Citation Nr: 21009921 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-31 227A DATE: February 23, 2021 ORDER The appeal of entitlement to service connection for sleep apnea, secondary to chronic bladder infection is dismissed. The appeal of entitlement to service connection for hypertension is dismissed. The appeal of entitlement to service connection for hyperthyroidism is dismissed. The appeal of entitlement to an initial compensable rating for lesion, right forearm (elbow limitation of flexion), prior to March 3, 2020, is dismissed. The appeal of entitlement to a rating in excess of 10 percent for lesion, right forearm (elbow limitation of flexion), for the period beginning March 3, 2020 is dismissed. The appeal of entitlement to an initial compensable rating for lesion, right forearm (elbow limitation of supination), for the period beginning March 3, 2020, is dismissed. An initial rating in excess of 10 percent for right knee patellofemoral syndrome is denied. An initial compensable rating for residuals, right wrist sprain, prior to April 11, 2015, is denied. A rating in excess of 10 percent for residuals, right wrist sprain, for the period beginning April 11, 2015, is denied. An initial compensable rating for migraine headaches is denied. An initial compensable rating for bilateral shin splints is denied. REMANDED Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. In June 2019, the Board remanded the issues of entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome, entitlement to an initial compensable rating for bilateral shin splints, entitlement to an initial compensable rating for right forearm condition (elbow limitation of flexion), entitlement to an initial compensable rating for right wrist sprain, entitlement to an initial compensable rating for migraine headaches, entitlement to service connection for sinusitis, entitlement to service connection for sleep apnea secondary to chronic bladder infection, entitlement to service connection for hypertension, and entitlement to service connection for hyperthyroidism. 2. In an August 2020 rating decision, the RO granted a 10 percent rating for residuals, right wrist sprain, effective April 11, 2015; a 10 percent rating for lesion, right forearm (elbow limitation of flexion), effective March 3, 2020, and service connection for lesion, right forearm (elbow limited supination), with a 0 percent (noncompensable) evaluation, effective March 3, 2020. 3. In an August 2020 supplemental statement of the case (SSOC), the RO denied an initial rating in excess of 10 percent for right knee patellofemoral syndrome, entitlement to an initial compensable rating for bilateral shin splints, entitlement to an initial compensable rating for lesion right forearm (elbow limitation of flexion) prior to March 3, 2020, entitlement to a rating in excess of 10 percent for lesion, right forearm (elbow limitation of flexion) for the period beginning March 3, 2020, entitlement to an initial compensable rating for lesion, right forearm (elbow limited supination), entitlement to an initial compensable rating for right wrist sprain, entitlement to an initial compensable rating for migraine headaches, entitlement to service connection for sinusitis, entitlement to service connection for sleep apnea secondary to chronic bladder infection, entitlement to service connection for hypertension, entitlement to service connection for hyperthyroidism, and entitlement to service connection for sinusitis. 4. The Veteran has indicated that she is only in disagreement with the denial of an initial rating in excess of 10 percent for right knee patellofemoral syndrome, an initial compensable rating for migraine headaches an initial compensable rating for bilateral shin splints, service connection for sinusitis, and the evaluation of residuals, right wrist sprain, evaluated as noncompensable prior to April 11, 2015, and as 10 percent disabling thereafter. 5. Throughout the appeal, the Veteran’s right knee disability was manifested by limitation of flexion, which was not limited to 30 degrees or less; and limitation of extension, which was not limited to 15 degrees or more, even with consideration of pain, and other functional impairment; there was no evidence of semilunar cartilage impairment, recurrent subluxation, tibia or fibula impairment, or ankylosis. 6. Prior to April 11, 2015, the Veteran’s right wrist disability was not manifested by limitation of dorsiflexion to less than 15 degrees or limitation of palmar flexion in line with forearm. 7. For the period beginning April 11, 2015, the Veteran’s right wrist disability does not manifest symptoms of ankylosis. 8. Throughout the appeal, the Veteran has not experienced prostrating attacks of migraine headaches averaging one in 2 months. 9. Throughout the appeal, the Veteran has had bilateral shin splints; he has not had nonunion or malunion of the tibia or fibula with slight knee or ankle disability. CONCLUSIONS OF LAW 1. The appeal of entitlement to service connection for sleep apnea, secondary to chronic bladder infection is dismissed. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.202 (a). 2. The appeal of entitlement to service connection for hypertension is dismissed. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.202 (a). 3. The appeal of entitlement to service connection for hyperthyroidism is dismissed. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.202 (a). 4. The appeal of entitlement to an initial compensable rating for lesion, right forearm (elbow limitation of flexion), prior to March 3, 2020, is dismissed. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.202 (a). 5. The appeal of entitlement to a rating in excess of 10 percent for lesion, right forearm (elbow limitation of flexion), for the period beginning March 3, 2020 is dismissed. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.202 (a). 6. The appeal of entitlement to an initial compensable rating for lesion, right forearm (elbow limitation of supination) is dismissed. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.202 (a). 7. The criteria for an initial rating in excess of 10 percent for right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5263 (2019). 8. Prior to April 11, 2015, the criteria for an initial compensable rating for residuals, right wrist sprain have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2019). 9. For the period beginning April 11, 2015, the criteria for a rating in excess of 10 percent for residuals, right wrist sprain have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2019). 10. The criteria for an initial compensable rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2019). 11. The criteria for an initial compensable rating for bilateral shin splints have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.3, 4.7, 4.71a, Diagnostic Code 5262 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to March 1996. In March 2019, the Veteran testified at a Washington, D.C. Central Office hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. In June 2019, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Dismissals of Issues on Appeal The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.202 (a). As noted above, in June 2019, the Board remanded the issues of entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome, entitlement to an initial compensable rating for bilateral shin splints, entitlement to an initial compensable rating for right forearm condition (elbow limitation of flexion), entitlement to an initial compensable rating for right wrist sprain, entitlement to an initial compensable rating for migraine headaches, entitlement to service connection for sinusitis, entitlement to service connection for sleep apnea secondary to chronic bladder infection, entitlement to service connection for hypertension, and entitlement to service connection for hyperthyroidism. The Veteran has not disagreed with the RO’s determination as to these issues. Rather, she submitted a statement in October 2020, indicating that she was only disagreeing with the issues of an initial rating in excess of 10 percent for right knee patellofemoral syndrome, an initial compensable rating for migraine headaches, an initial compensable rating for bilateral shin splints, service connection for sinusitis, and the evaluation of residuals, right wrist sprain, evaluated as noncompensable prior to April 11, 2015, and as 10 percent disabling thereafter. The Board notes that the Veteran’s representative submitted a November 2020 Informal Hearing Presentation (IHP) in December 2020, listing all 12 issues that were adjudicated in the August 2020 SSOC. However, the IHP does not include any specific argument with regard to any of the listed issues. As such, the Board finds the Veteran’s October 2020 statement is more indicative of the Veteran’s actual intent with regard to the issues she wishes to continue her appeal for. No allegation of error of fact or law remains for appellate consideration with respect to these issues, and there is no longer a justiciable issue or controversy on appeal. Accordingly, the Veteran's appeals as to entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome, entitlement to an initial compensable rating for bilateral shin splints, entitlement to an initial compensable rating for right forearm condition (elbow limitation of flexion), entitlement to an initial compensable rating for right wrist sprain, entitlement to an initial compensable rating for migraine headaches, entitlement to service connection for sinusitis, entitlement to service connection for sleep apnea secondary to chronic bladder infection, entitlement to service connection for hypertension, and entitlement to service connection for hyperthyroidism have been rendered moot, and there is no case or controversy to be resolved. For reasons outlined above, the appeals are dismissed for lack of jurisdiction. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.202 (a). The Board notes that nothing in this decision should be construed as preventing the Veteran from filing a Decision Review Request or a Supplementary Claim. The Board is dismissing the instant appeals because the Veteran has not yet indicated that he disagrees with the AOJ's most recent adjudication of those appeals. General Legal Criteria for Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be considered from the point of view of the veteran working or seeking work. 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. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § § 4.21 (2019). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In accordance with 38 C.F.R. § §§ 4.1, 4.2 (2019) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. 1. An initial rating in excess of 10 percent for right knee patellofemoral syndrome In a May 2012 rating decision, the RO granted service connection for patellofemoral syndrome right knee (claimed as osteoarthritis, right knee). A 10 percent evaluation was assigned, effective July 16, 2009. The Veteran has appealed this initial rating. Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees, or a maximum 30 percent evaluation if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, a 30 percent evaluation if extension is limited to 20 degrees, a 40 percent evaluation if extension is limited to 30 degrees, or a maximum 50 percent evaluation if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Ankylosis of a knee warrants a 30 percent evaluation if it is at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a maximum 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint will be rated a maximum 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Removal of the semilunar cartilage, if symptomatic, will be rated a maximum 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2019). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (Aug. 14, 1998). The VA General Counsel also held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (Sept. 17, 2004). Traumatic arthritis (Diagnostic Code 5010) is rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint 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. 38 C.F.R. § § 4.71a, Diagnostic Code 5003. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § § 4.59 (2019). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § § 4.14 (2019). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Analysis On VA examination in November 2010, the Veteran complained of right knee pain, swelling and popping, as well as locking, giving way and crepitus. There were no episodes of dislocations or subluxations. There were no signs of inflammation like heat, redness or drainage. She was taking Aleve on and off for pain with some relief and no side effects. She denied any flare-us or incapacitating episodes in the previous 12 months. She was using crutches and sometimes a cane for ambulation, as well as a right knee brace to stabilize the knee. She was able to perform her usual occupation and activities of daily living. She had functional limitations on walking and standing—she was able to walk 1 block, stand for 10 to 15 minutes and drive for about 2 hours. Range of motion was 115 degrees of flexion and extension to 0 degrees. There was pain during range of motion, but no effusion and no edema. There were no signs of instability, but she walked with an antalgic gait. There was no ankylosis. The examiner noted that there was additional functional loss due to pain, weakness and lack of endurance following repetitive use testing, mostly due to pain, resulting in a loss of 5 degrees of range of motion. On VA examination in May 2012, the Veteran reported flare-ups of right knee pain that prevented her from walking. Range of motion was 90 degrees flexion with pain at 100 degrees, and normal extension with no evidence of pain. Range of motion was not changed after repetitive use testing. However, there was functional impairment noted in the form of less movement than normal, pain on movement, and interference with sitting, standing and weight-bearing. There was also pain on palpation of the right knee, but muscle strength testing was normal. There was no evidence of instability, and no evidence of patellar subluxation/dislocation. The Veteran also reported using a cane on a constant basis. On VA examination in April 2015, the Veteran complained of increasing intermittent right knee pain that was sharp, aching and throbbing, and worse with walking. Pain was relieved with Naproxen, as needed. She reported flare-ups of right knee pain when sitting down and elevating her right leg. She also reported functional impairment when sitting down. Range of motion was 90 degrees of flexion and extension from 90 to 0 degrees. Pain was noted on examination that caused functional loss, and there was evidence of pain with weight bearing. There was also evidence of diffuse tenderness of the right knee. There was no additional range of motion loss with repetitive use testing. The examiner concluded that pain significantly limited functional ability with repeated use over a period of time and with flare-ups, but he could not describe the loss in terms of range of motion. The examiner also noted that disturbance of locomotion contributed to the Veteran’s disability. Muscle strength testing was normal, and there was no evidence of recurrent subluxation or lateral instability. The Veteran also reported that she used a cane regularly and a walker occasionally. On VA examination in October 2019, the Veteran reported increased intermittent right knee pain that was at a level of 8/10. She also reported flare-ups of right knee pain that reached a level of 10/10 in pain. She reported functional impairment that resulted in difficulty with prolonged walking, standing, squatting, lifting, and overall exertion. Range of motion was flexion to 100 degrees, and extension to 10 degrees. Pain was noted on examination, which resulted in functional loss, and there was moderate tenderness to palpation of the patella due to arthritis. There was evidence of pain with weight bearing. There was no additional loss of function or range of motion following repetitive use testing, but the examiner concluded that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time and with flare-ups. However, this did not result in additional loss of range of motion. Muscle strength was slightly reduced to 4/5 on the right, and the Veteran reported occasional use of a wheelchair, knee brace, crutches, a cane, and a walker. On VA examination in March 2020, the Veteran reported increased right knee pain and limited range of motion. She also complained of swelling, stiffness, locking, popping and clicking in the right knee. She was treating her knee pain with steroid injections every 6 months, Ibuprofen 400 mg as needed, Methocarbamol 750 mg, and Meloxicam 15 mg daily. She denied flare-ups of right knee pain. However, she reported functional impairment in the form of difficulty walking, standing and sitting for a prolonged period of time. Range of motion was flexion to 45 degrees and extension from 45 to 0 degrees. There was no additional loss of range of motion following repetitive use testing. The examiner concluded that pain significantly limited functional ability with repeated use over a period of time and with flare-ups, but this did not result in additional loss of range of motion. Muscle strength testing was reduced to 3/5 during flexion. There was no history of recurrent subluxation or lateral instability of the right knee. The Veteran reported occasional use of a wheelchair, regular use of a knee brace, constant use of a cane, and occasional use of a walker. The Veteran has reported chronic and constant right knee pain, as well as swelling, stiffness, weakness, giving way, locking, popping, clicking, crepitus, and limited range of motion, which she treats with pain medication and recently, steroid injections every six months. She also reported flare-ups of knee pain in 2012, 2015 and 2019, and functional impairment throughout the appeal. However, on objective testing, she has demonstrated flexion to no less than 45 degrees and extension has not been limited to more than 10 degrees, even with consideration of pain and after repetitive use testing. Thus, a review of the record shows no evidence of limitation of right knee motion that warrants a rating in excess of 10 percent under Diagnostic Code 5260 and/or Diagnostic Code 5261 during the appeal. See November 2010, May 2012, April 2015, October 2019 and March 2020 VA examination reports. Moreover, due to the actual range of motion demonstrated at different times throughout the appeal, separate evaluations for limited flexion and extension of the right knee under Diagnostic Code 5260 and/or Diagnostic Code 5261 are not warranted here, as is permitted by VAOPGCPREC 9-2004. In this regard, the Board notes that although the Veteran demonstrated extension limited to 10 degrees on VA examination in October 2019, she did not demonstrate compensable limitation of flexion at that time. The Board has also considered whether any alternative Diagnostic Codes would allow for a rating in excess of 10 percent for the service-connected right knee disability during the appeal. However, ankylosis has not been shown or alleged (Diagnostic Code 5256), there was no finding of dislocated semilunar cartilage, and no episodes of locking or findings of effusions of the right knee (Diagnostic Code 5258). There is evidence of impairment of the tibia and fibula in the form of shin splints, which the Veteran is already being compensated for (Diagnostic Code 5262), and as discussed further below, the evidence does not show that a higher rating for shin splints is warranted. There was also no evidence of instability in the right knee (Diagnostic Code 5257). As such, a rating in excess of 10 percent is not warranted for the right knee disability at any time during the appeal. The Board also finds that a rating in excess of 10 percent is not warranted for the right knee at any time during the appeal under DeLuca. In this regard, the Veteran reported flare-ups of right knee pain on examination in 2012, 2015 and 2019, but denied flare-ups on examination in November 2010 and March 2020. She also reported functional impairment in the form of pain, stiffness, swelling and limitation of motion, as well as less movement than normal, pain on movement, difficulty ambulating, difficulty with prolonged walking, standing, sitting, squatting, lifting, weight bearing and overall exertion. She treats her right knee pain with two different pain medications, as needed, and recently, with steroid injections every six months. On examination in 2012, 2015, 2019 and 2020, there was no additional loss of motion with repetition, but pain significantly limited functional ability with flare-ups and over a period of time in 2015 and 2020, and pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare-ups and over a period of time in 2019. However, there is no evidence that this functional impairment resulted in additional loss of range of motion. On examination in 2010, pain, weakness and lack of endurance caused additional functional loss after repetitive use testing, but this only resulted in an additional loss of 5 degrees of range of motion, which would have reduced the Veteran’s flexion to 110 degrees. Although there was evidence of functional loss on examination in 2010, 2012, 2015, 2019 and 2020, and the Veteran reported pain during range of motion during all these examinations, the Veteran continued to demonstrate no less than 90 degrees of flexion for the majority of the appeal, way beyond the level required for a rating in excess of 10 percent under Diagnostic Code 5260. Furthermore, she only recently demonstrated reduced flexion to 45 degrees in 2020, which is still beyond the level required for a rating in excess of 10 percent under Diagnostic Code 5260. Moreover, she has demonstrated normal extension for the majority of the appeal, and only recently demonstrated limitation of extension to 10 degrees in 2020, which is still beyond the level required for a rating in excess of 10 percent under Diagnostic Code 5261. As such, the Board finds that it is evident that the Veteran's functional impairment, has already been considered with the assignment of the current 10 percent ratings under Diagnostic Code 5260. The Board acknowledges that neither the April 2015, October 2019 nor March 2020 examiner indicated where the Veteran experienced pain during range of motion testing. Nevertheless, the Board would have to assume that as range of motion was significantly above 30 degrees of flexion and extension was normal, even with consideration of pain and other functional impairment, range of motion of the right knee would not have been reduced enough to warrant a rating in excess of 10 percent under any of the applicable diagnostic codes. Therefore, the Board finds that a rating in excess of 10 percent, based on functional impairment, is also not warranted for the right knee disability. 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board has also considered other medical evidence of record for this period, including VA and private treatment records. None of these records contains evidence showing that the Veteran's right knee disability is manifested by symptoms that meet the criteria for a rating in excess of 10 percent at any time during the appeal. Consideration under 38 C.F.R. §§ 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). 2. An initial compensable rating for residuals, right wrist sprain, prior to April 11, 2015 In a May 2012 rating decision, the RO granted service connection for residuals, right wrist sprain. A 0 percent (noncompensable) rating was assigned, effective July 16, 2009. The Veteran appealed this initial rating. The Veteran's service-connected right wrist disability is rated under Diagnostic Code 5215. The assignment of Diagnostic Code 5215 shows that the Veteran's service-connected right wrist disability is rated based on limitation of motion of the wrist. A distinction is made between major (dominant) and minor musculoskeletal groups for rating upper extremities. 38 C.F.R. § 4.69. The VA examinations of record reveal that the Veteran is right-hand dominant. Under rating criteria pertaining to limitation of motion of the wrist, Diagnostic Code 5215 provides that a maximum 10 percent rating is assigned for limitation of dorsiflexion of the major or minor wrist to less than 15 degrees, or limitation of palmar flexion in line with forearm. 38 C.F.R. § 4.71a (2019). (The standardized range of motion for the wrist is plantar flexion to 80 degrees, dorsiflexion to 70 degrees, ulnar deviation to 40 degrees, and radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I (2019)). The only other diagnostic code that evaluates a wrist disability is Diagnostic Code 5214; which evaluates impairment from ankylosis of the wrist. Under this Diagnostic Code, a 20 percent rating is warranted when there is favorable ankylosis of the minor wrist in 20 degrees to 30 degrees dorsiflexion. 38 C.F.R. § 4.71a, Diagnostic Code 5214. On VA examination in November 2010, the Veteran complained of pain and swelling of the right wrist, but no locking or instability. She denied episodes of dislocations or subluxations. There were no signs of inflammation, and no history of flare-ups or incapacitating episodes. She took Aleve on and off for pain and used a brace on and off. There was no history of hospitalization or surgery to the right wrist or forearm, and no constitutional symptoms of inflammatory arthritis. She was able to perform activities of daily living, and she was able to drive. There was no history of neoplasms of the right wrist. On physical examination, dorsiflexion was to 70 degrees, palmar flexion was to 60 degrees, radial deviation was to 20 degrees, and ulnar deviation was to 40 degrees. There was no pain during active range of motion, and no edema or effusion. There was tenderness on the dorsum of the wrist, but no palpable masses or cysts. There was no ankylosis of the right wrist. There was no additional functional loss due to pain, weakness, or lack of endurance after repetitive use testing. She was diagnosed with a sprain of the right wrist/forearm. On VA examination in May 2012, the Veteran reported pain in the right wrist with activities such as typing or lifting objects. She also reported flare-ups of right wrist pain. On physical examination, palmar flexion was to 80 degrees or greater with no evidence of pain on motion; dorsiflexion was to 70 degrees or greater with no evidence of pain on motion. There was no additional range of motion loss following repetitive use testing. There was no ankylosis of the wrist. As there is no evidence prior to April 11, 2015 of limitation of dorsiflexion of the right wrist to less than 15 degrees, or limitation of palmar flexion in line with forearm, a compensable rating is not warranted under Diagnostic Code 5215 prior to April 11, 2015. The Board also notes that as there was no objective evidence of pain on range of motion of the right wrist during VA examination in 2010 or 2012, a compensable rating is not warranted under 38 C.F.R. § 4.59. The Board also finds that as here was no additional functional loss or range of motion loss due to pain, weakness, or lack of endurance after repetitive use testing on examination in 2010 and 2012, and the Veteran’s range of motion was way beyond the level required for a 10 percent rating under Diagnostic Code 5215, a compensable rating based on functional impairment is also not warranted under DeLuca. The Board has also considered other medical evidence of record for this period, including VA and private treatment records. None of these records contains evidence showing that the Veteran's right wrist disability is manifested by symptoms that meet the criteria for a compensable rating prior to April 11, 2015. 3. A rating in excess of 10 percent for residuals, right wrist sprain, for the period beginning April 11, 2015 In an August 2020 rating decision, the RO granted an increased rating of 10 percent for the service-connected right wrist sprain, effective April 11, 2015. The Veteran contends that a rating in excess of 10 percent is warranted for the right wrist disability for this period on appeal. As the Veteran is currently receiving the maximum rating available under Diagnostic Code 5215 for this period, the Board will consider whether an increased rating is available under other diagnostic codes used to rate a wrist disability. On VA examination in April 2015, the Veteran complained of increasing intermittent right wrist pain that was aching and sharp and worse with repetitive use. Pain was decreased with use of Naproxen, as needed. The Veteran reported flare-ups of right wrist pain and functional impairment. On physical examination, palmar flexion was to 45 degrees, dorsiflexion was to 60 degrees, ulnar deviation was to 30 degrees, and radial deviation was to 20 degrees. Pain was noted on examination, which caused functional loss. There was no evidence of pain with weight bearing, but there was diffuse nonspecific wrist tenderness noted. There was no additional loss of function or range of motion following repetitive use testing. The examiner noted that pain significantly limited functional ability with repeated use over a period of time and with flare-ups. Muscle strength was 5/5 and there was no evidence of ankylosis. On VA examination in March 2020, the Veteran complained of continued right wrist pain with no improvement, and limited range of motion and numbness in the right wrist. She was taking Ibuprofen 400 mg, as needed, Methocarbamol 750 mg, and Meloxicam 15 mg daily. She denied flare-ups of right wrist pain, but reported functional impairment in the form of difficulty writing and typing. On physical examination, palmar flexion was to 50 degrees, dorsiflexion was to 50 degrees, ulnar deviation was to 30 degrees, and radial deviation was to 15 degrees. Pain was noted on examination, which caused functional loss. There was no evidence of pain with weight bearing and no evidence of tenderness. There was no additional loss of function or range of motion following repetitive use testing. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups. Muscle strength was slightly reduced to 4/5 and there was no evidence of ankylosis. Having reviewed the complete record, the Board finds that the evidence does not support the criteria for a disability rating in excess of 10 percent at any time during the appeal period for the right wrist disability under Diagnostic Code 5215. The Veteran's current 10 percent disability rating is based on pain with some limitation of motion and functional loss. The Veteran is already in receipt of the highest schedular rating available for limitation of motion of the right wrist and, at no time during the period on appeal did the Veteran's right wrist manifest ankylosis. In making this determination, the Board considered whether there is any additional functional loss that would warrant a rating in excess of 10 percent. See DeLuca, 8 Vet. App. at 202. Concerning Diagnostic Code 5215, the maximum rating assignable is 10 percent and VA regulations concerning functional loss are not applicable where a disability is rated at the maximum level provided by the diagnostic code under which it is rated. See VAOPGCPREC 36-97 (consideration must be given to the extent of disability under 38 C.F.R. §§ 4.40 and 4.45 "when a veteran has received less than the maximum evaluation"). Indeed, the 10 percent rating assigned contemplates the Veteran's complaints of pain and functional loss, as range of motion testing did not meet the minimum criteria for a compensable rating under Diagnostic Code 5215 at any time during the appeal. Concerning Diagnostic Code 5214, even considering the clinical findings of functional impairment and loss, the evidence does not more nearly approximate a 20 percent rating for favorable ankylosis in 20 to 30 degrees of dorsiflexion under Diagnostic Code 5214. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). The clinical findings, while reflecting pain, limitation of motion, lack of strength, and numbness, does not show any evidence of ankylosis. Accordingly, a rating in excess of 10 percent is not warranted at any time during the appeal period. The Board has also considered other medical evidence of record for this period, including VA treatment records and private medical records. None of these records contains evidence showing that the Veteran's right wrist disability is manifested by symptoms that meet the criteria for a rating in excess of 10 percent at any time during the appeal period. Consideration under 38 C.F.R. §§ 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). 4. An initial compensable rating for migraine headaches In a January 2012 rating decision, the RO granted service connection for migraines. A 0 percent (noncompensable) rating was assigned, effective July 16, 2009. The Veteran has appealed this initial rating. The Veteran's headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraines. Under Diagnostic Code 8100, a rating of 10 percent is warranted for migraines with prostrating attacks averaging one in 2 months over the last several months; a rating of 30 percent is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating, the maximum schedular rating available, is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2019). On VA examination in November 2010, the Veteran reported a 20-year history of headaches, occurring weekly, lasting a few hours. She denied taking any medication for her headaches. She complained of nausea with her headaches, but denied vomiting. She also reported phonophobia and photophobia, but no neurological symptoms. She was diagnosed with migraine headaches of moderate degree. On VA examination in March 2020, the Veteran reported headaches, with nausea, sensitivity to sound and light, changes in vision, sensory changes, and neck pain and stiffness. She was taking Magnesium Oxide daily and Eletriptan as needed. She reported that her headaches lasted more than 2 days. The report indicated that she did not have characteristic prostrating attacks of migraine headaches pain. Private treatment records show that in March 2020, the Veteran reported 2-3 headaches per month that lasted for 2-3 days. During headaches, she would have light sensitivity and nausea, but no vomiting, and would have to lay down in a dark room. In June 2020, she reported that the severity of her headache pain had improved with the use of a certain medication. See treatment records from Union Neurology Associates. The evidence shows the Veteran has migraine headaches several times per month. However, it does not show that she has migraine headaches with prostrating attacks averaging one in 2 months. The private treatment records show that in March 2020, she reported headaches so severe that she would have to lay down in a dark room 2-3 times per month, but just 3 months later, in June 2020, she was reporting improvement in her symptoms with a different medication, that she continues to take now, and there is no evidence of what her symptoms were in April and May 2020. The Board finds that although the Veteran may have experienced headaches severe enough to require her to lay down and rest in March 2020, there is no evidence that she has experienced prostrating attacks of migraine headaches averaging one in 2 months during the appeal. As such, a compensable rating is not warranted at any time during the appeal. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher schedular rating. 38 U.S.C. § 5107 (b); 38 C.F.R. § §§ 4.7, 4.21. Consideration under 38 C.F.R. § § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). 5. An initial compensable rating for bilateral shin splints In a January 2012 rating decision, the RO granted service connection for bilateral shin splints. A 0 percent (noncompensable) rating was assigned, effective July 16, 2009. The Veteran has appealed this initial rating. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2019). On VA examination in November 2010, the Veteran complained of pain in both lower legs when walking, in the area of the mid-tibia bilaterally. She was diagnosed with bilateral shin splints. There was no deformity or angulation of the lower legs, no shortening, and no malunion or nonunion. On VA examination in May 2012, it was noted that the Veteran did not have shin splints or any other tibial and/or fibular impairment. On VA examination in April 2015, it was noted that the Veteran had bilateral shin splints (medial tibial stress syndrome), but that the condition did not affect range of motion of the knee or ankle, and symptoms had resolved. There was no indication of malunion or nonunion of the tibia or fibula. On VA examination in October 2019 and March 2020, she was noted to have bilateral shin splints that affected range of motion of the knee, but did not affect range of motion of the ankle. There was no indication of malunion or nonunion of the tibia or fibula. Although there is evidence throughout the appeal, except on examination in May 2012, of bilateral shin splints with a knee disability; there is no evidence at any time during the appeal of malunion of the tibia and fibula. In fact, it was specifically noted on examination in 2010 that there was no malunion or nonunion of the tibia or fibula. As such, a compensable rating is not warranted for bilateral shin splints under Diagnostic Code 5262 at any time during the appeal. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher schedular rating. 38 U.S.C. § 5107 (b); 38 C.F.R. § §§ 4.7, 4.21. Consideration under 38 C.F.R. § § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). REASONS FOR REMAND 1. Entitlement to service connection for sinusitis is remanded. Service connected was denied for sinusitis, as there was no confirmed diagnosis of chronic sinusitis and no evidence showing that the condition occurred in or was caused by service. As noted in the June 2019 remand, the Veteran was afforded a VA respiratory examination in November 2010, which the Board finds inadequate, as the examiner failed to address the Veteran’s service treatment record reflecting complaints of “sinus congestion” in June 1990, with an assessment of sinusitis in December 1990. In accordance with the June 2019 remand directives, the Veteran was afforded another VA examination in March 2020. The examiner opined that, as a CT of Maxillofacial in December 2018 was normal, there is no evidence of chronic sinusitis and therefore, a nexus has not been established and the claimed sinusitis was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The Board finds the March 2020 opinion inadequate because as was the case with the November 2010 examination, the March 2020 examiner failed to address the Veteran’s service treatment records reflecting complaints of “sinus congestion” in June 1990, with an assessment of sinusitis in December 1990. As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of any currently demonstrated respiratory disability is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims file/e-folder. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the claimed right eye disability. The Veteran’s claims file, to include a copy of the remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. Does the Veteran have a current respiratory disability, including sinusitis? If so, please identify. For each diagnosis, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s current diagnosed condition is etiologically related to her active duty service? The provided examination opinion must reflect consideration of both the medical and lay evidence of record, setting forth a complete rationale for all findings and conclusions. The examiner should specifically consider and discuss the Veteran’s service treatment records reflecting complaints of “sinus congestion” in June 1990, with an assessment of sinusitis in December 1990. 3. After completing the above action and any other development deemed necessary, the claim must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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