1, 2020, and  a greater than 50 percent rating for OSA with COPD on and after that date. 

Given that the Veteran was separately rated for COPD and OSA before August 1, 2020, the questions for the Board are whether a separate compensable COPD-rating was available during the appeal period before August 1, 2020. Also, whether his overall disability picture warranted a greater than 50 percent rating. Regarding the first question, a separate compensable COPD-rating before August 1, 2020, is prohibited under VA regulations. As to the second question, the evidence does not support the assignment of a greater than 50 percent rating on and after that date.  

VA regulations do not allow certain respiratory disorders, to include COPD (DC 6604) and OSA (6847) to be combined with each other. Instead, a single rating will be assigned under the diagnostic code that reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. This means, VA will evaluate coexisting service-connected respiratory conditions covered by 38 C.F.R. § 4.96 under predominant disability's rating criteria. Urban v. Shulkin, 29 Vet. App. 82, 89, 90-91 (2017).

Contrary to 38 C.F.R. § 4.96, the Veteran's service-connected COPD was rated separately from OSA before August 1, 2020. His COPD was rated under DC 6604 (COPD). Under 6604, a 10 percent rating is assigned for Forced Vital Capacity in one second (FEV-1) of 71 to 80 percent predicted, or; FEV-1 to Forced Vital Capacity (FEV-1/FVC) or 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method (DLCO (SB)) 66 to 80 percent predicted. 

The next higher rating under DC 6604, is a 30 percent rating. A 30 percent rating is assigned 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. The next higher rating, a 60 percent rating, is assigned 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). The next higher rating under DC 6604 is a 100 percent rating. A 100 percent rating is assigned 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.

Special provisions apply to the application of the rating criteria for certain diagnostic codes, to include DC 6604. 38 C.F.R. § 4.96(d). Pulmonary function testing (PFT) is required to evaluate these conditions, except when the results of maximum exercise capacity test are of record and are 20 ml/kg or less; when pulmonary hypertension cor pulmonale or right ventricular hypertrophy has been diagnosed; or when there have been one or more episodes of acute respiratory failure. 38 C.F.R. § 4.96(d)(1).

On and after August 1, 2020, the Veteran's COPD is rated with OSA under DC 6604-6847. He has been assigned a 50 percent rating under 6604-6847 from August 1, 2020. Under 6847, a 50 percent rating, is assigned when the sleep disorder requires the use of a breathing assistance device, such as CPAP machine. The next higher rating, a 100 percent rating, is warranted for sleep apnea that causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy. 38 C.F.R. § 4.97.

Beginning with a short history of the Veteran's COPD and OSA disabilities, he was granted service-connection for COPD in a March 2007 rating decision. He was initially assigned a 30 percent rating; the rating was based on tests showing an FEV-1 score of 65 percent predicted. See Rating Decision at 3. Then, in October 2007, the AOJ granted service-connected for OSA; it was initially assigned a 50 percent rating based on his use of a CPAP machine. See Rating Decision at 2. His OSA and COPD were rated separately, with COPD rated under DC 6604 while OSA was rated under 6847.

Following a June 2008 private medical examination, the validity of the Veteran's COPD was questioned. The June 2008 examiner noted PFT testing did not indicate the presence of a respiratory disorder. See June 2008 Private Medical Record (PMR) by J.R., MD. The AOJ then requested testing to determine the status of the Veteran's COPD disorder; an October 2008 examination was conducted; the examiner reviewed chest X-rays and concluded there is no evidence of COPD. See VA DBQ. Initially the AOJ sought to sever the COPD rating but ultimately reduced the rating from 30 to 0 percent disabling. See November 2009 Rating Decision. This noncompensable rating was based on the October 2008 testing showing normal chest X-rays and normal PFTs. Id. at 2. The Veteran was informed of the November 2009 decision but did not appeal the rating reduction.

A June 2013 PFT was conducted by SSA. The SSA examiner who conducted the PFT report noted a FEV-1 score of 75.52 percent predicted (pre-bronchodilator) and FEV-1/FVC of 84.82 percent (pre-bronchodilator); DLCO SB scores were not provided. See PFT Report at 4. During this period the Veteran continued to be separately rated for COPD (0 percent) and OSA (50 percent)

In April 2017 the VA received an increased rating claim for COPD. The Veteran then underwent an August 2017 VA examination of COPD. He reported he observed problems breathing in dusty, humid conditions, which is what he observed at his job at Goodwill (August 2017 to November 2018). See VA DBQ at 2, 3. The August 2017 examiner expressed confusion about how the Veteran was diagnosed with the disorder and ordered an additional PFT to determine the status of COPD. Id. at 3. Because the results of additional PFT were not incorporated into the record, the Board remanded the claim for further development; specifically, a VA examination of COPD. See May 2019 Board Remand. 

Diagnostic testing conducted in June 2019 provided FEV-1 scores of 77 percent predicted and FEV-1/FVC of 113 percent; DLCO SB scores were not provided. The Veteran underwent additional testing in December 2019, with similar scores noted on the PFT report. The December 2019 PFT report noted FEV-1 of 80 percent, FEV-1/FVC of 108 percent, and DLCO/VA at 112, but the results do not indicate that the single breath method testing required by the rating schedule was performed. 

In May 2020, the AOJ issued a rating decision informing the Veteran it was clear and unmistakable error to have rated COPD and OSA separately. Accordingly, the two disorders would be rated together from August 1, 2020. The AOJ denied a compensable rating for COPD before August 1, 2020, because VA regulations do not allow more than one rating to be assigned for his particular respiratory disorders. For the period on and after that date, the Veteran's obstructive sleep apnea with COPD was rated 50 percent disabling. That rating is based on the symptoms manifested by OSA, which include use of a CPAP machine but not chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that a tracheostomy is required. See October 2007 Rating Decision at 2. 

During his most recent VA examination of OSA (December 2019), he reported it does not cause daytime fatigue unless he fails to use his CPAP machine. See June 2019 VA DQQ at 2. Those occasions follow events like power outages. Based on his recollection, he has been unable to use a CPAP on two occasions over the last 12-months. Id. at 3, 4. The VA examiner who evaluated the Veteran opined his sleep disorder limits him to sedentary work. See June 2019 Individual Unemployability Statement. 

A.	Entitlement to a separate 10 percent rating for COPD before August 1, 2020.

After reviewing the record, the Board finds the criteria for a 10 percent rating under DC 6604 (COPD) were met. But because VA regulations prohibit the assignment of separate compensable ratings for certain respiratory disorders, to include COPD (6604) and OSA (6847), the compensation level must be based on his overall respiratory disability picture 38 C.F.R. § 4.97. Based on the evidence in the claims file, his respiratory disability picture was properly rated as 50 percent disabling. 

Regarding the severity of the Veteran's COPD disability, he reported he observed breathing problems in particular environments. See August 2017 VA DBQ at 2, 3 (noting reports of problems breathing in dusty, humid conditions); September 2019 VAMC Record by Dr. E.H. (noting reports of shortness of breath with exertion and hot environments). Despite his observed breathing problems, disability ratings are based on results from specific kinds of testing. For the lowest compensable rating (a 10 percent rating) under DC 6604, PFT testing must show an FEV-1 of 71 to 80 percent, predicted; or FEV-1/FVC of 71 to 80 percent; or DCLO SB of 66 to 88 percent predicted. Higher ratings require FEV-1 less than 70 percent predicted or FEV-1/FVC less than 55 percent; or DLCO SB less than 55 percent. 38 C.F.R. § 4.97. 

The June 2019 PFT report showed FEV-1 results that meet the criteria DC 6604 lists as 10 percent disabling. The report noted an FEV-1 score of 77 percent predicted (post-bronchodilator). Similarly, the December 2019 PFT report shows FEV-1 score of 80 percent predicted. This report is more complete than the June 2019 report as it provides all the scores 6604 allows to evaluate respiratory disorders; specifically, FEV-1, FEV-1/FVC, and DLCO SB. 38 C.F.R. § 4.96. 

Although the June and December 2019 PFT reports show FEV-1 scores that meet the criteria DC 6604 rates as 10 percent disabling, the rating cannot be assigned because he was already receiving a separate 50 percent rating for OSA under 6847. Rather than separately evaluate the two respiratory disorders as VA generally does for other disorders, 38 C.F.R. § 4.96 provides that they must be evaluated under the diagnostic code of the predominant disability. Urban v. Shulkin, 29 Vet. App. 82, 89, 90-91 (2017).  

When looking at the effects of his COPD and OSA individually, it is apparent to the Board the predominant disability is OSA. His COPD impacts his physical abilities in specific kinds of environments, like dusty environments. See August 2017 VA DBQ (noting Veteran he observed problems breathing in dusty, humid conditions); September 2019 VAMC Report by E.H., MD (Veteran reported history of shortness of breath that is worse with exertion and hot environments). But OSA impacts his ability to engage in physical activities generally as it limits him to sedentary work. See June 2019 Individual Unemployability Statement. 

Even though the Veteran's COPD symptomatology met the criteria for a 10 percent rating, it does not warrant a greater than 50 percent rating for OSA with COPD before August 1, 2020, under the provisions of 38 C.F.R. § 4.96. In order to receive an increased rating under § 4.96, his COPD symptoms must worsen his overall disability picture. Id. at (a). Given that OSA already limited the Veteran to sedentary workand there is no evidence showing his COPD symptoms pose greater limitationsa rating greater than 50 percent based on his overall disability picture is not warranted. Accordingly, the Veteran's increased rating claim for COPD must be denied. 

 

B. Entitlement to an increased disability rating greater than 50 percent under DC 6604-6847 on and after August 1, 2020.

After reviewing the record, the Board finds the Veteran's OSA with COPD does not warrant a greater than 50 percent rating. Based on the evidence from August 1, 2020, the Veteran's sleep disorder has not worsened. He has not alleged any worsening of symptoms since his most recent (June 2019) VA examination. Neither does the record indicate his disability has started to manifest symptoms that warrant a greater than 50 percent rating under DC 6847, to include chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that a tracheostomy is required. 38 C.F.R. § 4.97. Accordingly, a disability rating greater than 50 percent based on symptoms attributable to OSA with is not warranted at this time. 

REASONS FOR REMAND

1. Entitlement to a compensable rating before June 25, 2019, and a greater than 10 percent rating thereafter for left and right knee patellofemoral syndrome (PFS) are remanded.

Although the Board regrets the delay, his increased rating claims for left, right knee PFS must be remanded for another VA examination. During the June 2019 VA knee examination, he reported flare ups that caused him to stop engaging in activities entirely. See VA DBQ at 9. Although the examiner noted there is no additional loss of motion on flare-ups than shown during initial range of motion testing, it did not show significant loss of motion (0 to 110 degrees for flexion and 110 to 0 degrees for extension). So, it is not apparent to the Board how the Veteran can observe minimal loss of motion while at the same time lack the ability to engage in activities at all. Without more, the Board cannot determine the severity of his knee disabilities on flare-ups. Another VA examination is warranted in order to capture the current severity of his service-connected knee disabilities more fully. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Sharp, 29 Vet. App. at 34-35; Chavis, 34 Vet. App. at 10-12.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

Also, the examiner should respond to the question below.

a. Discuss the Veteran's reports during the June 2019 VA examination. He reported that on flare-ups, he must stop engaging in activities. Explain whether factors, to include pain, weakness, fatigue, and lack of endurance caused limited motion so severe it is effectively ankylosed and in what position.

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dean, Michael S.

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.