Citation Nr: 21062318 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-25 455 DATE: October 7, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's low back disability was not manifested during service or within one year of service; the preponderance of the evidence is against a finding that the Veteran's low back disability is etiologically related to an event, injury, or disease in service. CONCLUSION OF LAW The Veteran's low back disability was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from February 1971 to February 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Board remanded the claim in August 2019 to obtain the Veteran's complete service personnel records and any additional service treatments, including any X-ray studies. The Board further requested a new examination for the development of a nexus opinion due to a lack of sufficient medical evidence to decide service connection. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Despite efforts to obtain all identified and available service treatment and personnel records, it appears there may still be records missing. In such situations, where STRs and personnel records are missing, the Board has a heightened obligation to explain its findings and conclusions, a heightened duty to search for records and explain their efforts to that effect, and a requirement to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Upon completion of the evidentiary development noted above, the Board denied service connection for a low back disability in September 2020. Subsequently, the Veteran appealed this decision to the Court of Appeals for Veterans' Claims (CAVC) which accepted a Joint Motion for Remand (JMR) and vacated the Board's previous decision on grounds of insufficient reasons and bases for the denial-of-service connection. Specifically, the JMR noted that the Board did not fully discuss why it discredited the Veteran's explanation for why he did not seek medical treatment for his condition until many years after service. In August 2021, the Veteran and his representative were sent a letter notifying them that the Veteran's appeal had been returned to the Board. On September 9, 2021, the Veteran submitted a signed waiver of the 90-day window to submit additional evidence or argument and waived review by the AOJ. The Board notes, that VA received a request to hold adjudication for the entire 90-day period on September 16, 2021. However, this notice was signed by the Veteran before the 90-day waiver notice received on September 9, 2021. The earlier waiver was submitted via fax while in contrast, the later notice was sent via mail. As such, it appears the true intent of the Veteran was to expedite his appeal and waive any remaining right to submit additional evidence or argument. No additional evidence or argument has been submitted since CAVC vacated the Board's September 2020 decision. Therefore, the Board will proceed to adjudication his claim on the evidence now of record. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disease diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for a low back disability is denied. The Veteran has repeatedly contended that he injured his back in basic training at Fort Ord during active-duty service in 1971. He asserts that he was treated for an injury incurred on an obstacle course, and that he underwent two X-ray studies of his back in service. Furthermore, he contends the medical examination conducted on remand from the Board was inadequate for he believes the exam was not an exam at all but simply a quick question and answer session. He also submitted a buddy statement from R.V., another Veteran, to the effect that he recalled corresponding with the Veteran during the Veteran's service, who told him at that time about a back injury in basic training. The Veteran's available service treatment and personnel records contain no complaints, symptoms, record, diagnosis, or any other report of a back injury. The Veteran was found sound upon entry of service and the Veteran's separation examination contained no reports of injury or pain to the back. It must be noted that the RO has made attempts to obtain the Veteran's complete service treatment and personnel records however, no reports or copies of X-rays or other diagnostics have been located. After service, diagnostic outpatient imaging indicated minimal lumbar levoscoliosis with moderate lumbar degeneration in June 2011, nearly four decades after service. In April 2012, a post-operative report from Methodist Hospital in San Antonio, TX indicated the Veteran had a diagnosis of lumbar stenosis. Dr. D. L. H later examined the Veteran after his anterior microscopic transtubular surgery in October 2013 and opined that the likely cause of the Veteran's back pain was degeneration in the Veteran's spinal joints, or facets. Upon examination, the Veteran asked Dr. D.L.H. if he believed "it is likely that his degenerative disease is over 50% responsible for the old trauma with regard to his progressive degenerative disease". Dr. D.L.H. opined that this was "reasonable and accurate". Upon remand by the Board, the VA examiner conducted an in-person examination of the Veteran October 4, 2019. The examiner opined that the Veteran's low back disability was less likely than not caused by or a result of military service. The examiner made specific mention of the Veteran's asserted fall during basic training. The examiner noted the Veteran's service treatment records were silent for a low back disability. The examiner also performed a range of motion test noting limitations as well as pain experienced by the Veteran. During the examination, the examiner considered statements made by the Veteran of onset of pain after the fall and that for a year after service, he continued to experience intermittent pain. Even so, it was further noted, there was no chronicity and no continuity of care from 1973 through 2011. The Board understands the Veteran's contention that the VA exam may have appeared to have been a mere conversation. However, the examination afforded the Veteran the opportunity to explain, in-person, his military experience and contentions. The VA examiner was able to review the Veteran's entire claims file including private medical records and opinions. Most importantly, the examiner referred to the Veteran's lay assertions within the rationale and analysis. Specifically, that he suffered a fall during basic training, had x-ray studies performed, reported the condition at his separation examination and subsequently ignored the pain in his back until it got so bad, he sought medical help in 2011. The examiner further considered the private medical opinion of Dr. D.L.H. The VA medical examiner's specialty is not listed, but it is noted that the examiner is a "MD." The Board has no reason to doubt the competency of the examiner or the way in which the examiner conducted the examination or came to the reasoned opinions rendered. The Board is also not persuaded that an examination is inadequate merely because it was short, and the Veteran has provided no other reasons to challenge the examiner's opinion. Accordingly, the Board finds the VA exam was adequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). An adequate medical opinion must be based upon a consideration of the Veteran's prior medical history and must describe the Veteran's condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In short, an adequate medical opinion should contain sufficient information such that the Board is not required to rely on its own independent medical judgment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In determining whether the record reflects that the Veteran's current low back disability is related to his service, the Board acknowledges the Veteran's belief that there is such a causal connection as well as his own description of in-service incurrence of a low back disability. The Board notes that the Veteran is competent to report the onset and continuity of symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469(1994). The Veteran is certainly competent to describe the circumstances of his military duties, the pain he felt during service, and the pain he felt since service. Competency and credibility, however, are two distinct inquiries. Whereas the former is a threshold legal concept that pertains to whether a particular piece of proffered evidence can even be considered by the factfinder, the latter pertains to the credibility and weight of such evidence as assigned by the trier of fact. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (distinguishing between competence and weight and credibility and explaining that the "former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If evidence is not competent, it cannot be considered as evidence by the factfinder. Id. However, the mere fact that evidence is deemed competent does not mean that it must be found persuasive of a particular fact. See Id. If evidence is found to be competent, it is for the Board to determine what, if any, probative value to assign to that evidence. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (it is the responsibility of the Board to assess the probative weight of the evidence). Here, although the Veteran is certainly competent to comment on the events in service, the Board finds the Veteran's contentions regarding in-service incurrence and continuity of pain since service not credible given the lack of continuity of complaints or medical treatment during service or for decades after service. Indeed, the Board observes the Veteran alleges he reported symptoms of low back pain in service, received two X-ray studies, and then reported the presence of back pain on his separation examination. However, these assertions cannot be verified. In fact, the Veteran's separation examination contains no reports of the presence of back pain. The only documented report of symptoms occurs almost four decades after separation. In assessing the credibility of evidence, the Board may consider any number of factors, to include conflicting statements or evidence, and the potential bias of the declarant. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Pond v. West, 12 Vet. App. 341, 345 (1999). The lack of contemporaneous evidence is also relevant; however, it may not generally serve as the sole basis for discrediting lay statements or testimony. Buchanan, 451 F.3d at 1337. Here, the Board emphasizes the Veteran's credibility is not being discounted solely because of a lack of contemporaneous evidence. Rather, the Veteran himself admits he never sought continued treatment after separation from service even though he claims the pain was continuous. The idea that the Veteran would not complain of an acute or an ongoing issue for nearly four decades is incredible. The Veteran has not identified any instance of reporting this pain upon leaving military service until 2011 at which time back surgery was required. cf. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (a lack of notation where such notation would normally be expected may be relied on as evidence against the existence of the fact or facts that ordinarily would have been noted). The Board notes, the Veteran has reported being "worried he would end up paralyzed if he had back surgery" and that he "would not get any treatment because he feared surgery". See June 2015 Veteran Statement. The Board also has considered the unsuccessful attempts by the RO to locate and obtain in-service x-rays reports and other treatment records. Nonetheless, the Veteran denied any back pain and noted his health was "good" at the time of separation in spite of his reports of being in chronic pain since service along with the reported need for two earlier in-service x-ray studies. See January 1973 Separation Examination. Thus, the Board does not find the Veteran's statements of continuity of symptoms credible as they are in contradiction with other evidence of record. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curium,78 F.3d 604 (Fed. Cir. 1996) (when determining whether lay evidence is satisfactory, the Board may properly consider internal consistency, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and demeanor of witness (if hearing held)). Therefore, the Board finds the VA examination with subsequent medical opinion to be significantly more credible and persuasive than statements made to VA for purposes of seeking compensation. Veteran's inconsistent and contradictory statements concerning his pain coupled with a thirty-eight-year gap between reports of symptoms lead the Board to conclude there is a preponderance of evidence against finding continuity of symptomology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (The Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). Further, the Veteran is not considered competent to medically attribute his current low back disability to a specific cause, as doing so requires medical knowledge and expertise that the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements do not constitute competent evidence that may be probative in showing an etiological relationship between the Veteran's in-service activities and the current low back disability. To determine whether such a relationship exists, the Board turns to the competent medical evidence of record. The United States Court of Appeals for Veterans Claims has stated that the probative value of a medical opinion is based on the expert's personal examination of the patient, the physician's knowledge, and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). With respect to a nexus between the current back condition and in-service occurrence, the Board assigns more probative weight to the October 2019 VA examiner's opinion which denied service connection after thorough review of the Veteran's file and in-person examination. It is noted, the Veteran submitted a private medical opinion to address the issue of nexus for his claim of low back pain. However, the medical opinion offered by Dr. D.L.H. is best characterized as speculative and therefore, not probative. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (stating that speculative medical opinion as to causation cannot establish medical nexus to service). As such, it is within the purview of the Board to evaluate the medical opinions and favor one over the other. See D'Aries v. Peake, 22 Vet. App. 97, 107 (2008). Dr. D.L.H. opined that it was "reasonable and accurate" to believe "it is likely that his degenerative disease is over 50% responsible for the old trauma with regard to his progressive degenerative disease". This opinion containing the term "reasonable" is not only speculative but uses the incorrect legal standard. Furthermore, there is no indication that Dr. D.L.H. reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran's self-reported medical history, which is inconsistent with VA treatment and personnel records which contain no reports of back pain or associated injury. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the October 2019 VA examiner's opinion. As such, the Board finds no causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). The Board has also considered whether the Veteran is entitled to service connection for low back disability as a "chronic disease." See 38 C.F.R. § 3.303 (b). The Veteran's low back disease is not included in the list of "chronic" diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with minimal lumbar levoscoliosis with moderate lumbar degenerative changes at the earliest, thirty-eight years after his separation from active service. Thus, the record does not show that the Veteran's disability manifested to a compensable degree within one year of separation nor is it included in the list of "chronic" diseases. While the Veteran has reported onset of a low back disability in and since service, the prolonged period from separation from service until 2011, without complaints and/or treatments for his alleged disability is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In the absence of credible evidence of bilateral acromioclavicular osteoarthritis within one year after separation or credible evidence continuity of symptomatology, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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