Citation Nr: 21064481 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-49 042 DATE: October 20, 2021 ORDER The appeal of a compensable rating for residual scar, abdomen and trunk, status/post lumbar spine surgery is withdrawn. A 20 percent rating, but no more, for lumbar degenerative disc disease, status/post discectomy L3-4, L4-5 (DDD) prior to December 9, 2014, is granted. A 20 percent rating, but no more, for lumbar DDD prior to March 27, 2017, is granted. A rating in excess of 40 percent for lumbar DDD since March 27, 2017, is denied. A 20 percent rating, but no more, for a neurologic deficit of the left foot is granted. A rating in excess of 10 percent for DDD with right lower extremity (RLE) radiculopathy is denied. Service connection for insomnia is granted. Service connection for bilateral hearing loss is denied. Service connection for obstructive sleep apnea (OSA) is denied. REMANDED A total disability based on individual unemployability (TDIU) FINDINGS OF FACT 1. The Veteran had active duty from February 1998 to August 2009. 2. In January 2021, prior to promulgation of a decision on the appeal, the Veteran indicated his intent to withdraw the appeal of a compensable rating for a back scar. 3. Prior to December 9, 2014, a low back disability was manifested by subjective complaints of pain; objective findings included forward flexion to be, at worst, 70 degrees, the combined range of the thoracolumbar spine to be, at worst, 120 degrees, and no intervertebral disc syndrome (IVDS) or muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour. 4. Prior to March 27, 2017, a low back disability was manifested by subjective complaints of pain; objective findings included inconsistent range of motion (ROM) testing, IVDS without incapacitating episodes, and no ankylosis. 5. Since March 27, 2017, a low back disability has been manifested by subjective complaints of pain and difficulty performing activities of daily living; however, ankylosis and IVDS with incapacitating episodes have not been shown. 6. A left foot disability has been manifested by subjective complaints of pain and numbness; objective findings include moderate incomplete paralysis of the left sciatic nerve. 7. Radiculopathy of the RLE has been manifested by subjective complaints of pain and numbness; objective findings include mild incomplete paralysis of the right sciatic nerve. 8. Insomnia was caused or aggravated by a service connected disability. 9. Bilateral hearing loss is not shown for VA purposes. 10. OSA was not shown in service and is not casually or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of a compensable rating for residual scar, abdomen and trunk, status/post lumbar spine surgery have been met. 38 U.S.C. §§ 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2021). 2. The criteria for a 20 percent rating, but no more, for lumbar DDD prior to December 9, 2014, have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 5243 (2021). 3. The criteria for a 20 percent rating, but no more, for lumbar DDD prior to March 27, 2017, have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5243 (2021). 4. The criteria for a rating in excess of 40 percent for lumbar DDD since March 27, 2017, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5243 (2021). 5. The criteria for a 20 percent rating, but no more, for neurologic deficit of the left foot have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 8520 (2021). 6. The criteria for a rating in excess of 10 percent for DDD with RLE radiculopathy have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 8520 (2021). 7. Insomnia is secondary to a service connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2021). 8. Bilateral hearing loss was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). 9. OSA was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in April 2021. A copy of the transcript has been associated with the claims file. Withdrawal of an Increased Rating for a Back Scar At the hearing, the Veteran expressed intent to withdraw the appeal of a compensable rating for a back scar. No further correspondence was received from the Veteran on this issue. Based on the above, he expressed his intent to withdraw the appeal in April 2021. As such, the appeal is withdrawn, and no further adjudicative action will be taken. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. §§ 4.1. Separate diagnostic codes identify the various disabilities. Lumbar Spine Disability Prior to December 9, 2014, the Veteran was rated at 10 percent for a lumbar spine disability. From December 9, 2014, to February 27, 2015, he was temporarily rated at 100 percent for lumbar spine surgery. The 10 percent rating was resumed effective March 1, 2015. In March 2017, he was assigned a 40 percent rating. As such, the claims will be considered for the time periods prior to and since the Veteran's surgery. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Specifically, the amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. Under the applicable rating criteria, a 20 percent rating is warranted when the objective medical evidence shows: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted when the objective medical evidence shows: forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of IVDS having a total duration of at least four weeks but less than six weeks during the past 12 months. A rating in excess of 40 percent is warranted when the objective medical evidence shows: unfavorable ankylosis of the entire thoracolumbar spine (50 percent); or IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months (60 percent). Turning to the medical evidence for the first period on appeal, the medical evidence does not show forward flexion to be between 30 and 60 degrees. Specifically, in an April 2009 VA examination, the Veteran complained of back pain beginning in 2004. Upon examination, forward flexion was 70 degrees. Nonetheless, the combined range of motion of the thoracolumbar spine has been shown to be 120 degrees. Specifically, in an April 2009 VA examination, flexion was 70 degrees, extension was 20 degrees, and right and left flexion were 15 degrees each. This totaled 120 degrees, consistent with a 20 percent rating. Further, there is no evidence of IVDS or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Specifically, in an April 2009 VA examination, the examiner wrote that there was no evidence of kyphosis, lordosis, or scoliosis. Based on the above, the medical evidence supports a 20 percent rating, but no more, for a lumbar spine disability prior to December 9, 2014. In this regard, the medical evidence showed forward flexion to be, at worst, 70 degrees, the combined range of motion of the thoracolumbar spine to be, at worst, 120 degrees, and no evidence of IVDS or muscle spasm resulting in abnormal gait or abnormal spinal contour. The medical evidence does not support a 40 percent rating, as forward flexion has not been shown to be 30 degrees or less, and there is no evidence of ankylosis or IVDS. While clinical records show treatment for a lumbar spine disability, they do not contradict these findings. Therefore, the medical evidence supports a 20 percent rating, but no more, for a lumbar spine disability prior to December 9, 2014. Turning to the medical evidence for the second period on appeal, the medical evidence does not show forward flexion to be 30 degrees or less. Specifically, in a June 2015 VA examination, the Veteran complained of pain. Upon examination, the examiner noted that the Veteran was unable to perform full range of motion (ROM) testing at rest. However, the examiner also wrote that during formal ROM testing, the Veteran moved 20-30 degrees or less in all directions but that the results were unreliable. Further, there was no evidence of ankylosis. Specifically, in a June 2015 VA examination, the examiner marked that the Veteran did not have ankylosis. As to IVDS, the medical evidence showed IVDS without incapacitating episodes. Specifically, in a June 2015 VA examination, the examiner marked that IVDS did not cause incapacitating episodes. Based on the above, the medical evidence supports a 20 percent rating, but no more, prior to March 27, 2017. In this regard, the medical evidence did not show forward flexion of the thoracolumbar spine to be 30 degrees or less. Specifically, the examiner determined that the ROM testing was inconsistent and therefore cannot be used to assess his limitation of motion. Further, the medical evidence showed no evidence of ankylosis or that IVDS caused incapacitating episodes. While clinical records showed treatment for a lumbar spine disability, they do not contradict the above findings. Therefore, the 20 percent rating that was assigned prior to the Veteran's back surgery in December 2014, is continued until the grant of the 40 percent rating on March 27, 2017. Turning to the medical evidence for the third period on appeal, there is no evidence of ankylosis. Specifically, in a March 2017 VA examination, the Veteran reported that he could not run, stand more than 25 seconds, sit still for more than a few minutes, and sleep more than four to five hours without severe pain. Upon examination, the examiner marked that the Veteran did not have ankylosis of the thoracolumbar spine. Further, in a June 2021 clinical record, he complained of pain, numbness, and tingling. However, upon examination, the clinician marked that the Veteran did not have ankylosis of the thoracolumbar spine. Further, while there is evidence of IVDS, the totality of the medical evidence showed that it does not cause incapacitating episodes. Specifically, in a March 2017 VA examination, the examiner marked that the Veteran had IVDS with no incapacitating episodes. However, in a May 2021 clinical record, the clinician wrote that IVDS caused incapacitating episodes having a total duration of at least six weeks for 12 months. In addition, in a June 2021 clinical record, the clinician marked that the Veteran had IVDS with no incapacitating episodes. Based on the above, the medical evidence does not support a rating in excess of 40 percent for a lumbar spine disability since March 27, 2017. In this regard, the medical evidence showed no evidence of ankylosis. Further, while IVDS has been shown, the totality of the medical evidence shows that it has not caused incapacitating episodes having a total duration of at least six weeks for 12 months. While clinical records show treatment for a lumbar spine disability, they do not contradict the above findings. Therefore, the medical evidence does not support a rating in excess of 40 percent for a lumbar spine disability since March 27, 2017. Radiculopathy of the Lower Extremities The Veteran has been rated at 10 percent each under DC 8520 for a left foot disability and radiculopathy of the RLE. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under DC 8520, a 20 percent rating is warranted when the objective medical evidence shows moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted when the objective medical evidence shows moderately severe incomplete paralysis of the sciatic nerve. Turning to the medical evidence, at worst, moderate incomplete paralysis of the left sciatic nerve and mild incomplete paralysis of the right sciatic nerve is shown. Specifically, in a January 2014 clinical record, the Veteran complained of pain radiating down to the left leg and intermittent right "shocks." Upon examination, sensation was normal. Further, in a June 2015 VA examination, he complained of numbness; however, upon examination, radiculopathy of the left lower extremity (LLE) was rated as mild and radiculopathy of the RLE was not noted. In addition, in a March 2017 VA examination, the Veteran complained of constant pain on the left side, intermittent pain on the right side, and constant numbness. Upon examination, radiculopathy of the LLE and RLE was rated as mild. In addition, in a November 2017 clinical record, he reported constant numbness in the LLE and intermittent numbness in the RLE. In a June 2019 clinical record, the Veteran reported pain down the lower extremities but stated that the pain on the right side was not constant. Further, in a January 2020 clinical record, he complained of chronic pain down the LLE with numbness in both feet and calves. In addition, in a June 2021 clinical record, he complained of numbness and tingling. Upon examination, numbness in the LLE was moderate but there was no numbness in the RLE. Based on the above, the medical evidence supports a 20 percent rating, but no more, for radiculopathy of the LLE. In this regard, the medical evidence showed, at worst, moderate incomplete paralysis of the left sciatic nerve. The medical evidence does not support a 40 percent rating, as it did not show moderately severe incomplete paralysis of the left sciatic nerve. However, the medical evidence does not support a rating in excess of 10 percent for radiculopathy of the RLE. In this regard, the medical evidence showed, at worst, mild incomplete paralysis of the right sciatic nerve. The medical evidence does not support a 20 percent rating, as it does not show moderate incomplete paralysis of the right sciatic nerve. With respect to all the increased rating claims, the Board has also considered the Veteran's lay statements and testimony that his disabilities are worse. In granting a higher rating, the Board has considered the Veteran's lay statements regarding his symptoms as well as the evidence provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. In sum, after a careful review of the evidence of record, higher ratings are granted for the low back prior to December 9, 2014, and March 27, 2017, and for the left foot but denied for a low back disability since March 27, 2017, and for RLE radiculopathy. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Insomnia As an initial matter, the Veteran contends that insomnia was caused or aggravated by a service connected back disability. The record reflects that he was diagnosed with insomnia and is service connected for a back disability. Therefore, the first two elements of direct service connection, a current disorder and a service connected disability, are met. As to nexus, in a February 2021 opinion, the clinician opined that insomnia was caused or aggravated by a service connected back disability, as the Veteran's back pain caused sleep disturbances. This evidence weighs in support of the claim. Further, in a May 2021 opinion, the clinician opined that insomnia was caused or aggravated by a service connected disability. He reasoned that the Veteran reported insomnia secondary to back pain in service. This evidence weighs in support of the claim. As such, the medical evidence weighs in favor of a finding that insomnia was caused or aggravated by a service connected back disability and the appeal is granted. Hearing Loss Hearing loss and tinnitus are recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the evidence, the Veteran does not have hearing loss for VA purposes. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores, using the Maryland CNC test, are less than 94 percent. In April 2017, the Veteran underwent a VA examination. Audiometric findings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 20 25 LEFT 20 10 15 20 30 Speech discrimination tests were not conducted, as the examiner wrote that they were not appropriate for this Veteran due to "language difficulties, cognitive problems, inconsistent word recognition scores, etc." Nevertheless, as the Veteran's puretone threshold levels did not meet 40 decibels in any of the frequencies and were not above 26 decibels in three frequencies, he does not have hearing loss for VA purposes. Therefore, a current disability is not shown, and the first element of service connection has not been met. OSA As to a current disorder, OSA was diagnosed in 2019. Therefore, the first element of service connection is met. As to an in-service incurrence, service treatment records (STRs) are absent of complaints, diagnosis, or treatment of OSA. Specifically, STRs show treatment of a back disability and insomnia, among others, but do not show OSA or symptoms of OSA. Therefore, the second element of service connection is not met, and the medical evidence does not support the claim of service connection. With respect to the service connection claims, the Board has considered the Veteran's lay statements and testimony these disorders began in service. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer etiologies of these disorders. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28. Vet. App. 366, 369-370 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND As to the remaining issue of TDIU, the Veteran's combined rating is 60 percent; therefore, he currently does not meet the schedular criteria for TDIU. As the assignment of a rating for insomnia is pending, the claim of entitlement to TDIU is remanded pending the adjudication of the severity of insomnia. The matter is REMANDED for the following actions: 1. Determine the Veteran's rating for insomnia. 2. After assigning the rating, adjudicate the issue of entitlement to TDIU. If referral for extraschedular consideration is needed, that should be undertaken. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED