Citation Nr: 21002394 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-28 207A DATE: January 13, 2021 ORDER Effective from April 14, 2014, entitlement to a rating of 10 percent, but no higher, for scars of the left knee is granted. REMANDED Entitlement to a rating in excess of 30 percent for limitation of motion of the left knee prior to April 14, 2014 is remanded. Entitlement to a rating in excess of 30 percent for status post left knee replacement since April 14, 2014 is remanded, excluding the periods for which temporary total ratings pursuant to 38 C.F.R. § 4.30 have been established. Entitlement to a rating in excess of 10 percent for instability of the left knee is remanded. Entitlement to a rating in excess of 10 percent for limitation of the right knee prior to December 21, 2015, is remanded. Entitlement to a rating in excess of 10 percent for instability of the right knee prior to December 21, 2015, is remanded. Entitlement to a rating in excess of 30 percent status post right knee replacement since December 21, 2015 is remanded, excluding the periods for which temporary total ratings pursuant to 38 C.F.R. § 4.30 have been established. Whether the reduction of the separate 10 percent rating for instability of the right knee effective December 21, 2015 was proper, is remanded. FINDING OF FACT The Veteran’s two surgical scars on the left knee are described as painful since April 14, 2014, the date of the Veteran’s surgery. CONCLUSION OF LAW Effective from April 14, 2014, the criteria for a rating of 10 percent for the scars on the left knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to January 1984 and from September 1989 to January 1992. In September 2018, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. In April 2019, the Board issued a decision denying the claims presently on appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and, in a June 2020 Joint Motion for Partial Remand (JMPR), the claims were remanded to the Board by mutual agreement between the Secretary and the Veteran’s attorney. Increased Rating 1. Scars of the left knee Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2020). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is seeking a compensable rating for two scars of the left knee. The Veteran is currently rated pursuant to Diagnostic Code 7805. During the pendency of this appeal, VA published a final rule amending its regulations on skin disabilities effective August 13, 2018. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. The Board will therefore evaluate the Veteran’s scars under both the old and new criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Board will discuss both periods of regulations in order to determine if a compensable rating is warranted under the applicable scar criteria during that time period. Under the scar regulations in effect prior to August 13, 2018, scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7802 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7804, 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 of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7805, any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect from October 23, 2008 to August 13, 2018). Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 square centimeters) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 square centimeters) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 square centimeters) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 square centimeters) are rated as 40 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect since August 13, 2018). Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) or greater is rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802 (in effect since August 13, 2018). Diagnostic Code 7804 provides ratings for scars that are unstable or painful. One or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to DC 7804 provides that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804 (in effect since August 13, 2018). Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect since August 13, 2018). In addition to the June 2011, December 2012, February 2013, and June 2016 VA examination reports discussed above in connection with the claim pertaining to the left knee disability, the Veteran was afforded VA examinations in July 2014, April 2016, and a specific scars examination in June 2016. The July 2014 VA examiner determined the two scars on the left knee are superficial, linear, and neither painful nor unstable. The first measures 0.2 inches squared, and the second measures 0.3 inches squared. The April 2016 VA examination pertained only to the right knee and did not discuss the scars on the left. In his August 2014 notice of disagreement, the Veteran reported pain and numbness in the left knee scars. Finally, the June 2016 scars VA examination noted the scars on the left knee totaled 27.8 cm squared, were superficial, non-linear, stable, and not objectively painful. However, the Veteran did state that his scars are painful when he has been sitting for a while. See June 2016 VA scars examination. The Veteran’s treatment records do not document any complaints or treatment for his left knee scars during the pendency of this appeal, noting only the existence of the scars. Thus, the Veteran’s medical records do not document any deep scars, unstable scars, or painful scars as it pertains to the left knee. Affording the Veteran the benefit of the doubt and in compliance with the June 2020 JMPR directives, the Board finds that the Veteran’s statements throughout the appeals period that his two scars on the left knee due to his total knee replacement surgery on April 14, 2014, are painful, to be both competent and credible. As such, the Board finds that a 10 percent rating pursuant to Diagnostic Code 7805, which was not affected by the regulatory changes on August 13, 2018, is warranted from April 14, 2014. In this respect, the Veteran has consistently argued that he suffers from pain and numbness associated with his left knee scars. See again August 2014 Notice of Disagreement. However, the Board does not find the Veteran is entitled to a rating in excess of 10 percent at any point during the appeals period, either under Diagnostic Code 7805 or under a different code, for which there are ratings in excess of 10 percent available. The objective findings noted in the VA examination reports, treatment records, and lay statements do not warrant higher ratings under Diagnostic Codes 7801 or 7804, either prior to or since August 13, 2018, as the scars are not of an area or areas exceeding 12 square inches (77 square centimeters), nor does he have more than 2 scars, respectively. The Board has considered whether staged ratings are appropriate in this case. The evidence of record shows that the symptoms of the left knee scars have not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. Thus, under the regulations in effect prior to and since August 13, 2018, the Veteran is now appropriately in receipt of a 10 percent rating. Accordingly, a rating of 10 percent is granted from April 14, 2014, the date of the Veteran’s left knee total knee replacement surgery. However, as the preponderance of the evidence is against the claim for a rating in excess of 10 percent, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Right and left knee disabilities The Veteran is seeking ratings higher than 30 percent prior to April 14, 2014 pursuant to Diagnostic Code 5010-5061, and for the periods from June 1, 2015 to January 29, 2017, and since May 1, 2017 pursuant to Diagnostic Code 5055. The Board notes that he was assigned a temporary 100 percent rating pursuant to the provisions of 38 C.F.R. § 4.30, for the period from April 14, 2014 through May 31, 2015, and from January 30, 2017 to April 30, 2017. The temporary 100 percent ratings are not on appeal. Regarding the right knee disability, the Veteran was rated at 10 percent, pursuant to Diagnostic Code 5010-5261, prior to December 21, 2015. In December 2015, the Veteran underwent knee replacement surgery. Thereafter, he was assigned a temporary 100 percent rating pursuant to the provisions of 38 C.F.R. § 4.30, for the period from December 21, 2015 through January 31, 2017. Effective from February 1, 2017, the Veteran was assigned a 30 percent rating pursuant to Diagnostic Code 5055. The Veteran is seeking ratings higher than 10 percent prior to December 21, 2015, and a rating in excess of 30 percent from February1, 2017. Similarly, the evidence of record for the period in which a 100 percent rating is assigned pursuant to the provisions of 38 C.F.R. § 4.30, from December 21, 2015 to February 1, 2017, will not be considered. The Veteran filed his claim for increased ratings for the right and left knee disabilities in May 2011. Therefore, the relevant temporal focus pertaining to the right and left knee disabilities is from May 2010 to the present. See 38 C.F.R. § 3.400. During the pendency of the appeal, the Veteran was scheduled for VA examinations to assess the severity of his right and left knee disabilities in June 2011, December 2012, February 2013, and June 2016. During the pendency of this appeal, the Court issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) which is applicable to this case. In Sharp v. Shulkin, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp, at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Here, the Veteran only specifically reported on the presence of flare-ups in the December 2012 VA examination after sitting, climbing, or crawling, which he stated resulted in pain and stiffness. However, the June 2020 JMPR noted that during the February 2013 VA examination, the Veteran also reported he suffered from flare-ups of knee pain caused by the same factors as those reported at the December 2012 VA examination and, a flare of his left knee pain following prolonged driving to the VA examination appointment that caused significantly decreased range of motion. See June 2020 JMPR. Further, the June 2020 JMPR notes several instances of lay statements by the Veteran in the record that indicated his bilateral knee pain was exacerbated by activity/ exercise, prolonged sitting/ standing, and bending; and, his pain was aggravated by laying down. See id; see also September 2014 and February 2015 VA treatment records. However, no range of motion testing during a flare up was provide and there was no reasoning given as to why testing was not provided during any of the VA examinations conducted.. As such, a remand is required for retrospective opinions regarding the findings in the June 2011, December 2012, February 2013, and June 2016 VA examinations to ensure compliance with the holding in Sharp. Further, the RO should obtain a new VA examination for the left and right knee disabilities. 2. Instability of the right and left knees As discussed above, the Board has found that additional development is necessary regarding the right and left knee disabilities and a VA examination is required. The Veteran is also in receipt of a separate rating of 10 percent for instability of the left knee pursuant to Diagnostic Code 5271. The Veteran is in receipt of a separate 10 percent rating for instability of the right knee prior to December 21, 2015, a noncompensable rating thereafter, pursuant to Diagnostic Code 5271. Given that, consideration of whether the Veteran is entitled to a rating in excess of 10 percent for the left knee instability is inextricably intertwined with the above requested development of the left knee disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Similarly, the determination of whether the Veteran is entitled to a rating in excess of 10 percent for right knee instability prior to December 21, 2015, is also inextricably intertwined with the above requested development of the right knee disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Propriety of the Reduction of the Right Knee Instability Rating, Effective December 21, 2015 Finally, the determination of whether the reduction of the separate 10 percent rating for instability of the right knee, effective December 21, 2015, was proper is inextricably intertwined with the above requested development of the right knee disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected left and right knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 2. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected left and right knee disabilities under the rating criteria. (a.) The examiner should provide the range of motion in degrees for the left and right knees. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 so in the report. The examiner should also review the prior VA examinations dated in June 2011, December 2012, February 2013, and June 2016 and report the same, if possible. If unable to provide THESE RETROSPECTIVE RANGE OF MOTIONS, he/she should state why and provide a reasoned explanation for the determination. (b.) The examiner shall inquire as to periods of flare- up, and note the frequency and duration of any such flare-ups for each the right and left knees. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. 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 examiner should also review the prior June 2011, December 2012, February 2013, and June 2016 VA examinations and provide a retrospective opinion. If unable to provide THESE RETROSPECTIVE RANGE OF MOTIONS, he/she should state why and provide a reasoned explanation for the determination. (c.) The examiner must comment on the level of severity of the Veteran’s left knee instability. (d.) The examiner must comment on the level of severity of the Veteran’s right knee instability prior to December 21, 2015. The presence of objective evidence of pain, excess fatigability, incoordination and weakness for the left knee should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. 4. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (Continued on the next page)   YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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