THORACOLUMBAR SPINE LIMITATION OF MOTION

Summary

The veteran, who served from December 1982 to September 1996, appeals decisions regarding his thoracolumbar disability, obstructive sleep apnea, bronchiectasis, fibromyalgia, and chronic obstructive pulmonary disease (COPD). The Board granted service connection for obstructive sleep apnea and bronchiectasis, finding that while continuous symptoms were not shown since service, the evidence was in approximate balance regarding aggravation by service-connected COPD. The Board applied the benefit of the doubt to grant these claims. The claim for restoration of a 20 percent rating for thoracolumbar disability was granted, as the Board found the prior reduction improper due to an inadequate VA examination and lack of clear evidence of sustained improvement. The claim for service connection for fibromyalgia was denied, as the supplemental evidence submitted was neither new nor relevant. The claim for an increased rating for COPD was denied, as the evidence did not meet the criteria for a higher evaluation based on pulmonary function tests and symptom severity.

Rationale

Rating reduction improper due to inadequate VA exam; Lack of clear evidence of sustained improvement; Protection for ratings in effect for five years or more applied

Full Decision Text

Citation Nr: A26034449
Decision Date: 04/14/26	Archive Date: 04/14/26

DOCKET NO. 250530-571121
 DATE: April 14, 2026

ORDER

Restoration of a 20 percent rating effective September 26, 2024, for thoracolumbar residuals of osteoporosis with vertebral fracture status post kyphoplasty and degenerative arthritis (thoracolumbar disability) is granted.

Entitlement to service connection for obstructive sleep apnea is granted.

Entitlement to service connection for bronchiectasis is granted.

New and relevant evidence having not been submitted, readjudication of the previously denied claim for entitlement to service connection of fibromyalgia is denied.

Entitlement to a rating in excess of 30 percent prior to October 9, 2023, and in excess of 60 percent thereafter for chronic obstructive pulmonary disease (COPD) is denied.

FINDINGS OF FACT

1. The evidence does not clearly demonstrate that the Veteran's thoracolumbar disability, which had been rated at 20 percent for over five years, had shown sustained improvement in function that would be maintained under the conditions of ordinary life. 

2. The evidence is in approximate balance as to whether the Veteran's obstructive sleep apnea and bronchiectasis are caused or exacerbated by his service-connected COPD. 

3. New and relevant evidence has not been received with respect to the December 2024 supplemental claim for entitlement to service connection for fibromyalgia.

4. Prior to October 9, 2023, the Veteran's service-connected COPD manifested in a level of disability most accurately reflected by an FEV-1, FEV-1/FVC, or DLCO greater than 55, and daily inhalational or oral bronchodilator therapy without requiring intermittent courses of systemic corticosteroids or monthly visits to a physician for required care of exacerbations. 

5. Since October 9, 2023, the Veteran's service-connected COPD has not manifested in a level of disability most accurately reflected by an FEV-1, FEV-1/FVC, or DLCO less than 40 percent; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiac or respiratory limitation; cor pulmonale; right ventricular hypertrophy; pulmonary hypertension; episodes of acute respiratory failure; outpatient oxygen therapy; more than one asthma attack per week with episodes of respiratory failure; or daily use of systemic high-dose corticosteroids or immunosuppressive medications. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to restoration of a 20 percent rating effective September 26, 2024, for thoracolumbar disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.2. 

2. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

3. The criteria for entitlement to service connection for bronchiectasis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

4. The criteria for readjudication of the previously denied claim for entitlement to service connection of fibromyalgia have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501.

5. The criteria for entitlement to a rating in excess of 30 percent prior to October 9, 2023, and in excess of 60 percent thereafter for COPD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.96, 4.97, Diagnostic Codes (DCs) 6602, 6604.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1982 to September 1996. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of November 2024, December 2024, and February 2025 decisions and an October 2024 higher-level-review decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). 

In the May 2025 Notice of Disagreement, the Veteran elected the Direct Review docket.
; 38 C.F.R. § 4.1, 4.96, 4.97, Diagnostic Codes (DCs) 6602, 6604.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1982 to September 1996. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of November 2024, December 2024, and February 2025 decisions and an October 2024 higher-level-review decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). 

In the May 2025 Notice of Disagreement, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2024 (thoracolumbar disability), December 2024 (bronchiectasis), and February 2025 (fibromyalgia and obstructive sleep apnea) AOJ decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

Regarding the claim for increased rating of COPD, the Board may only consider the evidence of record at the time of the September 2024 AOJ decision that was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

As a procedural note, the Veteran's initial May 2025 Notice of Disagreement was incomplete, and the Board requested he provide clarification in June 2025. Within 60 days, the Veteran submitted a July 2025 Notice of Disagreement including the requested information and one additional claim. Accordingly, the July 2025 Notice of Disagreement has been considered as filed on the date of the initial May 2025 Notice of Disagreement.  

Additionally, the Board notes that the Veteran has a separate appeal of a July 2025 AOJ decision also relating to increased rating of COPD. That stems from an August 2025 Notice of Disagreement, includes a different period on appeal and evidentiary window from the claim considered in this decision, has been separately docketed, and will be subject to a different Board decision. 

Rating Reductions

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288, 292 (1999). A VA rating reduction must be based upon review of the entire history of a veteran's disability, reconciling any contrary findings into a consistent picture. See 38 C.F.R. § 4.2. To uphold a reduction in rating, it must be shown that the weight of the evidence supports the reduction itself, including upon application of the benefit-of-the-doubt doctrine. See Brown, 5 Vet. App. at 420-21; Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). 

If the reduction of a disability rating also causes a reduction or discontinuance of compensation payments, then the AOJ must follow certain procedural requirements. This includes issuing a rating decision proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). 

For ratings that have been in effect for five years or more, VA regulations contain certain protections to provide for the stabilization of assigned disability evaluations. 38 C.F.R. § 3.344. This includes a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination upon which a reduction is based was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings for diseases subject to temporary or episodic improvement cannot be reduced based on any
 procedural requirements. This includes issuing a rating decision proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). 

For ratings that have been in effect for five years or more, VA regulations contain certain protections to provide for the stabilization of assigned disability evaluations. 38 C.F.R. § 3.344. This includes a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination upon which a reduction is based was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings for diseases subject to temporary or episodic improvement cannot be reduced based on any one examination except where all evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life and work. 38 C.F.R. § 3.344; see also Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993).

To uphold a reduction in rating, it must be shown that the weight of the evidence supports the reduction itself, including upon application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107(b), as required. See Brown, 5 Vet. App. at 420-21; Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). 

1. Rating restoration for thoracolumbar disability

The Veteran seeks restoration of a 20 percent rating for thoracolumbar disability. After reviewing the evidence, the Board finds that the evidence does not clearly demonstrate sustained improvement in function that would be maintained under the conditions of ordinary life, and the rating reduction was improper. 

As an initial matter, the Board notes that the Veteran's rating reduction did not result in a reduction or discontinuance of his compensation payments. For this reason, the procedural requirements of 38 C.F.R. § 3.105(e) do not apply, and the AOJ was not required to issue a rating decision proposing the reduction and setting forth all material facts and reasons.

Next, the Board considers whether sustained functional improvement has been clearly demonstrated. In this case, the Veteran's thoracolumbar disability was rated at 20 percent from November 2011 until the September 2024 reduction. Because this period is more than five years, the expanded protections for stabilization of disability ratings apply. See 38 C.F.R. § 3.344; Brown v. Brown, 5 Vet. App. 413, 418 (1993). 

In this case, the November 2024 AOJ decision on appeal relied solely on a September 2024 VA examination to determine that improvement had been shown in the Veteran's thoracolumbar disability. However, because this condition was subject to temporary or episodic improvement such as flareups, a reduction could not be based solely on any one examination except where all evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life and work. See 38 C.F.R. § 3.344

Moreover, the September 2024 VA examination indicated that the Veteran's thoracolumbar disability was subject to flareups every four to six weeks lasting six to 24 hours. During flareups, the examiner indicated that the Veteran would have limited ability to move and participate in any activities, but they later estimated that the Veteran's range of motion would be unaffected during flareups. This apparent inconsistency was not explained by the examiner. The Board finds that this examination was inadequate to support a reduction. 

Considering the above, the Board finds that the evidence does not clearly demonstrate sustained improvement in function that will be maintained under the conditions of ordinary life. The claim for rating restoration is granted. 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Generally, the evidence must show the existence of a present disability, an in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service ("nexus"). Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A showing of continuity of symptoms from separation to the present is a factor to be considered in assessing service connection claims.

A disability may also be
 or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Generally, the evidence must show the existence of a present disability, an in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service ("nexus"). Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A showing of continuity of symptoms from separation to the present is a factor to be considered in assessing service connection claims.

A disability may also be service connected on a secondary basis by demonstrating that the disability is either proximately due to or the result of an already service-connected disease or injury or aggravated by an already service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Considering all evidence of record, if the positive and negative evidence is in approximate balance, or nearly equal, then the veteran receives the benefit of the doubt. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).

2. Service connection for obstructive sleep apnea

The Veteran seeks service connection for obstructive sleep apnea which he contends is secondary to service-connected respiratory conditions. After reviewing the evidence, the Board finds that service connection is warranted. 

First, in a prior December 2024 decision, the AOJ denied a claim for service connection of obstructive sleep apnea. The Veteran filed a supplemental claim for this issue in February 2025. Since the prior December 2024 denial, new VA treatment records were received that supported the presence of a current diagnosis of sleep apnea. Accordingly, new and relevant evidence was received regarding this claim, and the Board may proceed to readjudicate the merits of the claim.

Next, prior AOJ decisions have included favorable findings that the Veteran has a current diagnosis of obstructive sleep apnea. The Board adopts this favorable finding. See 38 C.F.R. § 3.104.

The Board then considers whether the evidence shows continuous symptoms since service. Here, the Veteran's service treatment records show that he did not have complaints, symptoms, or treatment related to sleep apnea during service. Post-service treatment records are also silent for sleep apnea or related symptoms. A November 2019 treatment titration sleep study notes sleep apnea was diagnosed initially in or around October 2018. VA examinations from September 2023 and November 2024 noted obstructive sleep apnea as diagnosed in 2019. During the September 2023 VA examination, the Veteran reported his symptoms started in 2015. Accordingly, neither the clinical evidence nor the Veteran's self-reports support a finding of continuous symptoms since his separation from service in September 1996. 

Finally, despite the lack of continuous symptoms, service connection may be warranted if the evidence otherwise indicates a relationship between the Veteran's current disability and active-duty service. In this case, there is conflicting evidence, but the evidence is in approximate balance as to whether the Veteran's obstructive sleep apnea is aggravated by his service-connected respiratory conditions. 

Specifically, a September 2024 VA medical opinion concluded that the Veteran's sleep apnea appeared to be linked to factors including his COPD and emphysema. These disabilities were not service connected at the time this opinion was rendered. In an October 2024 addendum opinion, the same clinician listed COPD as a "common cause" of obstructive sleep apnea, and they further noted that the Veteran's COPD and emphysema may worsen his condition. This opinion was conclusory, but it was not wholly inadequate.  

On the other hand, in a November 2024 VA medical opinion, a different clinician stated that the Veteran's sleep apnea was less likely than not aggravated beyond its natural progression by COPD. In supporting this opinion, they said that obstructive sleep apnea and COPD often coexist, but there was not a causal relationship between these conditions. Despite providing an opinion on aggravation, this opinion's rationale only discussed causal relationships. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, the Board finds that the negative November 2024 medical opinion was not more probative than the positive September 2024 VA medical opinion. 

Accordingly, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's service-connected
 stated that the Veteran's sleep apnea was less likely than not aggravated beyond its natural progression by COPD. In supporting this opinion, they said that obstructive sleep apnea and COPD often coexist, but there was not a causal relationship between these conditions. Despite providing an opinion on aggravation, this opinion's rationale only discussed causal relationships. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, the Board finds that the negative November 2024 medical opinion was not more probative than the positive September 2024 VA medical opinion. 

Accordingly, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's service-connected COPD caused or aggravated his obstructive sleep apnea. In affording him the benefit of the doubt, the Board finds that a nexus is established, and service connection is warranted. The claim is granted. 

3. Service connection for bronchiectasis

The Veteran seeks service connection for bronchiectasis. After reviewing the evidence, the Board finds that service connection is warranted. 

First, the December 2024 AOJ decision on appeal included a favorable finding that the Veteran had a current disability of bronchiectasis. The Board adopts this favorable finding. See 38 C.F.R. § 3.104.

Next, the Board considers whether continuous symptoms have been shown since service. The Veteran's service treatment records generally described normal lungs and chest without shortness of breath, chest pain, or chronic cough including on medical examinations and histories from February 1983, February 1985, July 1985, December 1988, September 1992, June 1995, and December 1995. 

Post-service treatment records initially were negative for chronic respiratory complaints, symptoms, and conditions such as coughing or shortness of breath, and his lungs were generally noted to be clear. However, respiratory conditions including COPD since at least May 2016. Bronchiectasis is referenced in VA treatment records in October 2019 as a provisional diagnosis. Private treatment records note the condition since at least January 2020. 

A November 2024 VA examination documented multiple respiratory conditions including bronchiectasis initially diagnosed in 2019. He had a productive cough intermittently, required antibiotic use almost continuously, but had not had any incapacitating episodes of infection due to bronchiectasis. At that time, the Veteran had reported that his respiratory symptoms began with shortness of breath with exertion in 2015. 

Accordingly, neither the clinical evidence nor the Veteran's lay statements support a finding of continuous symptoms since his separation from service. His respiratory conditions did not arise until several decades later.  

Next, the Board considered whether the evidence otherwise indicates a relationship between the Veteran's current disability and active-duty service. In this case, the evidence is in approximate balance as to whether the Veteran's obstructive sleep apnea is aggravated by his service-connected COPD. 

In this regard, a December 2024 VA medical opinion stated that the Veteran's bronchiectasis was less likely than not caused by his asthma, interstitial fibrosis, or COPD. However, they indicated that an aggravation opinion should be considered. They specifically noted that the presence of COPD may worsening pulmonary function and accelerate the progression of bronchiectasis. No specific aggravation opinion was provided by the examiner, and none was requested by the AOJ. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013).

Considering this evidence, the Board finds the evidence is in approximate balance as to whether the Veteran's bronchiectasis was aggravated by his service-connected COPD. Therefore, the Veteran is afforded the benefit of the doubt, and service connection is warranted. The claim is granted. 

In making this finding, the Board notes that the Veteran already receives compensation for service-connected respiratory conditions, and generally the regulations only provide a single rating for respiratory conditions. See 38 C.F.R. § 4.96(a). As such, the Veteran's respiratory conditions, including bronchiectasis, will most likely continue to be evaluated as a single rating under whichever respiratory condition is determined to be his predominant disability. 

4. Service connection for fibromyalgia

The Veteran seeks service connection for fibromyalgia, which was previously denied in a September 2024 AOJ decision. 

To warrant readjudication of a previously denied claim under the Appeals Modernization Act (AMA), a claimant must submit a supplemental claim including new and relevant evidence that was not of record as of the date of notice of the prior decision. 38 C.F.R. § 3.2501(b). If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will read
, including bronchiectasis, will most likely continue to be evaluated as a single rating under whichever respiratory condition is determined to be his predominant disability. 

4. Service connection for fibromyalgia

The Veteran seeks service connection for fibromyalgia, which was previously denied in a September 2024 AOJ decision. 

To warrant readjudication of a previously denied claim under the Appeals Modernization Act (AMA), a claimant must submit a supplemental claim including new and relevant evidence that was not of record as of the date of notice of the prior decision. 38 C.F.R. § 3.2501(b). If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.2501(b). New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(2). 

In December 2024, the Veteran filed a supplemental claim seeking to readjudicate the claim that was denied in September 2024. However, the only evidence submitted with this claim was a 1997 examination that was already part of the record prior to the September 2024 AOJ decision. This evidence was not new. See 38 C.F.R. § 3.2501(a).

Additional VA treatment records and VA examinations were also acquired by VA since the previous denial. However, these did not pertain to fibromyalgia or related symptoms. Therefore, the Board finds that, while there was some new evidence received, it did not tend to prove or disprove any matter at issue in a claim. Therefore, the evidence was not relevant. See 38 C.F.R. § 3.2501(a).

Accordingly, because new and relevant evidence has not been received, readjudication of the claim of entitlement to service connection for fibromyalgia is not warranted. The claim is denied. 

In making this finding, the Board notes that the February 2025 AOJ decision on appeal included a boilerplate introduction stating that new and relevant evidence had been received. However, the decision and the full rationale clearly stated that the claim was being denied because there was not new and relevant evidence. In light of the contradictory findings, and having reviewed the evidence, the Board finds that the statement that new and relevant evidence had been received constitutes a clear and unmistakable error, and the favorable finding is not binding on the Board. See 38 C.F.R. § 20.801(a). 

Increased Ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability negatively affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptoms with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

5. Rating for COPD

The Veteran seeks an increased rating for COPD. After reviewing the evidence, the Board finds that an increased rating is not warranted. 

The Veteran's COPD was rated at 30 percent under DC 6604 (COPD) prior to October 9, 2023. This diagnostic code provides the following evaluations: 

"	Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted values, or the ratio of FEV-1 to Forced Vital Capacity (FVC) of 71 to 80 percent, or Diffusion Capacity of the Lung for Carbon Monoxide (DLCO) of 66 to 80 percent predicted (10 percent); or

"	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 (30 percent); or

"	FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of
) of 71 to 80 percent predicted values, or the ratio of FEV-1 to Forced Vital Capacity (FVC) of 71 to 80 percent, or Diffusion Capacity of the Lung for Carbon Monoxide (DLCO) of 66 to 80 percent predicted (10 percent); or

"	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 (30 percent); or

"	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 (60 percent); or

"	FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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 (100 percent). 

38 C.F.R. § 4.97, DC 6604. 

Since October 9, 2023, his combined respiratory conditions have been rated at 60 percent under DC 6604-6602 (bronchial asthma). This diagnostic code provides the following ratings: 

"	FEV-1 of 71 to 80 percent predicted, or FEV-1/FVC of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy (10 percent); or

"	FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication (30 percent); or 

"	FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids (60 percent); or

"	FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications (100 percent).

38 C.F.R. § 4.97, DC 6602. 

Ratings under DC 6600 through 6817 and 6822 through 6847 are not combined. A single rating is 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. 38 C.F.R. § 4.96(a). When evaluating based on pulmonary function testing, post-bronchodilator results are used to apply the evaluation criteria unless they were poorer than the pre-bronchodilator results, in which case pre-bronchodilator results are used. When there is a disparity between the results of different pulmonary function tests such that the level of evaluation would differ depending on which test result is used, VA uses the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d). 

Turning to the medical evidence, VA treatment records show that pulmonary function testing showed moderately severe obstructive impairment in August 2023. He had an FEV-1 of 59 percent predicted values, and FEV-1/FVC ratio of 75 percent. A DLCO of 42 percent was noted. The test noted that the Veteran used inhalers prior to testing, but labeled the data as pre-bronchodilator results. The clinician did not indicate which metric most accurately reflected the Veteran's level of disability.

A September 2023 VA examination diagnosed emphysema, asthma, and COPD with COPD noted as the predominant condition. He reported treatment of daily inhalational bronchodilator therapy and anti-inflammatory medications, and he took an antibiotic (Azithrom
 function testing showed moderately severe obstructive impairment in August 2023. He had an FEV-1 of 59 percent predicted values, and FEV-1/FVC ratio of 75 percent. A DLCO of 42 percent was noted. The test noted that the Veteran used inhalers prior to testing, but labeled the data as pre-bronchodilator results. The clinician did not indicate which metric most accurately reflected the Veteran's level of disability.

A September 2023 VA examination diagnosed emphysema, asthma, and COPD with COPD noted as the predominant condition. He reported treatment of daily inhalational bronchodilator therapy and anti-inflammatory medications, and he took an antibiotic (Azithromycin) three times weekly. He did not require oral or parenteral corticosteroid medications, or outpatient oxygen therapy, or oral bronchodilators. He had no asthma attacks with respiratory failure within the past 12 months, and he had no physician visits for required care of exacerbations. 

Accompanying pulmonary function testing was performed in October 2023. This showed post-bronchodilator FEV-1 value of 54 percent predicted, and FEV-1/FVC ratio of 58.89 percent. The FEV/FVC ratio was noted as most accurately reflecting the Veteran's level of disability. The examiner stated that DLCO testing was not indicated in the Veteran's case. 

Pulmonary function testing from April 2024 showed post-bronchodilator FEV-1 of 55 percent predicted values with a FEV-1/FVC ratio of 71 percent. His DLCO was 36 percent predicted values. The records within the relevant evidence window do not indicate which measure most accurately reflected the Veteran's level of disability.

Finally, after the rating decision on appeal, a December 2024 higher-level-review AOJ decision found that the Veteran's service-connected respiratory conditions manifested as daily inhalation therapy, daily oral bronchodilator therapy, and a FEV-1 of 55 percent predicted value effective October 9, 2023. The basis for the effective date is unclear, as it conflicts with the October 2023 pulmonary function testing. It appears to rely on evidence including a VA examination outside the evidentiary window for this claim. However, the Board is bound by this finding because it is not clear and unmistakable error, as it may consider evidence outside that before the Board. See 38 C.F.R. § 3.104.

Considering the above evidence, the Board finds that, prior to October 9, 2023, the Veteran's service-connected COPD manifested in a level of disability most accurately reflected by an FEV-1, FEV-1/FVC, or DLCO greater than 55, and daily inhalational or oral bronchodilator therapy without requiring intermittent courses of systemic corticosteroids or monthly visits to a physician for required care of exacerbations. Accordingly, a rating in excess of 30 percent is not warranted during this period. 

In making this finding, the Board acknowledges that August 2023 pulmonary function testing showed a DLCO of below 55 percent; however, the accompanying FEV-1 value and FEV-1/FVC ratio were above 55 percent, and there was not an examiner statement as to which value most accurately reflected the level of disability. Moreover, the test results were labeled as pre-bronchodilator although there was some indication that the Veteran had taken some medication prior to testing. In testing performed two months later, an examiner indicated that his FEV-1/FVC ratio most accurately reflected the Veteran's level of disability. 

The Board further finds that, since October 9, 2023, the Veteran's COPD has not manifested in a level of disability most accurately reflected by an FEV-1, FEV-1/FVC, or DLCO less than 40 percent; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiac or respiratory limitation; cor pulmonale; right ventricular hypertrophy; pulmonary hypertension; episodes of acute respiratory failure; outpatient oxygen therapy; or more than one asthma attack per week with episodes of respiratory failure, daily use of systemic high-dose corticosteroids or immunosuppressive medications. Therefore, a rating in excess of 60 percent is not warranted during this period. 

The claim for increased rating of COPD is denied. 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. 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Heger 


 of acute respiratory failure; outpatient oxygen therapy; or more than one asthma attack per week with episodes of respiratory failure, daily use of systemic high-dose corticosteroids or immunosuppressive medications. Therefore, a rating in excess of 60 percent is not warranted during this period. 

The claim for increased rating of COPD is denied. 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. 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Heger