Citation Nr: 21071008 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 12-04 750 DATE: November 29, 2021 ORDER Entitlement to a rating greater than 10 percent for limitation of flexion of the right knee is denied. Entitlement to a compensable rating for limitation of extension of the right knee is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is denied. FINDINGS OF FACT 1. Since July 26, 2012, the Veteran's flexion of the right knee is limited to 45 degrees. 2. Since July 26, 2012, the Veteran's extension of the right knee is limited to 5 degrees. 3. The preponderance of the probative evidence indicates that the Veteran functioned without the need for regular aid and attendance of another individual. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for limitation of flexion of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a compensable rating for limitation of extension of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5261. 3. The criteria for SMC based on the need for regular aid and attendance of another individual are not met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.350, 3.352, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to December 1979. These issues are on appeal to the Board of Veterans' Appeals (Board) from March 2014 and October 2013 rating decisions of the Department of Veterans Affairs Regional Office (RO) in Winston-Salem, North Carolina. These issues were previously before the Board, most recently in October 2020, when remanded for further development. The Board finds that the RO substantially complied with its remand order. Stegall v. West, 11 Vet. App. 268 (1998). In a February 2021 rating decision, the RO granted service connection for service connection for right and left hallux valgus with degenerative arthritis, each with a separate 10 percent rating effective July 26, 2012. Therefore, the issue of service connection for these disabilities are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). INCREASED RATING Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptoms for one condition is not duplicative of the symptoms of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter before the Board, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to an evaluation greater than 10 percent for limitation of flexion of the right knee is denied. 2. Entitlement to a compensable rating for limitation of extension of the right knee is denied. Due to a significant overlap of evidence, the claims for entitlement to increased ratings for right knee flexion and extension limitations are addressed together. The Veteran filed the claim in July 2012. The Veteran contends he experiences symptoms consistent with a higher evaluation. Alternatively, the Veteran contends additional functional loss due to pain should be considered. The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, DC 5260, for limitation of flexion of the leg. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. The Veteran's right knee disability is also rated separately under 38 C.F.R. § 4.71a, DC 5261, for limitation of extension of the leg. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 38 C.F.R. § 4.71a Plate II indicates that a full range of motion of the knee is 0 to 140 degrees. 0 degrees is full extension and 140 degrees is full flexion. The Board finds that the preponderance of the evidence is against a rating greater than 10 percent for limitation of flexion or a compensable rating for limitation of extension of the right knee. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, fatigue, weakness, and lack of endurance. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 10 degrees. In May 2011, A VA nurse reported that the Veteran's difficulty ambulating with cane within the previous six months. In July 2014, the Veteran reported to an emergency department VA doctor about chronic right knee pain but declined admission. A VA nurse assessed that the Veteran needed no assistance with activities of daily living. In December 2015, a VA neurologist examined the Veteran and noted a "slight" limp due to right knee pain and use of a cane. An August 2016 right knee x-ray interpreted as showing patellofemoral degenerative changes, which had "not significantly changed" since October 2010. In March 2018, the Veteran reported to a VA physician that back, knees, and headache pain affected activities of daily living. In April 2018, the Veteran underwent a VA examination. The examiner diagnosed "right knee chondromalacia patella w/prominent tibial tubercle" and "right knee limitation extension." The Veteran reported that the right knee gives away, pops, there is constant sharp pain and aching pain. He reported difficulty walking and was unable to squat. The Veteran did not report flareups. He reported an inability to stand or sit for long periods of time and he limited stair climbing and physical activity. Initial range of motion (ROM) testing of the right knee showed 5 to 75 degrees. There was pain causing functional loss on examination. A goniometer was used. There was evidence of pain on weightbearing, non-weightbearing, passive ROM. There was right knee crepitus. The left, undamaged, knee measurements were "all normal." The VA examiner did not offer an opinion about whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. The April 2018 VA examiner also noted a disturbance of locomotion and interference with standing. Right knee strength was "4/5." There was no muscle atrophy or ankylosis. The Veteran did not report a history of recurrent subluxation or instability and objective testing showed no joint instability. The Veteran reported constant cane use due to right knee pain. Diagnostic imaging of the right knee was "negative." The functional impact was that the right knee disability limited the Veteran's standing and walking to less than two to three hours a day. In May 2020, the Veteran reported to a VA physician that the right knee pain felt "bone-on-bone." The Veteran reported no physical therapy or any other intervention but did have a knee brace. Diagnostic imaging showed arthritis, but the Veteran declined any intervention at the visit. The Veteran reported taking medication as needed for pain, but that it did not work. In January 2021, the Veteran underwent a VA examination. The VA examiner diagnosed degenerative arthritis of both knees, "right knee chondromalacia patella w/prominent tibial tubercle," "right knee limitation extension," and "limitation of flexion of the right knee." The VA examiner remarked that the degenerative joint disease of the right knee was "a progression of the previous diagnosis, gradual degeneration of the joint over time." The VA examiner remarked that left knee degenerative joint disease was "a separate unrelated diagnosis" because "this is a different joint." The Veteran has not filed a claim for the left knee. The Veteran reported since onset that the right knee had gotten worse, increased pain and intensity, increased stiffness, pain with use of both knees, an antalgic gait, and had developed left knee pain overtime. The Veteran reported current symptoms of right knee pain, weakness, and loss of ROM and left knee pain intermittently. The Veteran reported no physical therapy or surgery but did take medication. The Veteran did not report flareups. The Veteran reported functional loss as right knee pain, difficulty walking, using a cane, loss of ROM, and weakness. Initial range of motion (ROM) testing of the right knee showed 0 to 50 degrees (out of a normal 0-140) of flexion and 50 to 0 degrees (out of a normal 140-0) of extension with pain noted on examination causing functional loss. A goniometer was used. There was "mild" tenderness to palpation along the entire knee. There was evidence of pain on weightbearing, non-weightbearing, passive ROM. There was right knee crepitus. The left knee was also tested. There was no additional loss of function or range of motion after three repetitions. The VA examiner found that with repeated use over time would limit the Veteran's right knee 0 to 45 degrees (out of a normal 0-140) of flexion and 45 to 0 degrees (out of a normal 140-0) of extension due to pain, fatigue, weakness, and lack of endurance. Knee strength was "4/5." There was no muscle atrophy or ankylosis. The Veteran did not report a history of recurrent subluxation or instability and objective testing showed "normal" joint stability. The Veteran reported regular cane use due to right knee pain. Diagnostic imaging showed degenerative changes of both knees with no acute fractures identified. The functional impact was difficulty with bending and increased pain with walking. The Board has also considered the other DCs pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Regarding DC 5256, there was no evidence of ankylosis. Regarding DC 5257, a review of the record did not show any medical evidence of recurrent subluxation or lateral instability. Recurrent means "returning or happening time after time." English v. Wilkie, 30 Vet. App. 347, 352-53 (2018); Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary (last visited Nov. 8, 2021). At the April 2018 VA examination, was the only recorded time that the Veteran had reported that the knee "gives away, pops." The Veteran also reported "constant sharp pain, aching pain," "difficulty walking," and an inability to squat. The April 2018 VA examiner found no history of recurrent subluxation or effusion or patellar instability and testing showed "normal" joint stability. In November 2014, October 2015, August 2016, June 2017, September 2018, and October 2019, the Veteran reported no falls within the previous 12 months. In October 2015 and October 2019, the Veteran reported worrying about falling and dizziness, but an increased risk of falling was also listed a side effect of the Veteran's antidepressant medications as recently as June 2020. The Veteran did use a cane but has never alleged nor does the medical evidence of record show a ligament tear, sprain, or surgical repair of any diagnosed condition involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon). Instead, as the Veteran reported, in December 2015 and May 2020, that the cane was for right knee pain, a manifestation of the knee disability already evaluated under other DCs. The Board accepts that this was the reason for the cane. Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 356 (1992). That the cane was for "right knee pain" was also the medical conclusion of the April 2018 VA examiner. The Board cannot, in making its decisions, assert its own medical opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board does not discredit the Veteran's one recorded instance that the knee "gives way, pops" but finds that there is not enough evidence to support a higher rating under DC 5257 than the Veteran already has without pyramiding. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. Regarding DCs 5258 and 5259, there was no evidence of dislocated or removal of semilunar cartilage. Regarding DC 5262, there was no evidence of impairment of tibia and fibula. Regarding DC 5263, there was no evidence of genu recurvatum. In conclusion, the Board finds that the preponderance of the evidence during the period on appeal is against the Veteran's claim for a rating greater than 10 percent for limitation of flexion of the right knee or a compensable rating for limitation of extension of the right knee. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The claims are denied. 3. Entitlement to special monthly compensation (SMC) based on aid and attendance is denied. The Veteran is service connected for mental, neurological, musculoskeletal, skin, and genitourinary disabilities. The disabilities were rated as 20 percent disabling between November 2006 and June 2007, 80 percent from June 2007 and October 2008. Since then, the combined rating has been 90 percent. A total disability rating based on individual unemployability has been in effect since June 2007. In September 2013, the Veteran filed a claim for SMC based on aid and attendance. An increased rate of compensation in the form of SMC is provided at the rates set forth in 38 U.S.C. § 1114 under certain circumstances as specified in that section. Relevant to this claim, SMC at the rate provided under 38 U.S.C. § 1114(l) is payable when a Veteran due to service-connected disability is permanently bedridden, blind or with visual acuity of 5/200 or less in both eyes or needs regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The Veteran does not assert, and the evidence does not indicate, being bedridden or blind. The following factors will be accorded consideration in determining whether the Veteran otherwise needs regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The personal functions that the Veteran is unable to perform should be considered in connection with the Veteran's entire condition. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance not that there is a constant need for aid and attendance. Id.; see also Turco v. Brown, 9 Vet. App. 222, 224 (1996). The relevant evidence in this matter consists of lay statements from the Veteran, December 2013, March 2015, April 2018, and January 2021 VA examination reports, an October 2013 private report, and July 2004 and June 2020 VA treatment records. A preponderance of this evidence indicates that the Veteran, despite mental, neurological, musculoskeletal, skin, and genitourinary disabilities, has functioned independently without the need of the regular aid and attendance of another individual. In April 2012, a doctor endorsed that the Veteran was able to eat food and manage finances independently, was not legally blind, and did not require nursing home care. In April 2013, a VA psychiatrist endorsed that the Veteran did not take any prescribed medication and was not interested in trying anything. In July 2014, the Veteran reported to a VA emergency department about chronic headaches and right knee pain but declined admission. A VA nurse assessed that the Veteran needed no assistance with activities of daily living. A March 2015 VA examination report showed no functional impact from male reproductive system conditions. An April 2018 VA examination showed that the functional impact was that the right knee disability limited the Veteran's standing and walking to less than two to three hours a day. A May 2018 VA examination report showed only a "mild" limitation of weight bearing from foot conditions. A January 2021 VA examination showed poor endurance with walking and standing, increased pain with use of feet due to hallux valgus and degenerative joint disease. The functional impact from the knee disabilities was difficulty with bending and increased pain with walking. During the appeal period, there are a few exceptions. In April 2011, the Veteran's doctor wrote a letter to say that the Veteran was incapable of serving on jury. "His problems include severe depression which impairs his ability to concentrate and focus on issues as well as history of brain injury with meaningful cognitive deficits which impair memory and ability to reason and understand." In April 2012, a doctor endorsed that the Veteran was not able to prepare meals, require medication management, and needed a driver. In April 2013, a VA psychiatrist endorsed that the Veteran had "total occupational and social impairment." On balance, however, the preponderance of the evidence of record demonstrates that the Veteran has been able to dress or undress himself, he was able to keep himself ordinarily clean and presentable, he did not require the frequent adjustment of any special prosthetic or orthopedic appliances, he was able to feed himself and he was able to attend to the wants of nature. The Veteran did not demonstrate physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to daily environment. The preponderance of the clinical evidence demonstrates that the Veteran has been able the Veteran was able to eat food and manage finances independently, was not legally blind, and did not require nursing home care. Competency is a legal determination as to whether a witness is qualified to make a statement. See 38 C.F.R. § 3.159(a)(1) (defining competent medical evidence) and 38 C.F.R. § 3.159(a)(2) (defining competent lay evidence). Credibility is a factual determination as to whether a witness's statements is worthy of belief. The weight or probative value of evidence is a factual determination as to the tendency of the evidence to establish what it is offered to prove. When determining the credibility of lay evidence, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is competent to offer lay evidence describing limitations associated with mental, neurological, musculoskeletal, skin, and genitourinary disabilities. What the Veteran describes is observable. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Veteran's impairments are well documented and severe enough to render the Veteran unemployable since 2006. However, on the narrow issue before the Board, an award of SMC cannot be granted. The medical evidence in treatment records provided by treating VA medical professionals over an eight-year period is more reliable on the question of whether the Veteran was so helpless as to need regular aid and attendance. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). This evidence is consistent, with rare exceptions, in indicating that service-connected mental, neurological, musculoskeletal, skin, and genitourinary disabilities did not render the Veteran incapable of functioning independently. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. (Continued on the next page) The Board places greater probative weight on the consistent clinical evidence of record which demonstrates the Veteran was not in need of the regular aid and attendance of another over the allegations from the Veteran. Although the Board cannot reject a claimant's statements merely because they are an interested party, the claimant's interest may affect the credibility of testimony. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Although the Veteran has alleged significant restrictions on his ability to independently perform his activities of daily living in filing this claim, the Veteran has also denied such severe restrictions when asked by his own care providers as noted above. Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 356 (1992). The Board gives more probative weight to the Veteran's statements to care providers while seeking treatment than the arguments made in support of this claim. For this reason, the preponderance of the probative evidence is against the claim to SMC. See Gilbert and Alemany, both supra. As the preponderance of the evidence is against the claim, the reasonable doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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