Citation Nr: 21069838 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-46 023A DATE: November 19, 2021 ORDER Entitlement to a 10 percent initial evaluation, but no higher, for service-connected hypertension is granted, subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to service connection for residuals of multiple ischemic strokes is granted. REMANDED Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran's service-connected hypertension has been manifested by blood pressure tests showing systolic blood pressure predominantly 160 or more throughout the appeal period, but without diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more. 2. The most probative evidence is approximately in equipoise concerning whether multiple ischemic strokes were caused by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent evaluation, but no higher, for service-connected hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, DC 7101. 2. The criteria to establish service connection for residuals of multiple ischemic strokes are met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1944 to May 1946, including a period as a Prisoner of War in Germany from January 23, 2045, to March 6, 1945. This matter comes to the Board of Veterans' Appeals (Board) from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In January 2021, the Veteran and his caretaker participated in a Board hearing conducted by the undersigned Veterans Law Judge via videoconferencing equipment. A transcript of this hearing is associated with the record. At the January 2021 hearing, the Veteran asserted that the functional impairment associated with his service-connected hypertension caused him to lose his job. As such, the issue of entitlement to a TDIU has been raised by the record in context with the appealed issue seeking an increased evaluation, and thus, the former is considered part and parcel of the latter. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran's appeal was previously before the Board in April 2021, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. Clarification of the issues on appeal As noted by the Board in the April 2021 remand, the Veteran testified at the January 2021 Board hearing that he experiences "stroke-like symptoms" if he does not strictly follow the medication regimen prescribed for his service-connected hypertension. Noting the possible downstream implications of this assertion, to include extraschedular consideration of the Veteran's appeal seeking an increased evaluation and/or inferring a separate claim to establish service connection for stroke residuals secondary to service-connected hypertension, the Board requested medical opinions concerning the nature and etiology of any disability accounting for the Veteran's reported symptoms. As will be detailed below, the Board finds that the evidence obtained by the AOJ consequent to the Board's April 2021 remand is approximately in equipoise concerning whether the Veteran's multiple ischemic strokes were caused by his service-connected hypertension. The AOJ adjudicated this claim in the first instance in a February 2021 rating decision, albeit under a different theory of entitlement, and the Veteran has not initiated an appeal; however, the United States Court of Appeals for Veterans Claims (Court) held in Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) that VA's duty to maximize benefits requires it to exhaust all schedular alternatives for rating a disability, including exploring claims brought under the theory of secondary service connection, before the extraschedular analysis under 38 C.F.R. § 3.321 (b) (1) is triggered. In view of the holding in Morgan, the AOJ's adjudication of this claim in the first instance, and the Board's fully favorable disposition of such, which will be discussed below, the Board concludes that the issue of entitlement to service connection for residuals of residuals of multiple ischemic strokes is properly before the Board as part and parcel of his appealed issue seeking an increased evaluation for his service-connected hypertension. The Veteran is not prejudiced by the Board's findings regarding this matter. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 1. Entitlement to an initial compensable evaluation for service-connected hypertension Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's service-connected hypertension is currently rated noncompensably (zero percent) disabling under 38 C.F.R. § 4.104, Diagnostic 7101. Under Diagnostic 7101, a 10 percent evaluation is warranted where diastolic blood pressure is predominantly 100 or more, or systolic blood pressure is predominantly 160 or more, or when an individual with a history of diastolic blood pressure predominantly 100 or more requires continuous medication for control. A 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more. A 40 percent evaluation is warranted where diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted where diastolic blood pressure is predominantly 130 or more. 38 C.F.R. § 4.104. Analysis This appealed issue stems from a claim to establish service connection for this disability that was received by the AOJ on May 31, 2017. Accordingly, the appeal period is from May 31, 2017, to the present. The Veteran asserts that the manifestations of his service-connected hypertension most closely approximate the criteria for a compensable initial evaluation under VA's Rating Schedule. The record shows that hypertension initially manifested nearly 70 years ago, and the Veteran's extensive treatment regimen for this disability has included many medication prescriptions and changes. VA and private treatment records reflect that his blood pressure readings have been monitored closely, as the combination of prescription medications have, at times, not been as effective as desired by his physicians. To the above point, while blood pressure testing at the August 2017 and July 2021 VA examinations did not show systolic and/or diastolic readings meeting or approximating the criteria for a compensable initial evaluation, the Veteran's VA and private treatment records reflect many instances of systolic blood pressure predominantly 160 or more prior to and throughout the appeal period. Specifically, the Veteran's systolic blood pressure readings were notably greater than 160 throughout March, April, June, and August 2018, at the August 2021 VA stroke examination, and consistently "in the 190s/90s (mm/Hg) throughout early-2021. The crux of the Veteran's appealed issue is whether the demonstrated diastolic and/or systolic pressure readings throughout the appeal period predominantly meeting or closely approximate the criteria for a compensable initial evaluation under Diagnostic Code 7101 during the appeal period. To this point, predominantly is defined as "being most frequent or common." Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/predominant (last visited April 28, 2021). In the context of Diagnostic Code 7101, this means "above a certain level more often than it was below it." Thompkins v. McDonald, No. 15-4128, 2016 U.S. App. Vet. Claims LEXIS 2013 (Dec. 29, 2016) (Greenberg, J.) (accepting this definition of predominant in the Board's decision and affirming based on the Board's application of the definition to the facts of that case); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Armed with the above, the Board concludes that the most probative evidence shows that the Veteran demonstrated pressure readings during the appeal period that meet the criteria of a 10 percent initial evaluation, but no higher, under Diagnostic Code 7101 throughout the entirety of the appeal period. More specifically, while the record includes instances where the Veteran demonstrated noncompensable blood pressure readings during the appeal period, his systolic blood pressure was predominantly (i.e., more often than not) 160 or more. To this extent, the Veteran's appeal is granted. The Board has considered whether an initial evaluation in excess of 10 percent is warranted for the Veteran's service-connected hypertension; however, the record does not reflect diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more. The Board acknowledges that the Veteran's blood pressure readings would undoubtedly be more elevated if not for the ameliorative impact of the two medications prescribed for treatment of this disease; however, the Court has firmly held that the Board may properly consider ameliorative effects of blood pressure medication in adjudicating claims for increased ratings for hypertension, because medication is specifically contemplated by Diagnostic Code 7101. McCarroll v. McDonald, 28 Vet. App. 267. 276-77 (2016). At the June 2021 hearing, the Veteran stated that a physician had conveyed to him that his service-connected hypertension had resulted in a "kidney disorder." Within 90 days of the June 2021 hearing, the Veteran submitted a medical record reflecting a physician's written statement that his "kidney function has mildly decreased most likely due to years of having high blood pressure." Noting that Diagnostic Code 7101 does not contemplate decreased kidney functioning, the Board concludes that this assertion and evidence raise the theory of entitlement to an increased rating on an extraschedular basis. However, the Court held in Morgan v. Wilkie, 31 Vet. App. 162 (2019), that VA's duty to maximize benefits requires it to exhaust all schedular alternatives for rating a disability, including exploring claims brought under the theory of secondary service connection, before the extraschedular analysis under 38 C.F.R. § 3.321 (b)(1) is triggered. This is a threshold analysis intended to ensure that VA has satisfied its duty to maximize benefits by examining all possible rating methods in search of the highest level of established schedular compensation before resorting to the extraschedular referral process something that is meant to be "exceptional." In sum, the most probative evidence that the Veteran's service-connected hypertension has been manifested by blood pressure tests showing systolic blood pressure predominantly 160 or more throughout the appeal period, but without diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more. Thus, the criteria for a 10 percent initial evaluation, but no higher, for service-connected hypertension is warranted. Lastly, the Board finds that the issue of an extraschedular rating has not been raised by the record and will not consider referral. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). 2. Entitlement to service connection for residuals of multiple ischemic strokes, to include as secondary to a service-connected disability Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Analysis As discussed in the Introduction, the Veteran asserts that he experienced several strokes which he contends were caused by his service-connected hypertension. For the reasons detailed below, the Board concludes that the most probative evidence is approximately in equipoise, and thus, service connection for residuals of multiple ischemic strokes is warranted. The Veteran's VA treatment records and reports of VA examinations completed in July 2021 and August 2021 confirm that he experienced several multifocal ischemic strokes prior to the appeal period, and the residuals of such, including left leg numbness, left-side weakness, slurred speech, and numbness of the left side of his face, continue to the present. Further, as discussed above, service connection for hypertension was established by the AOJ in the August 2017 rating decision, effective from May 31, 2017. Accordingly, elements (1) and (2) to establish service connection for residuals of ischemic strokes under the theory of secondary service connection are demonstrated, and the crux of the Veteran's appealed issue is whether the most probative evidence reflects that this disability and residuals was caused or aggravated by a service-connected disability. Consequent to the Board's April 2021 remand, this critical medical matter was posed to a VA examiner in July 2021, who, after a review of the file and examination of the Veteran, opined that the Veteran's multiple ischemic strokes and resulting residuals were caused by the Veteran's service-connected hypertension. As rationale, the VA examiner cited to the Veteran's extensive history of uncontrolled hypertension despite utilizing multiple prescription medications. The examiner also cited to the magnetic resonance imagining (MRI) test results confirming the Veteran's ischemic strokes and commented that such were likely the result of his hypertension because they were ischemic. The Board finds the July 2021 VA examiner's opinion to be highly probative of the matter forming the crux of the Veteran's appeal, as it is supported by cited medical principles and evidence from the Veteran's VA file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Bloom v. West, 12 Vet. App. 185, 187 (1999). It appears that the AOJ also found the favorable July 2021 opinion to be probative and adequate, as another VA examination was requested by the AOJ in August 2021 to obtain further details concerning the frequency, severity, and duration of the Veteran's stroke residuals, assumedly for the purpose of rating such. Despite the AOJ's specific requests for information regarding the functional impairment of the Veteran's stroke residuals, the August 2021 VA examiner, instead, opined that the such were less likely as not caused or aggravated by service-connected hypertension. As rationale, the August 2021 VA examiner noted that strokes were multifactorial, and while the Veteran's service-connected hypertension may have contributed to these strokes, it could not be stated this disability "could be isolated as the etiology" of the Veteran's strokes. In further support of this opinion, the August 2021 VA examiner also noted the Veteran's advanced age and his 70-year history of hypertension. The Board acknowledges and appreciates the August 2021 VA examiner's opinion and accompanying rationale; however, it appears that the rationale, which was stated rather equivocally, does not support the unfavorable conclusion that was ultimately reached. While this apparent inconsistency does not render the August 2021 VA opinion devoid of probative value, such is compromised to the extent that it outweighed by that afforded the favorable July 2021 VA opinion. Armed with the above, the Board concludes that the most probative evidence of record is approximately in equipoise concerning whether multiple ischemic strokes were caused by the Veteran's service-connected hypertension. Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). As such, service connection for residuals of multiple ischemic strokes is warranted. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The record for review unambiguously reflects that the Veteran's service-connected disabilities, particularly his posttraumatic stress disorder (PTSD), loss of use of both legs, bilateral hearing loss, and stroke residuals, negatively impacted his employability during the appeal period; however, as noted by the Board in the April 2021 remand, the Veteran's VA file includes inconsistent information concerning the Veteran's educational background and occupational history. Specifically, the Veteran's service records reflect that he completed the sixth grade; however, he reported to a June 1982 VA examiner that he completed the tenth grade. Further, the record reflects that the Veteran owned and operated a personal business into his mid-80's; however, the details concerning his employment history, to include his most recent employment, are not clear. As per the Board April 2021 remand directives, the AOJ provided the Veteran a VA Form 8940 and instructed him to complete and submit such to clarify the critical matter noted above. Unfortunately, neither the Veteran nor his accredited representative responded to this request, and thus, the Board's ability to readjudicate this appealed issue is frustrated by a lack of information necessary to do so. The critical nature of verifying these matters is noted by the applicable regulations and the United States Court of Appeals for Veterans' Claims (Court), with the latter holding that an appellant's failure to provide a completed copy of this Form or the equivalent information may constitute abandonment of the TDIU appeal. 38 C.F.R. § 3.158; Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Alternatively, due to the Veteran's failure to fully cooperate, the Board may have no alternative but to adjudicate the claim simply based on the evidence currently of record. In view of the Board's allowance of service-connected connection for residuals of multiple ischemic strokes and the negative impact that such have on his employability, the Board concludes that readjudication of this issue on the record currently for review would be premature, as such (partly or in full) may even be rendered moot by implementation of the Board's allowance. Accordingly, the Board concludes that another remand is necessary to afford the Veteran an opportunity to provide VA with accurate information concerning his employment status throughout the appeal period. He is encouraged to cooperate with the AOJ's efforts and engage his accredited representative in furtherance of completing the Board's remand directives. The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *The AOJ must inform the Veteran that his failure to accurately complete the provided VA Form 8940 may result in the denial of his TDIU appeal due to abandonment of the same. 38 C.F.R. § 3.158; Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). The Veteran should be further informed that his failure to fully cooperate may result in the Board having to adjudicate the claim simply based on the evidence currently of record. 2. The AOJ must request the Veteran to verify his personal income from May 31, 2017, to the present, to include the submission of Internal Revenue Service (IRS) W-2 Forms, tax returns, and/or pay stubs. *The Veteran is encouraged to comply with the AOJ's efforts to determine his income from May 31, 2017, to the present, as his failure to do so may result in VA's inability to grant the benefits that he is seeking. 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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