Citation Nr: 21009915 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-17 250 DATE: February 23, 2021 ORDER 1. Entitlement to an increased evaluation of degenerative arthritis, lumbar spine, currently evaluated as 20 percent disabling is denied. 2. Entitlement to an increased evaluation of degenerative arthritis, cervical spine, currently evaluated as 10 percent disabling is denied. 3. Entitlement to an increased evaluation of right hip strain with atypical bone cyst, currently evaluated as 10 percent disabling is denied. 4. Entitlement to an increased evaluation of retropatellar pain syndrome, right knee, currently evaluated as 10 percent disabling is denied. 5. Entitlement to an increased evaluation of retropatellar pain syndrome, left knee, currently evaluated as 10 percent disabling is denied. 6. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is denied. REMANDED Entitlement to service connection for asthma (claimed as lungs/basil nodes) is remanded. FINDINGS OF FACT 1. The Veteran failed, without good cause, to appear for his scheduled VA examination in connection with his claim of entitlement to an increased rating for a lumbar spine disability; moreover, the probative evidence of record does not document that the Veteran’s degenerative arthritis, lumbar spine, is manifest by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months. 2. The Veteran failed, without good cause, to appear for his scheduled VA examination in connection with his claim of entitlement to an increased rating for a cervical spine disability; moreover, the probative evidence of record does not document that the Veteran’s degenerative arthritis, cervical spine, is manifest by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding sever enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. The Veteran failed, without good cause, to appear for his scheduled VA examination in connection with his claim of entitlement to an increased rating for a right hip disability; moreover, the probative evidence of record does not document that the Veteran’s right hip strain with atypical bone cyst is manifested by flexion limited to 30 degrees or less. 4. The Veteran failed, without good cause, to appear for his scheduled VA examination in connection with his claim of entitlement to an increased rating for a right knee disability; moreover, the probative evidence of record does not document that the Veteran’s retropatellar pain syndrome, right knee, is manifested by flexion limited to 30 degrees or less. 5. The Veteran failed, without good cause, to appear for his scheduled VA examination in connection with his claim of entitlement to an increased rating for a left knee disability; moreover, the probative evidence of record does not document that the Veteran’s retropatellar pain syndrome, left knee, is manifested by flexion limited to 30 degrees or less. 6. During the period on appeal, the Veteran has not been precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative arthritis, lumbar spine, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a rating in excess of 10 percent for degenerative arthritis, cervical spine, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5242. 3. The criteria for a rating in excess of 10 percent for right hip strain with atypical bone cyst, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5252. 4. The criteria for a rating in excess of 10 percent for retropatellar pain syndrome, right knee, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5260. 5. The criteria for a rating in excess of 10 percent for retropatellar pain syndrome, left knee, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5260. 6. The criteria for entitlement to TDIU have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to October 2003 and from September 2004 to December 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 and a June 2013 rating decision issued by the Department of Veterans Affairs (VA) regional office (R.O.) located in Nashville, Tennessee. The Veteran was granted service connection and initial ratings for his lumbar and cervical spine, right hip and bilateral knee disabilities in a March 2011 rating decision. The Veteran filed a claim for entitlement to TDIU that same month, and entitlement to increased ratings for those and other disabilities were subsequently adjudicated in a June 2011 rating decision. More than a year later, on July 19, 2012, the Veteran filed another claim for entitlement to TDIU which led to the issuance of the June 2013 rating decision on appeal. Thus, the period on appeal, as to the issues of entitlement to increased ratings for the Veteran’s lumbar and cervical spine, right hip, bilateral knee disabilities, and TDIU spans from July 19, 2012. This matter was previously before the Board in February 2018, May 2019, and July 2020. After directed development following the July 2020 remand, the appeal has been returned to and is now before the Board again for further adjudication. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. In those situations, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. VA regulations provide that when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). In this regard, the Board emphasizes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 180 (1991). 1. Entitlement to an increased evaluation of degenerative arthritis, lumbar spine, currently evaluated as 20 percent disabling. The Veteran claims entitlement to an increased evaluation of his service-connected degenerative arthritis, lumbar spine, which is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5242. For the following reasons, the Board of Veterans’ Appeals (Board) finds that the Veteran is not entitled to an increased evaluation of his degenerative arthritis, lumbar spine. Under the current rating criteria, spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted when: forward flexion of the thoracolumbar spine is limited to greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine is limited to greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine is limited to greater than 120 degrees but not greater than 235 degrees; or, the combined range of motion of the cervical spine is limited to greater than 170 degrees but not greater than 335 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when: forward flexion of the thoracolumbar spine is limited to greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is limited to greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is limited to not greater than 120 degrees; or, the combined range of motion of the cervical spine is limited to not greater than 170 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted when: forward flexion of the cervical spine is limited to 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when there is: unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Code 5243. Normal ranges of motion of the thoracolumbar spine is flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Unfavorable ankylosis is defined as a condition in which the entire spine is fixed in flexion or extension and results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. Thus, considering the above, the question for the Board is whether the Veteran’s degenerative arthritis, lumbar spine, is manifest by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable or unfavorable ankylosis of the thoracolumbar (or entire) spine, or IVDS causing incapacitating episodes having a total duration of at least 4 weeks. The Veteran’s VA and private treatment records and his records from the Social Security Administration (SSA records) show that he has complained of back pain, but they do not evidence any findings of a limitation of the Veteran’s forward flexion of his thoracolumbar spine to 30 degrees or less or of ankylosis of the thoracolumbar spine. The Veteran was afforded VA examinations in November 2010, April 2011, February 2013, and November 2018, and range of motion measurements were taken during each of those examinations. None of those examinations evidence any limitation of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable or unfavorable ankylosis of any portion of the Veteran’s spine. And regarding those examinations, the Board notes that in its February 2018 remand and May 2019 remands, it found the February 2013 and November 2018 VA back conditions examinations inadequate because they do not satisfy the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). Also, in the May 2019 remand, the Board found the November 2018 VA back conditions examination inadequate because the examiner indicated that the Veteran did report flare-ups but failed to state what information and evidence was considered and explain why such evidence did not permit the examiner to offer an estimation of the functional loss during flare-ups in this case. However, despite those remands and the need for additional testing and discussion as cited therein, the Board finds that there is still no reason to wholly discard or discredit the range of motion findings and discussion of the absence of ankylosis that are set forth in the report of that examination. As such, the Board finds that the aforementioned findings of no limitation of forward flexion of the thoracolumbar spine to 30 degrees or less and of no ankylosis of any portion of the Veteran’s spine are indeed still probative evidence. Moreover, the Board notes that even with consideration of the available evidence in the Veteran’s claims file, including prior VA examinations, to the extent that they contain probative evidence regarding the Veteran’s lumbar spine range of motion, the Veteran’s claim is not warranted. Additionally, there is no other competent evidence in the claims file of any limitation of forward flexion of the thoracolumbar spine to 30 degrees or less or ankylosis of any portion of the Veteran’s spine, either, nor is there any competent evidence of IVDS of the thoracolumbar spine causing incapacitating episodes having a total duration of at least 4 weeks. Therefore, the Board finds that the evidence of record weighs against finding that the Veteran is entitled to an increased evaluation of his service-connected degenerative arthritis, lumbar spine. Additionally, in accordance with the May 2019 Board remand, arrangements were made to schedule the Veteran for an additional VA lumbar spine examination, but significantly, the Veteran declined the examination. See Compensation and Pension Inquiry dated June 14, 2019; Exam Details dated June 26, 2019. The June 2020 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed without good cause to report for the scheduled VA examinations, and also provided notice of the provisions of 38 C.F.R. § 3.655(b). Although the claims file does not include a copy of the letter notifying the Veteran of the date of his scheduled VA examinations, this fact alone does not constitute good cause for failure to report. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Critically, the Veteran has not disputed the report in the SSOC that he failed without good cause to report for the needed VA examinations, or asserted that he did not receive notice of the examinations. To the contrary, the record clearly reflects that he was contacted about scheduling the examinations and declined. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran’s claim of entitlement to an increased evaluation of his service-connected degenerative arthritis, lumbar spine, which is currently evaluated as 20 percent disabling, must be denied. 2. Entitlement to an increased evaluation of degenerative arthritis, cervical spine, currently evaluated as 10 percent disabling. The Veteran also claims entitlement to an increased evaluation of his service-connected degenerative arthritis, cervical spine, which is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Code 5242. For the following reasons, the Board finds that the Veteran is not entitled to an increased evaluation of his degenerative arthritis, cervical spine. Thus, considering the above, the question for the Board is whether the Veteran’s degenerative arthritis, cervical spine, is manifest by: forward flexion of the cervical spine limited to 30 degrees or less; the combined range of motion of the cervical spine limited to 170 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or IVDS causing incapacitating episodes having a total duration of at least 2 weeks. The Veteran’s VA and private treatment records and his SSA records show that he has complained of neck pain, but they do not evidence any findings of any such limitation of the forward flexion or combined range of motion of the Veteran’s cervical spine, muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, or IBDS. Nor do the reports of the above-mentioned November 2010, April 2011, February 2013, and November 2018 VA examinations. For the same reasons as discussed above, although the February 2013 and November 2018 VA examinations are incomplete and imperfect, the Board still finds the aforementioned findings noted therein to be probative. Further, there is no other competent evidence of any such limitations, muscle spasm or guarding, or IVDS of the cervical spine in the claims file. As such, the probative evidence of record weighs against the Veteran’s claim of entitlement to an increased evaluation of his service-connected degenerative arthritis, cervical spine. Additionally, as noted above, in accordance with the May 2019 Board remand, arrangements were made to schedule the Veteran for an additional VA cervical spine examination, but significantly, the Veteran declined the examination. See Compensation and Pension Inquiry dated June 14, 2019; Exam Details dated June 26, 2019. The June 2020 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed without good cause to report for the scheduled VA examinations, and also provided notice of the provisions of 38 C.F.R. § 3.655(b). Although the claims file does not include a copy of the letter notifying the Veteran of the date of his scheduled VA examinations, this fact alone does not constitute good cause for failure to report. See Kyhn, 716 F.3d 572. Critically, the Veteran has not disputed the report in the SSOC that he failed without good cause to report for the needed VA examinations, or asserted that he did not receive notice of the examinations. To the contrary, the record clearly reflects that he was contacted about scheduling the examinations and declined. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran’s claim of entitlement to an increased evaluation of degenerative arthritis, cervical spine, currently evaluated as 10 percent disabling, must be denied. 3. Entitlement to an increased evaluation of right hip strain with atypical bone cyst, currently evaluated as 10 percent disabling. The Veteran also claims entitlement to an increased evaluation of his service-connected right hip strain with atypical bone cyst, which is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Code 5299-5252. For the following reasons, the Board finds that the Veteran is not entitled to an increased evaluation of his service-connected right hip strain with atypical bone cyst. Under Diagnostic Code 5252, a 10 percent rating is warranted when thigh flexion is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, a 30 percent rating is warranted when it is limited to 20 degrees, and a 40 percent rating is warranted when it is limited to 10 degrees. Under Diagnostic Code 5251, a 10 percent rating is warranted when thigh extension is limited to 5 degrees. Under Diagnostic Code 5253, a 10 percent rating is warranted when there is limitation of thigh adduction so that the legs cannot be crossed or there is limitation of thigh rotation so that the Veteran cannot toe-out more than 15 degrees in the affected leg, and a 20 percent rating is warranted where thigh abduction motion is lost is lost beyond 10 degrees. Thus, considering the above, the question for the Board is whether the Veteran’s right hip strain with atypical bone cyst is manifest by or productive of: thigh flexion limited to 30 degrees or less; thigh extension limited to 5 degrees; limitation of thigh adduction so that the legs cannot be crossed; or limitation of thigh rotation so that the Veteran cannot toe-out more than 15 degrees in the affected leg. The Veteran’s VA and private treatment records and his SSA records show that he has complained of leg pain, and a November 2009 note in his service treatment records (STRs) shows that on MRI, an 8 mm lesion in his right femoral neck/head was found, and his differential diagnosis included enchondroma or a small, atypical appearance of a bone cyst. But these VA and private treatment records and SSA records do not evidence any findings of any such limitation of thigh motion. The November 2010, April 2011, February 2013, and November 2018 VA examinations do not reflect any findings of: thigh flexion limited to 30 degrees or less; thigh extension limited to 5 degrees; limitation of thigh adduction so that the legs cannot be crossed; or limitation of thigh rotation so that the Veteran cannot toe-out more than 15 degrees in the affected leg. Once again, the Board finds the February 2013 and November 2018 VA examinations probative, despite their incompleteness and partial inadequateness. There is no other competent evidence of any such limitations of motion in the claims file. Furthermore, the Board notes that there is also no competent evidence in the claims file of any ankylosis of the hip, flail joint of the hip, or impairment of the femur. Therefore, the Board finds that the probative evidence of record weighs against finding that the Veteran is entitled to an increased evaluation of his service-connected right hip strain with atypical bone cyst under any applicable diagnostic codes, including Codes 5250, 5251, 5252, 5253, 5254, or 5255. Additionally, as noted above, in accordance with the May 2019 Board remand, arrangements were made to schedule the Veteran for an additional VA hip examination, but significantly, the Veteran declined the examination. See Compensation and Pension Inquiry dated June 14, 2019; Exam Details dated June 26, 2019. The June 2020 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed without good cause to report for the scheduled VA examinations, and also provided notice of the provisions of 38 C.F.R. § 3.655(b). Although the claims file does not include a copy of the letter notifying the Veteran of the date of his scheduled VA examinations, this fact alone does not constitute good cause for failure to report. See Kyhn, supra. Critically, the Veteran has not disputed the report in the SSOC that he failed without good cause to report for the needed VA examinations, or asserted that he did not receive notice of the examinations. To the contrary, the record clearly reflects that he was contacted about scheduling the examinations and declined. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran’s claim of entitlement to an increased evaluation of right hip strain with atypical bone cyst, currently evaluated as 10 percent disabling, must be denied. 4. Entitlement to an increased evaluation of retropatellar pain syndrome, right knee, currently evaluated as 10 percent disabling. 5. Entitlement to an increased evaluation of retropatellar pain syndrome, left knee, currently evaluated as 10 percent disabling. The Veteran also claims entitlement to an increased evaluation of his service-connected right and left knee retropatellar pain syndrome, each of which are currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Code 5299-5260. For the following reasons, the Board finds that the Veteran is not entitled to an increased evaluation of his service-connected right and left knee retropatellar pain syndrome. Under diagnostic code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (diagnostic code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating is warranted where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. These ratings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under diagnostic code 5010, arthritis due to trauma substantiated by x-ray findings is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under diagnostic code 5257, recurrent subluxation or lateral instability warrants a 10 percent rating if it is slight in severity, a 20 percent rating if it is moderate in severity, and a 30 percent rating if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under diagnostic code 5258, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under diagnostic code 5259, the symptomatic removal of semilunar cartilage warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under diagnostic code 5260, limitation of flexion to 60 degrees warrants a 0 percent rating, limitation of flexion to 45 degrees warrants a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent rating, and limitation of flexion to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under diagnostic code 5261, limitation of extension to 5 degrees warrants a 0 percent rating, limitation of extension to 10 degrees warrants a 10 percent rating, limitation of extension to 15 degrees warrants a 20 percent rating, limitation of extension to 20 degrees warrants a 30 percent rating, limitation of extension to 30 degrees warrants a 40 percent rating, and limitation of extension to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Thus, as to these issues, the question for the Board is whether the Veteran’s knee disabilities cause or are manifest by limitation of flexion to 30 degrees or less, limitation of extension to 10 degrees or more, dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint, symptomatic removal of semilunar cartilage, or recurrent subluxation or lateral instability. The Veteran’s VA and private treatment records and his SSA records show that he has complained of knee pain, and that after complaining of left knee pain in February 2014, he was sent for x-rays of his left knee, the results of which revealed some very mild degenerative changes medially but were otherwise unremarkable. The Veteran was noted to have full active range of motion of his left knee. On follow-up in March 2014, the Veteran’s physician noted an impression of a probable left knee meniscal tear. However, the results of an MRI performed in April 2014 showed no evidence of medial or lateral meniscus tears or ligamentous injury, but the physician did note an impression of left knee chondromalacia of patella and possible tendinitis. But the Veteran’s VA and private treatment and SSA records do not reflect any findings of a limitation of the Veteran’s right or left knee flexion to 30 degrees or less, nor do they evidence any right or left knee recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, or limitation of extension to 10 degrees or more. The November 2010 VA examination indicates that on examination, the examiner determined that there was crepitus in both of the Veteran’s knees. However, the November 2010, April 2011, February 2013, and November 2018 VA examinations do not reflect any findings of a limitation of the Veteran’s right or left knee flexion to 30 degrees or less, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, or limitation of extension to 10 degrees or more. Neither does any other competent evidence of record. And as stated above, the Board finds these VA examination findings probative, despite their incompleteness. Therefore, the Board finds that the evidence weighs against finding that the Veteran is entitled to an increased evaluation of his service-connected right or left knee retropatellar pain syndrome, under any applicable diagnostic codes, including Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, and 5263. Additionally, as noted above, in accordance with the May 2019 Board remand, arrangements were made to schedule the Veteran for an additional VA knee examination, but significantly, the Veteran declined the examination. See Compensation and Pension Inquiry dated June 14, 2019; Exam Details dated June 26, 2019. The June 2020 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed without good cause to report for the scheduled VA examinations, and also provided notice of the provisions of 38 C.F.R. § 3.655(b). Although the claims file does not include a copy of the letter notifying the Veteran of the date of his scheduled VA examinations, this fact alone does not constitute good cause for failure to report. See Kyhn, supra. Critically, the Veteran has not disputed the report in the SSOC that he failed without good cause to report for the needed VA examinations, or asserted that he did not receive notice of the examinations. To the contrary, the record clearly reflects that he was contacted about scheduling the examinations and declined. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran’s claims of entitlement to increased evaluations of retropatellar pain syndrome, bilateral knees, each currently evaluated as 10 percent disabling, must be denied. 6. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU). As noted in the Board’s July 2020 remand, in this case, the Veteran has raised the issue of entitlement to a TDIU in connection with his claims for and during the pendency of his appeals for increased ratings for his orthopedic disabilities (i.e., his lumbar and cervical spine, right hip, and bilateral knee disabilities). As discussed in that remand, the Veteran requested withdrawal of the claim for TDIU and it was dismissed by the Board, but then, in March 2019, during the pendency of this appeal, the Veteran filed a new claim seeking entitlement to a TDIU. Thus, his TDIU claim is part and parcel of his claim for an increased rating for his orthopedic disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board also noted in that remand that there is evidence in the claims file that reflects that the Veteran’s service-connected orthopedic disabilities discussed above interfere with his ability to work. This form of TDIU claim is known as a Rice TDIU, because it was raised during the administrative appeal of the Veteran’s claim for an increased rating for his service-connected orthopedic disabilities; therefore, it is a component of that claim for benefits related solely to those disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). Such a claim is limited to the question of whether a veteran is unemployable exclusively due to the service-connected disability (or disabilities) on appeal. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is unable, by reason of his service-connected disability(ies), to secure or follow a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). There must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Here, during the period on appeal, the Veteran’s posttraumatic stress disorder (PTSD) is evaluated as 50 percent disabling from July 10, 2012 to June 15, 2015 and as 70 percent disabling from June 16, 2015; his obstructive sleep apnea with bilateral pulmonary nodules is evaluated as 50 percent disabling from December 22, 2010; his fibromyalgia is evaluated as 40 percent disabling from December 22, 2010; his diverticulitis, status post colectomy and irritable bowel syndrome is evaluated as 30 percent disabling from December 22, 2010; his degenerative arthritis of the lumbar spine is evaluated as 20 percent disabling from December 22, 2010; his degenerative arthritis of the cervical spine is evaluated as 10 percent disabling from December 22, 2010; his right hip strain with atypical bone cyst is evaluated as 10 percent disabling from December 22, 2010; his right knee retropatellar pain syndrome is evaluated as 10 percent disabling from December 22, 2010; his left knee retropatellar pain syndrome is evaluated as 10 percent disabling from December 22, 2010; his tinnitus is evaluated as 10 percent disabling from December 22, 2010; and his residual scars, status post colectomy, is evaluated as 0 percent disabling (i.e., noncompensable). His combined rating has been 100 percent disabling from July 10, 2012. As the Veteran’s combined schedular rating has been 100 percent throughout the period on appeal, his schedular rating is total throughout the period, and a TDIU may not be assigned. 38 C.F.R. § 4.16(a). Furthermore, the Board finds that the evidence of record does not reflect that the Veteran is unemployable on account of his service-connected orthopedic disabilities for which he is claiming entitlement to increased ratings herein. His VA and private treatment records show that he has complained of back, neck, hip and knee pain, but they do not show that those disabilities or such pain causes functional limitation that renders the Veteran unable to secure or follow a substantially gainful occupation. According to his claims for TDIU, he has previously worked as a cook. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received July 18, 2012. The Veteran has also reported working at an auto supply vender as a parts clerk and later as an assistant manager, and a rehabilitation specialist opined that the Veteran has no transferrable skills to sedentary employment and could not engage in gainful employment at any exertional level due to the limitations posed by his service-connected medical conditions. See Vocational Evaluation received in August 2013. The Veteran’s SSA records show that he was determined to have been disabled, for purposes of social security disability insurance, since September 12, 2009, and that his severe impairments include anxiety disorder, PTSD, mood disorder, and diverticular disease. The Veteran’s SSA records do not indicate that he is unemployable based solely on his back, neck, right hip and bilateral knee conditions. See SSA records received in August 2020. Nor does any of the other evidence in the claims file. Furthermore, the evidence does not reflect that the Veteran’s back, neck, right hip and knee disabilities have any greater functional impact than is reflected in and compensated by way of his current evaluations therefor. None of the evidence in the claims file indicates that the Veteran is unable to secure or follow substantially gainful employment solely due to these orthopedic disabilities. Considering the foregoing, the Board finds that the Veteran is not entitled to TDIU. Additionally, as noted above, in accordance with the May 2019 Board remand, arrangements were made to schedule the Veteran for an additional VA examinations concerning his service-connected disabilities, but significantly, the Veteran declined the examinations. See Compensation and Pension Inquiry dated June 14, 2019; Exam Details dated June 26, 2019. The June 2020 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed without good cause to report for the scheduled VA examinations, and also provided notice of the provisions of 38 C.F.R. § 3.655(b). Although the claims file does not include a copy of the letter notifying the Veteran of the date of his scheduled VA examinations, this fact alone does not constitute good cause for failure to report. See Kyhn, supra. Critically, the Veteran has not disputed the report in the SSOC that he failed without good cause to report for the needed VA examinations, or asserted that he did not receive notice of the examinations. To the contrary, the record clearly reflects that he was contacted about scheduling the examinations and declined. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran’s TDIU claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for asthma (claimed as lungs/basil nodes) is remanded. The Veteran’s private treatment records reflect that had asthma as a child. For example, an October 2010 private treatment record in the Veteran’s SSA records shows that he reported having asthma as a child to his private physician. A March 2012 note in the Veteran’s private treatment records indicates that the Veteran reported having dyspnea over the past year and had allergic childhood asthma triggered primarily by cats. However, a September 2011 private treatment record shows that the Veteran had a recent diagnosis of asthma. VA has not yet obtained an opinion on whether the Veteran’s asthma pre-existed and was aggravated during his active service. The Board finds that such an opinion should be obtained. After the Board’s May 2019 remand, an attempt was made to schedule the Veteran for another VA examination, but the record reflects that the Veteran declined the examination. See Compensation and Pension Inquiry dated June 14, 2019. However, the Board finds that an expert medical opinion based on review of the record can and should still be obtained. Additionally, in its May 2019 remand, the Board found the November 2018 VA examination report inadequate as to the Veteran’s claimed asthma/respiratory disability because the examiner, in essence, failed to explain how or why he believes a diagnosis of constrictive bronchiolitis is not warranted, considering the fact that the Veteran’s private physician has clearly indicated on numerous occasions that he feels very strongly in that diagnosis but is reluctant to confirm the diagnosis by way of a surgical biopsy, because of the potential risks associated with that procedure as a result of the Veteran’s other maladies. The Board also found that the report was insufficient because the examiner opined that the Veteran’s asthma was less likely as not related to military service because his service treatment records did not contain objective medical evidence of the condition’s presence in service, but the examiner did not discuss how or why the Veteran’s dust and burn pit exposure did not contribute to his current asthma, and failed to acknowledge the Veteran’s competent lay reports. Thus, on remand, an opinion based on review of the record should also be obtained on whether the Veteran’s asthma is directly related to his service and on the nature and etiology of any other respiratory disability, including constrictive bronchiolitis, if a diagnosis is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, based on review of the record, regarding the Veteran’s claimed respiratory disability(ies), including any asthma or constrictive bronchiolitis. The examiner must review the claims file, and discuss relevant evidence therein as necessary and appropriate, including: the Veteran’s private physician’s notes which indicate that the physician strongly suspected that the Veteran had/has a diagnosis of constrictive bronchiolitis but is reluctant to confirm the diagnosis by way of a surgical biopsy, because of the potential risks associated with that procedure as a result of the Veteran’s other maladies; and the Veteran’s lay reports of inhaling dust and being exposed to burn pits while serving on active duty in Southwest Asia. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a.) Is it at least as likely as not that the Veteran has constrictive bronchiolitis? (b.) If the Veteran does have constrictive bronchiolitis, is it at least as likely as not related to service, including any dust inhalation or exposure to burn pits? (c.) Did asthma clearly and unmistakably (undebatable) preexist the Veteran’s service? (d.) If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? (e.) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including any dust inhalation or exposure to burn pits. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? (Continued on the next page)   The examiner must consider the Veteran’s lay statements regarding in-service occurrence of the injury/illness and should discuss those statements as relevant and necessary. The examiner’s opinion and the rationale therefor should be based on all relevant evidence of record, and, if at all possible, neither should be based solely on the absence or presence of contemporaneous medical records (i.e., the absence or presence of service treatment records evidencing the presence of asthma, constrictive bronchiolitis, or any other respiratory disability during the Veteran’s active service). D. C. JOHNSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED