Citation Nr: 21065402 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-32 233A DATE: October 26, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, from October 29, 2012 to February 9, 2016, for adjustment disorder with mixed anxiety and depressed mood is granted. Entitlement to special monthly compensation (SMC) based on housebound status is denied. FINDINGS OF FACT 1. Throughout the period on appeal prior to February 10, 2016, the Veteran's psychiatric disability most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran did not have a single service-connected disability rated as total with an additional service-connected disability or disabilities independently ratable at 60 percent; nor was he permanently housebound by reason of service-connected disability or disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 70 percent, but no higher, from October 29, 2012 to February 9, 2016, for adjustment disorder with mixed anxiety and depressed mood have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411, DC 9434. 2. The criteria for entitlement to SMC based on housebound status have not been met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy on active duty from August 1965 to July 1968. The issues come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2016 rating decision, the RO granted a total initial disability rating of 100 percent for the Veteran's psychiatric disability, effective February 10, 2016. As the full benefit was not granted prior to February 2016, the claim remains on appeal from October 29, 2012 to February 9, 2016. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In October 2018, the Board denied the Veteran's claim of an initial rating in excess of 50 percent from October 29, 2012, to February 9, 2016, for adjustment disorder with mixed anxiety and depressed mood. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Remand (JMR). The Court found that VA failed to fulfill its duty to assist in obtaining evidence necessary to substantiate the Veteran's claims. Notably, the Court found the Board failed to make reasonable efforts to obtain federal records in the custody of the federal government. Additionally, the parties agreed that upon remand, VA must address the Veteran's entitlement to SMC under 38 U.S.C. § 1114(s). Pursuant to the JMR, the Court vacated and remanded the matter to the Board. In December 2019, the Board remanded to obtain the Veteran's outstanding records. The above claims were again before the Board in October 2020 and May 2021. The Board remanded to provide further development. The claims are again before the Board for appellate review. Increased Rating VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities 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; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that 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. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating of 70 percent, but no higher, from October 29, 2012 to February 9, 2016, for rated as adjustment disorder with mixed anxiety and depressed mood The Veteran contends that he suffers from symptoms of an acquired psychiatric disorder warranting an initial disability rating greater than 50 percent. Moreover, the Veteran asserts that the symptoms of his mental health condition have always been severe since the initial date he filed for his claim. Pursuant the JMR, VA has made efforts to obtain the Veteran's Vet Center counseling records. The Veteran's Vet Center treatment records are not included in the claims file at this time. The RO has searched for those files, but to date, the Veteran's Vet Center counseling records have not been found, and a formal finding to that effect was placed in the claims file on June 24, 2021. When there is other evidence in the file that a claimant's service records have otherwise been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. See Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo, 9 Vet. App. at 51. The record indicates that the Veteran received regular PTSD counseling with the DC Vet Center as of December 2011, which continued into the pertinent period on appeal. As the Vet Center counseling records have been deemed unavailable and limited VA mental health treatment records are found in the record for the period on appeal, the Board's evidence analysis includes a review of the Veteran's VA psychiatric evaluation in February 2016, as it relates to the Veteran's symptoms during the time in question. The Veteran's psychiatric condition is rated as 50 percent from October 29, 2012 to February 9, 2016 under DC 9434 of the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130, DC 9434. Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name). Id. When determining the appropriate disability evaluation to assign for a mental disorder, the Board must make a finding as to how psychological symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The General Rating Formula criteria are associated with objectively observable symptomatology. The plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms. Thus, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id. at 118. Turning to the evidence of record, the Veteran has a documented history of symptoms of PTSD, anxiety and depression, including social isolation, irritability, and anger. The Veteran underwent a VA examination in January 2013. The VA psychiatrist diagnosed the Veteran's psychiatric disorder as PTSD. The VA psychiatrist noted the Veteran's depression, anxiety, and adjustment disorder were symptoms of his PTSD. Additionally, the examiner reported the Veteran's diagnosis of polysubstance abuse is associated with the Veteran's PTSD diagnosis. The examiner noted the Veteran had been sober for ten years. Further the VA examiner noted the Veteran's psychological and environmental problems, identified as social isolation and unemployment; and identified moderate objective symptoms of clear signs of tension, and moderate subjective symptoms of frequent moderate depression, insomnia, fatigue, obsessing, ruminating, intrusive thoughts and memories. The examination reported the Veteran demonstrated moderate difficulty in social and occupational functions, as evidence by the Veteran's few friendships and noted conflicts with friends and family. The VA examination noted the Veteran's disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran noted that he had been married three times and divorced twice. The Veteran stated he had few friends. Upon examination, the Veteran described intrusive thoughts and memories associated with the loss of his fingers on both hands. The Veteran reported irritability, reclusiveness, and a history of substance abuse dealing with these memories. The Veteran described feelings of helplessness and vulnerability, and noted feeling angry enough to want to hurt people but did not act on his feelings. The Veteran noted trouble with impulse control and reported a history of objects. The Veteran noted problems getting along with people and maintaining relationships. The Veteran endorsed thoughts of suicide at times. For rating purposes, the examiner noted the Veteran's symptoms as depressed mood, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, inability to establish and maintain effective relationships; difficulty in adapting to stressful circumstances; and impaired impulse control, such as unprovoked irritability with periods of violence. The VA examiner noted the Veteran's behavior and affect during the session was appropriate. The Veteran was alert, cooperative and neatly dressed. The examiner described the Veteran's mood as agitated at first and later sad. There was no indication of the Veteran's impairment of thought process or communication, delusions, or hallucinations. The Veteran was properly oriented to person, place, and time. The examiner noted the Veteran was able to maintain personal hygiene and basic activities of daily living. The Veteran did not display obsessive or ritualistic behaviors. The examination noted the Veteran did not present current suicidal thoughts; however, the examination noted the Veteran did have past suicidal and homicidal ideation. The record contains an April 2013 VA treatment record from the Veteran's annual check-up. The Veteran endorsed symptoms of PTSD. He noted continued counseling. The Veteran noted a current good mood and denied suicidal or homicidal ideation. The Veteran noted living in the apartment next door to his wife. He noted his relationship with his wife had grown closer over the past two years. The Veteran reported his continued unemployment. In February 2016, the Veteran sought a mental health evaluation at a VA emergency department. The Veteran reported social stressors including the death of his wife in September 2015. He reported suicidal ideation but expressed no intent to harm himself. During the mental health triage, the Veteran noted he had a history of depression but noted increased symptoms over the recent weeks. He noted that he had been having nightmares and felt extremely angry. The Veteran stated that he was avoiding people, as he reported that he "might snap." The Veteran stated that he occasionally experienced auditory hallucinations. The Veteran reported no visual hallucinations. As indicated above, the RO provided the Veteran a mental health evaluation in February 2016 with the same psychiatrist who provided the January 2013 examination. The VA examiner reported that the Veteran's PTSD resulted in the Veteran's total occupational and social impairment. The Veteran reported that he had no social relationships over the past year. The Veteran reported no relationship with his children. The Veteran presented depressive feelings, which the examiner noted were a mix of symptoms of PTSD combined with grief over the death of his third wife. The Veteran reported a history of homelessness. The Veteran endorsed frustration and suicidal feelings, but noted he had not acted on these thoughts. After a review of the medical and lay evidence of record, the Board finds that, during the period on appeal prior to February 9, 2016, the Veteran's PTSD more nearly approximated occupational and social impairment of such severity as to warrant a 70 percent disability rating, but no higher. See 38 C.F.R. § 4.130. In this regard, the Board acknowledges that in evaluating the severity of the Veteran's psychiatric disorder, "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under the general criteria for rating mental disorders. Vazquez-Claudio, 713 F.3d at 117. However, not only is the evaluation "symptom-driven," but it is also based on consideration of the symptom's effects on the Veteran's level of impairment. Vazquez-Claudio, 713 F.3d at 117; Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Accordingly, VA must engage in a holistic analysis of the evidence of record, including the Veteran's competent lay statements regarding certain observable medical issues and symptomatology, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, (2017); see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Overall, the Board finds that the evidence suggests that the Veteran's psychiatric disability resulted in deficiencies in most areas of his life. Specifically, the Veteran's psychiatric disability manifested as an inability to establish and maintain effective social relationships. Areas of the Veteran's judgment, thinking, and mood were significantly impaired by his psychiatric disability as well. The Veteran was observed to have an anxious mood, and the Veteran reported that he experienced daily depression. Additionally, the Veteran reported impairment in his mood characterized by a feeling of helplessness, and decreased motivation. The Board also notes evidence of impaired judgment, as demonstrated by the Veteran's reported anger outbursts and issues with impulse control, such as unprovoked irritability with periods of violence. The record demonstrates the Veteran had difficulty in adapting to stressful circumstances associated with the bilateral amputation of his fingers. Finally, the Veteran reported that he experienced suicidal and homicidal ideation during the period on appeal but did not act on his impulses. In this regard, the Board notes that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Bankhead, 29 Vet. App. at 20. The Board acknowledges the heightened duty to consider the applicability of the benefit of the doubt rule, and finds the Veteran's symptomatology and overall impairment due to his mental health condition recorded in the January 2013 VA examination extends throughout the period on appeal prior to February 10, 2016. Accordingly, given that the evidence shows that the Veteran endorsed multiple symptoms either specifically contemplated by, or approximate to the symptoms set forth in, the 70 percent rating criteria of the General Rating Formula, resulting in deficiencies in most areas, the Board finds that the Veteran's PTSD warranted an initial 70 percent rating for the period on appeal prior to February 10, 2016. In finding that a 70 percent rating is warranted for the pendency of the appeal, the Board recognizes that although there was some fluctuation in the nature and severity of the Veteran's symptoms, and symptoms associated with lower disability ratings, overall, the evidence of record demonstrates that the type and extent, frequency and severity of the Veteran's symptoms have been relatively consistent prior to February 10, 2016, and more nearly approximates the criteria required for a 70 percent disability rating. 38 C.F.R. § 4.7. Additionally, the Board acknowledges the Veteran's assertion that he has experienced severe symptoms of his PTSD since filing for disability compensation and acknowledges his severe symptomology including his expression of suicidal ideation. Here, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record supports an initial disability rating of 70 percent prior to February 10, 2016. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.130. The Board finds that the evidence of record does not support a disability rating of 100 percent for the Veteran's psychiatric disability at any point during the period on appeal prior to February 10, 2016. The Board has also considered whether, at any time during the period on appeal, the Veteran's symptoms of PTSD more nearly approximated total social and occupational impairment, such that a 100 percent schedular rating is warranted. While the Veteran was unemployed during the period on appeal, the evidence does not suggest that the Veteran experienced total social impairment, and the record reflects that he was in receipt of a total disability based upon individual unemployability due to service-connected disability. Prior to February 2016, the record demonstrates the Veteran reported positive familial relationships with his wife and adult sons. The Veteran noted during his April 2013 VA annual check-up that his relationship with his wife had grown closer. Further, the Veteran reported that he experienced suicidal and homicidal thoughts. However, as the Veteran never expressed an intent or plan to harm himself or others, the evidence of record does not demonstrate the Veteran was a persistent danger of hurting himself or others. Additionally, the evidence of the Veteran's symptoms of PTSD did not show the Veteran's mental health disorder affected the Veteran's activities of daily living. Further, prior to February 2016, the record does not demonstrate the Veteran experienced symptoms of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Board acknowledges the Veteran's February 2016 VA examination found the Veteran's psychiatric disorders resulted in total social and occupational impairment. Moreover, the Board recognizes the Veteran's lost Vet Center PTSD counseling records creates a heightened responsibility to consider the applicability of the benefit of the doubt rule, and extend the evaluation of the Veteran's symptoms and overall impairment back into the period on appeal. See Russo, 9 Vet. App. at 51. The Board notes the Veteran's symptomatology and level of impairment demonstrated at the time of the February 2016 VA examination. However, the Board recognizes the Veteran's February 2016 VA emergency mental health triage record, noting the Veteran reported increased symptoms of PTSD and depression in the prior few weeks. Here, the Board finds the evidence of record shows the Veteran reported worsening symptoms which were accurately evaluated February 10, 2016 and no earlier. Thus, a 100 percent evaluation is not warranted at any point during the pendency of the appeal prior to February 10, 2016. See 38 C.F.R. § 4.130. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against a rating in excess of 70 percent disabling, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to special monthly compensation (SMC) based on housebound status Pursuant to the Court's order, the Board must address the Veteran's claim to SMC under 38 U.S.C. § 1114(s). VA must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). The special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent, and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he or she is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The requirement of "permanently housebound" will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. Id. Entitlement to a total disability rating based on individual unemployability (TDIU) may serve as the "total" rating for the purposes of special monthly compensation under § 1114(s) rate if the TDIU is predicated upon a single disability. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Further, TDIU based on multiple service-connected disabilities that are considered as "one disability" under 38 C.F.R. § 4.16(a) (for example, disabilities affecting a single body system or common etiology) may not be used to establish "a service-connected disability rated as total" for SMC housebound eligibility pursuant to § 1114(s). Youngblood v. Wilkie, 31 Vet. App. 412, 416-18 (2019). For the period on appeal, the Veteran has a 20 percent disability rating for the amputation of the distal phalanx index, middle, and ring fingers of his right hand; 20 percent disability rating for the amputation of the distal phalanx index, middle, and ring fingers of his left hand; and, as found above, 70 percent disability rating for PTSD, rated as adjustment disorder with mixed anxiety and depressed mood. VA has assigned a TDIU, due to the Veteran's traumatic amputation of multiple fingers on both hands and the Veteran's associated mental health disorder, effective October 29, 2012 to February 9, 2016. Since February 10, 2016, the Veteran has a 100 percent disability rating for his psychiatric disorder. Accordingly, for the period on appeal prior to February 10, 2016, the Veteran does not meet the statutory requirements for SMC at the housebound rate as he does not have a single service-connected disability rated as 100 percent. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); Bradley, 22 Vet. App. at 290-93; Youngblood, 31 Vet. App. at 416-18. Although the Veteran has a 100 percent rating due to his TDIU, the TDIU is not predicated on one disability. Additionally, since February 10, 2016, the Veteran does not meet the statutory requirements for SMC at the housebound rate as he does not have a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i). Moreover, there is no evidence or assertion suggesting that, during the period on appeal, the Veteran was substantially confined as a direct result of his service-connected disabilities to his dwelling and the immediate premises. Rather, the VA medical records reflect that he has been able to seek treatment at VA facilities and attend VA examinations. The evidence does not show that the Veteran was permanently housebound by reason of his service-connected disabilities at any point during the period on appeal. Thus, the record does not reflect that SMC housebound is warranted under the schedular criteria or based on the evidence of record. See 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350(i). Accordingly, the Board finds that entitlement to SMC based on housebound status under 38 U.S.C. § 1114(s) is not for consideration. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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