Citation Nr: 21010624 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-27 386A DATE: February 25, 2021 ORDER Entitlement to service connection for dizziness and lightheadedness, to include as due to an undiagnosed illness is granted. Entitlement to service connection for persistent weakness and fatigue, to include as due to an undiagnosed illness is granted. Entitlement to a rating in excess of 20 percent for partial amputation of right thumb with scar is denied. REMANDED Entitlement to service connection for sleep pattern change and night sweats, to include as due to an undiagnosed illness is remanded. Entitlement to a 10 percent rating, but no higher, for left hand dermatitis with chronic paronychia is remanded. Entitlement to a rating in excess of 10 percent for a right knee injury is remanded. FINDINGS OF FACT 1. The Veteran had active service in Southwest Asia during Operation Iraqi Freedom. 2. The Veteran’s dizziness and lightheadedness are due to an undiagnosed illness. 3. The Veteran’s persistent weakness and fatigue are due to an undiagnosed illness. 4. The Veteran has one painful and unstable scar on his right thumb. CONCLUSIONS OF LAW 1. The criteria for service connection for dizziness and lightheadedness due to an undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.317(a)(1) (2020). 2. The criteria for service connection for persistent weakness and fatigue as due to an undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.317(a)(1) (2020). 3. The criteria for a rating in excess of 20 percent for partial amputation of right thumb with scar have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to August 1982, from June 1983 to September 1992 and from February 2004 to April 2005. This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An August 2018 Board decision granted service connection for a lumbar spine disability and tinnitus and remanded the other issues on appeal for further development. A July 2020 rating decision granted service connection for GERD and a right hip disability. As this constituted a complete grant of the benefit sought on appeal for those issues, they are not before the Board. The Board notes that the Veteran has a separate pending appeal in the modernized system regarding the issues of increased ratings for TBI and sinusitis and service connection for joint/muscle pain. As those issues are in the AMA system, they are not part of the current Legacy system appeal and are not before the Board. Service Connection Service connection may be established for a Persian Gulf Veteran for a qualifying chronic disability which manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). A “Persian Gulf Veteran” is a veteran with active service in the Southwest Asia theater of operations during the Persian Gulf War. A “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). 1. Entitlement to service connection for dizziness and lightheadedness, to include as due to an undiagnosed illness The Veteran contends that his dizziness and lightheadedness are due to an undiagnosed illness related to Persian Gulf service. The Board concludes that the Veteran is a Persian Gulf veteran with an undiagnosed illness involving symptoms of dizziness and lightheadedness that manifested to a degree of 10 percent or more. Service connection is therefore warranted. 38 C.F.R. § 3.317(a)(1). The Veteran’s DD-214 indicates that he had active service in Southwest Asia during Operation Iraqi Freedom and he is therefore a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). An October 2009 VA examination noted the Veteran’s reports of dizziness and found symptoms of episodic dizziness of unclear etiology. The examiner noted that it appeared orthostatic. A June 2020 VA ear examination noted the Veteran’s reports of dizziness and lightheadedness after his return from Iraq. The examiner did not diagnose an ear or peripheral vestibular condition but found that the Veteran’s symptoms of dizziness and lightheadedness were due to an undiagnosed illness. A June 2020 VA Central nervous system examination noted lightheadedness, including instability and feeling wobbly when walking, but found that there was no current central nervous system diagnosis. In a June 2020 VA opinion, the examiner further stated that the symptoms were nonspecific, and no particular disease could be attributed to them. The examiner specifically noted that the symptom of lightheadedness had “in this veteran, an unexplained diagnosis.” The examiner also stated that there was no unifying diagnosis to explain the Veteran’s various symptoms. An August 2020 VA opinion from the same provider stated that the Veteran’s dizziness and lightheadedness were as likely as not a manifestation of an undiagnosed illness. The provider stated that symptoms of lightheadedness and dizziness were likely due to orthostatic hypotension, but the etiology of the symptom was unclear and could not be explained by an underlying pathophysiologic mechanism. The provider also stated that the cause of the dizziness/lightheadedness did not have a specific underlying cause and that orthostatic hypotension was not a unifying diagnosis. At the outset, the Board finds that the VA examinations are adequate for appellate review and entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Board finds that the competent evidence of record shows that the Veteran’s symptoms of dizziness and lightheadedness are due to an undiagnosed illness. All the VA examinations of record support this finding. The June 2020 VA examination and August 2020 addendum opinion clearly found that the Veteran’s dizziness and lightheadedness were due to an undiagnosed illness. The August 2020 opinion specifically found that there was no unifying diagnosis or specific etiology and that they were therefore a manifestation of an undiagnosed illness. While the October 2009 VA examiner stated that dizziness appeared orthostatic, the August 2020 opinion clearly explained that this was not a unifying diagnosis as it did not provide an underlying pathophysiologic mechanism that explained the Veteran’s symptoms. The Board also finds that the October 2009 and June 2020 examiners’ findings of dizziness/lightheadedness would warrant a compensable evaluation under the ratings for peripheral nerves. While not assigning a particular rating to the Veteran’s disability, the Board notes that under the Diagnostic Code pertaining to peripheral vestibular disorder, occasional dizziness warrants a rating of 10 percent. 38 C.F.R. § 4.87, DC 6204. The Board therefore finds that the Veteran is a Persian Gulf veteran whose dizziness/lightheadedness is due to an undiagnosed illness that manifested to a compensable degree prior to December 31, 2021. Service connection is therefore warranted. 38 C.F.R. § 3.317(a)(1). 2. Entitlement to service connection for persistent weakness and fatigue, to include as due to an undiagnosed illness The Veteran contends that his persistent weakness and fatigue are due to an undiagnosed illness related to Persian Gulf service. The Board concludes that the Veteran is a Persian Gulf veteran with an undiagnosed illness involving symptoms of dizziness and lightheadedness that has manifested to a degree of 10 percent or more. Service connection is therefore warranted. 38 C.F.R. § 3.317(a)(1). As discussed above, the Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). October 2013 VA treatment records show a daily dose of aspirin and naproxen to address muscle aches, as well as ibuprofen. A February 2010 VA examination noted symptoms of feeling tired and weak. The examiner stated that there were no objective indicators to explain this symptom. The examiner stated that the Veteran attributed the symptoms to the lack of an exercise routine. The Board notes that as a layperson the Veteran is not competent to opine on medically complex matters such as etiology and assigns his opinion no probative weight. A June 2020 VA muscle examination found symptoms of generalized pain/discomfort, weakness and fatigue and found that they were due to an undiagnosed illness. The examiner further opined that the Veteran’s symptoms were nonspecific and that there was no unifying diagnosis that explained his various symptoms. The provider also found that there was no nexus to service as there was no documentation of weakness/fatigue being evaluated during service. An August 2020 VA opinion from the same provider stated that the Veteran’s weakness and fatigue symptoms were as likely as not a manifestation of an undiagnosed illness. As a rationale, the provider said that the medical record did not clearly explain the illness causing the weakness and fatigue and that there was no one diagnosis that explained the Veteran’s symptoms. At the outset, the Board finds that the VA examinations are adequate for appellate review and entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Board finds that the competent medical evidence of record indicates that the Veteran’s symptoms of dizziness and lightheadedness are due to an undiagnosed illness. All the VA examinations of record support this finding. The February 2010 VA examination found that no objective indicators explained the symptoms of weakness and fatigue. The August 2020 VA examination found pain, muscle weakness and fatigue. The June 2020 and August 2020 opinions clearly found that the Veteran’s weakness and fatigue were due to an undiagnosed illness, both noting a lack of a unifying diagnosis to explain his symptoms. The Board also finds that the June 2020 examiner’s findings of persistent muscle weakness, generalized pain/discomfort and fatigue would warrant a compensable evaluation. October 2013 private treatment records show that the Veteran was prescribed multiple pain medications to address pain and muscle aches, including daily doses of aspirin, ibuprofen and naproxen. While not assigning a particular rating to the Veteran’s disability, the Board notes that under the Diagnostic Code pertaining to the fibromyalgia, continuous medication to control symptoms such as generalized musculoskeletal pain and fatigue warrants a rating of 10 percent. 38 C.F.R. § 4.87, DC 6204. The Board therefore finds that the Veteran is a Persian Gulf veteran whose persistent weakness and fatigue are due to an undiagnosed illness that manifested to a compensable degree prior to December 31, 2021. Service connection is therefore warranted. 38 C.F.R. § 3.317(a)(1). Increased Ratings 3. Entitlement to a rating in excess of 20 percent for partial amputation of right thumb with scar The Veteran contends that he is entitled to an increased rating for his right thumb scar. For the reasons that follow, the Board finds that a rating in excess of 20 percent is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran’s right thumb scar has been rated under Diagnostic Code (DC) 7804, which rates unstable or painful scars. Under the DC, a 10 percent rating is assigned for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or four scars that are unstable or painful, and a 30 percent rating is assigned for five or more scars that are unstable or painful. An unstable scar is defined under the DC as one where, for any reason, there is frequent loss of covering of skin over the scar. The DC also indicates that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804. The Board notes that the August 2018 changes to the rating criteria for the skin did not alter the provisions of DC 7804. A September 2013 VA scar examination found one painful scar on the right thumb but found that it was not unstable. The examiner also found a scar on the right forearm, with a total are of 5 square centimeters for the two superficial, non-linear scars. The examiner noted the Veteran’s reports of pain when he put pressure on the thumb scar and noted that it required adjustment to complete occupational tasks but that as the Veteran’s work was mostly computer-related it would not likely be a major impact. A July 2014 VA examination found one scar on the right thumb. The examiner found that it was both painful and unstable, noting the Veteran’s reports that the skin split open when dry. The examiner found that the scar was a deep, non-linear scar measuring 1.3cm by 0.6cm and found that it limited the Veteran’s ability to type, squeeze objects and do manual labor, especially in winter when it was dry. A June 2020 VA examination evaluated the Veteran’s right hand scar. The examiner noted the Veteran’s reports that the scar hurt at times, cracked in winter and became irritated, at times causing trouble writing. The examiner found one painful scar and found no unstable scars. The examiner found no scars due to burns. The examiner found two scars on the right upper thumb and forearm, one 2cm by 2cm and one 3cm by 0.5cm, with a total area of 5.5cm. The examiner found that the Veteran’s right thumb scar did not cause limitation of function. A June 2020 VA hand examination noted irritation and numbness of the right thumb. The examiner found normal range of motion and found a 2 cm gap between the thumb and fingers. The examiner found that there was no evidence of pain on range of motion testing/examination or one use of the hand. The examiner also found no evidence of localized tenderness or pain on palpation. The examiner noted that the Veteran’s scar affected his manual dexterity. The examiner found that functional impairment was not such that the Veteran would be equally well served by amputation with prosthesis. A June 2020 VA opinion found that the Veteran’s thumb scar interfered with fine finger dexterity as coordination was limited. The examiner also found that it would interfere with working on a computer or holding a pencil or pen and that grasping was slightly compromised by about 20 percent. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Veteran submitted a July 2011 statement reporting that his right thumb scar was both painful and unstable. He also noted that he is right-handed, and the scar impedes writing and typing. The Board notes that the Veteran is competent to report lay observable symptoms such as pain and loss of skin on his thumb and accords his statements significant probative weight. The Board finds that the competent evidence of record is against an evaluation above 20 percent for the period on appeal. To warrant a 30 percent rating, the evidence would need to show five or more scars that are unstable or painful, or three or four scars that are unstable and painful. 38 C.F.R. § 4.118 DC 7804, Note (2). The Board finds that the Veteran’s right thumb scar disability is characterized by one right thumb scar that it is both painful and unstable. The Veteran submitted competent lay evidence that his scar was both painful and unstable. Both VA examiners noted that the thumb scar was painful. The July 2014 VA examiner also found that it was unstable, and while the June 2020 VA examiner did not find that the scar was unstable on examination, he did note lay evidence that the scar cracked and became irritated in winter. The evidence also shows a second scar on the right forearm. These symptoms are encompassed by the 20 percent disability rating already assigned, as it includes both pain and instability and therefore contemplates the Veteran’s symptoms of pain and cracking of the skin and their associated impairments. A rating in excess of 10 percent under DC 7804 is therefore not warranted. The Board has also considered whether a separate rating is warranted for right thumb functional loss under DC 7805. As noted above, the July 2014 examiner found a functional impairment of problems typing, especially when the skin split. The June 2020 examiner also noted reduced manual dexterity and occasional problems writing. Under DC 7805, any disabling effects not considered in a rating under DC 7800-04 should be evaluated under an appropriate DC. The Board has therefore considered a rating under 5228 for limitation of motion of the thumb. Under DC 5228, a 0 percent rating is assigned for limitation of motion with a gap of less than one inch (2.5cm) between the thumb pad and the fingers. A 10 percent rating is assigned for limitation of motion with a gap of one to two inches (2.5 to 5.1cm) between the thumb pad and the fingers and 20 percent rating is warranted for a gap of more than two inches (5.1cm). The June 2020 VA hand examination found that the Veteran has a gap of 2cm between his thumb pad and fingers, corresponding to a noncompensable rating. The Board therefore finds that a rating under the DC would therefore provide no benefit to the Veteran. There is also no indication in the record that the Veteran’s thumb is ankylosed and thus a rating under DC 5224 for thumb ankylosis is not warranted. The Board has also considered rating as amputation, but as the June 2020 VA hand examination, while noting reduced manual dexterity, found that functional impairment was not such that the Veteran would be equally well served by amputation with prosthesis. Ratings under DC 5152 for amputation of the thumb is therefore not warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating above 20 percent for partial amputation of right thumb with scar. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. REASONS FOR REMAND 4. Entitlement to service connection for sleep pattern change and night sweats, to include as due to an undiagnosed illness The August 2018 Board decision requested a VA examination to determine whether the Veteran’s sleep and night sweat symptoms were due to an undiagnosed illness. An examination was provided in April 2020, however rhe Board finds that the examination was inadequate for review and remand for a new VA examination is required. The April 2020 VA examination noted the Veteran’s symptoms of sleep impairment and night sweats. The examiner also diagnosed unspecified anxiety disorder. The examiner then provided multiple opinions: 1) sleep issues did not have a clear diagnosable cause and therefore are not due to a specific medical diagnosis; 2) sleep issues may be due to tinnitus, back pain, anxiety or another unknown cause but it is unclear if sleep issues are due to those issues and records do not support a clear diagnosable cause; 3) anxiety disorder was not likely due to the sleep disorder/night sweats in service; 4) sleep issues are subsumed under the unspecific anxiety disorder and do not require a separate diagnosis. The Board finds that the April 2020 opinion is unclear as the examiner found both that the Veteran’s sleep issues were not due to a specific medical diagnosis and records did not support a clear diagnosable cause and that they were subsumed in the Veteran’s diagnosed anxiety disorder. The two findings are inherently contradictory, and the examiner did not provide any explanation to resolve the contradiction. The opinion is therefore inadequate and remand for a new examination is required. Once VA has provided a VA examination, it is required to provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner also found that the Veteran’s sleep issues may be due to the Veteran’s service connection back disability or tinnitus. The question of secondary service connection has therefore been raised by the record and an opinion regarding whether the Veteran’s service-connected back and tinnitus disabilities caused or aggravated his sleep symptoms is required upon remand. 5. Entitlement to an initial compensable rating for left hand dermatitis with chronic paronychia The August 2018 Board decision requested a new VA skin examination. A June 2020 VA skin examination noted a history of over the counter medication and found that there had been no treatment (topical or systemic) in the prior 12 months. However, the Board’s review indicates shows that the Veteran has been prescribed treatment with topical corticosteroids at various points during the period on appeal. A September 2009 VA examination noted use of an unknown topical steroid for a month. July 2015 VA treatment records show a prescription for betamethasone dipropionate ointment to be applied for 7 days, with one refill. November 2019 VA treatment dermatology records noted hand dermatitis and limited psoriasis. The provider prescribed betamethasone diproprionate, instructing the Veteran to use the medication for three weeks, stop for one week and repeat the cycle, using Vaseline when not applying topical steroids. The record therefore shows a history of treatment with prescription topical corticosteroids, including treatment within the 12 months prior to the June 2020 examination. A medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The Board also notes that changes to the rating criteria for the skin became effective August 13, 2018. Claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. 83 Fed. Reg. 32, 592 (July 13, 2018). As the current appeal is an initial increased rating claim arising from the Veteran’s July 2009 application for compensation, it must be considered under both the old and new criteria. Under the new criteria for the skin, systemic therapy is defined as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. However, under the older criteria for rating skin disabilities, a topical corticosteroid may constitute systemic therapy under DC 7806 based on the factual circumstances of the case. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017); 38 C.F.R. § § 4.118. The Board notes that the prior VA examinations of record also did not address the nature of the Veteran’s treatment. The September 2009 examination noted treatment with an unknown topical steroid but did not offer an opinion regarding whether this constituted systemic treatment. The July 2014 VA examination was silent regarding any history of treatment and found no treatment in the prior 12 months. The October 2019 VA examiner did not provide a response regarding treatment. As the record shows use of topical corticosteroids at various points during the period on appeal, an opinion regarding whether that treatment constituted systemic therapy should also be obtained upon remand. The opinion should include a detailed rationale for this finding and specifically address whether there were side effects, if side effects were not localized to the treated area, and the percentage of the body that was affected. 6. Entitlement to an initial rating in excess of 10 percent for a right knee injury is remanded. The August 2018 Board decision requested a new VA examination to determine the severity of the Veteran’s right knee disability. A November 2019 VA examination conducted range of motion testing and found flexion limited to 95 degrees. While the examiner found pain on flexion and passive motion, she did not note the point in range of motion at which pain began. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. The Board also notes that effective February 7, 2021, the Diagnostic Codes applicable to knee disabilities have changed. As pertinent to this issue, Diagnostic Code 5257 now requires additional evidence, such as type and treatment, to rate knee instability if such is present. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 20202) (to be codified at 4.71a, Diagnostic Code 5257). The examination should be conducted in such a way that it includes findings consistent with the new requirements of Diagnostic Code 5257. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current sleep and night sweats disability. The examiner should review the file and provide a complete rationale for all opinions expressed. The following opinions are requested: a) Are the Veteran’s current sleep impairment/night sweats symptoms due to an undiagnosed illness or attributable to a specific medical diagnosis? If they are not attributable to a specific diagnosis, the examiner should indicate whether they are as likely as not a manifestation of an undiagnosed illness or a medically unexplained chronic multisystem illness. b) If the Veteran’s symptoms are attributable to a known diagnosis/diagnoses, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service or whether it was caused or aggravated by the Veteran’s service connected back and tinnitus disabilities. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 2. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his left-hand dermatitis. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should address the Veteran’s history of treatment with topical corticosteroids, including betamethasone dipropionate ointment, and should provide a detailed opinion regarding whether that treatment constituted systemic therapy. The opinion should specifically discuss the nature and extent of any side effects, if side effects were not localized to the treated area, and the percentage of the body that was affected, as well as any other relevant factors. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his right knee disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all right knee pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The knee joints should also be tested for instability and any instability found should be noted, to include the type of instability and treatment received for the same, if any. Findings pertaining to knee instability should comply with the newly enacted Diagnostic Criteria 5257 effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 4.71a, Diagnostic Code 5257) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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