Citation Nr: 21071478 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-04 817 DATE: November 30, 2021 ORDER The petition to reopen the claim for service connection for congestive heart failure with dilated cardiomyopathy (previously "severe congestive heart failure") is allowed, the appeal is granted to that extent only. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for congestive heart failure with dilated cardiomyopathy is remanded. FINDINGS OF FACT 1. A May 2003 rating decision denied entitlement to service connection for severe congestive heart failure. The Veteran did not timely file a notice of disagreement as to the claim, and no new and material evidence was received during the appeal period as to the claim. 2. Evidence received subsequent to the May 2003 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for congestive heart failure. 3. The preponderance of the probative evidence of record is against finding that the Veteran has had a bilateral hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim. 4. The preponderance of the probative evidence is against finding that tinnitus began during active duty service or is otherwise related to an in-service injury or disease, including noise exposure. CONCLUSIONS OF LAW 1. The March 2003 rating decision, which denied entitlement to service connection for severe congestive heart failure is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104 and 20.1103 (2020). 2. New and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for severe congestive heart failure has been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for tinnitus are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1990 to January 1993, with subsequent reserve service from February 1993 to December 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). New and Material Evidence Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996). 1. The petition to reopen the claim for entitlement to service connection for severe congestive heart failure is allowed. The Veteran's claim for service connection for severe congestive heart failure was previously denied. In this regard, a March 2003 rating decision denied service connection for the disability based on a finding that there were no complaints, treatment, or findings for congestive heart failure or any heart disease during service or evidence linking a heart disorder to active duty. The Veteran did not timely file a notice of disagreement as to this determination, and no new and material evidence was received during the appeal period as to these issues. New evidence associated with the record since the March 2003 decision includes private medical records, a May 2017 VA examination and June 2017 opinion, lay statements at a June 2021 Board hearing, and a June 2021 private opinion. Among this new evidence, the Veteran has submitted evidence possibly linking his heart condition to inservice exposures during his service in South West Asia and at Ft. McClellan. A claim based on a new theory of entitlement is not a new claim but constitutes an application to reopen the previously denied claim. Ashford v. Brown, 10 Vet. App. 120 (1997). Thus, the Veteran is still required to submit new and material evidence as to this theory of entitlement. In support of the contentions related to Fort McClellan, the Veteran has submitted numerous internet articles, including one that relates toxins of PCB found at Ft. McClellan to those found in Agent Orange. Moreover, the Veteran has submitted a private opinion relating his heart condition to his exposures. The Board finds this new evidence provides sufficient evidence of a viable new theory of entitlement to meet the low threshold to reopen the claim. More specifically, this evidence relates to an unestablished element of an inservice injury of toxic exposures and could reasonably substantiate a claim for service connection for congestive heart failure. The credibility of this new evidence is assumed for new and material evidence purposes. Accordingly, the Board finds that new and material evidence has been received, and, thus, the claim for service connection is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served 90 days or more of active duty during a war period or after December 31, 1946, certain chronic disorders such as arthritis and neurological disorders are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 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). 2. Entitlement to service connection for bilateral hearing loss is denied. The Veteran submitted an intent to file in September 2016, and subsequently filed for service connection for bilateral hearing loss in January 2017. The claim was denied in a July 2017 rating decision. This appeal arises from disagreement with this decision. The Veteran contends that he has hearing loss due to inservice noise exposure including explosives and weapons. At his June 2021 Board hearing, he reported it is sometimes difficult for him to understand what people are saying. He also reported inservice noise exposure, including noise from jets taking off and noise while doing maintenance on his truck and driving trucks, as a consequence of his MOS (military operations specialty) of being a truck driver. While exposure to post-service noise was reported, the Veteran stated he wore protective ear equipment. The Board finds that the preponderance of the probative evidence is against a grant of service connection for a bilateral hearing loss disability as a bilateral hearing loss disability for VA purposes has not been documented at any time during the pendency of the claim. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran underwent a VA examination for this claim in March 2017. Results in Hertz from the March 2017 audiology examination are as follows Hertz: 500 Hz 1000Hz 2000Hz 3000Hz 4000Hz Average Right Ear 10 5 15 15 15 12 Left Ear 5 5 10 10 20 11 Speech audiometry revealed speech recognition ability of 98 percent in both his right and left ears. These audiometric test results do not document the presence of hearing loss for VA purposes as set out under 38 C.F.R. § 3.385. The Board has considered the Veteran's lay statements concerning his hearing loss in his ears, and he is competent to report his symptoms, such as trouble hearing people talking to him. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the objective measurements of hearing require interpretation of specialized testing, and they fall outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of severity. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the Board finds the results of the March 2017 VA audio examination are more probative than the Veteran's subjective diagnosis of hearing loss for VA purposes. Accordingly, the Board must predicate its determination on the basis of the audiology results of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, the claim is denied. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. As the preponderance of the evidence is against his claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for tinnitus is denied. The Veteran submitted an intent to file in September 2016, and subsequently filed for service connection for tinnitus in January 2017. The claim was denied in a July 2017 rating decision. This appeal arises from disagreement with the July 2017 rating decision. The Veteran's contentions for his tinnitus are similar to those for his hearing loss claim. He contends he has tinnitus due to inservice noise exposure, including explosives and weapons (August 2017 Notice of Disagreement), jet engines and servicing his truck during service (July 2021 Board hearing), and loud engine noises while driving his truck (July 2021 Board hearing). While there is evidence that the Veteran may have a current disability of tinnitus, the evidence is inconsistent. The Veteran denied a history of recurrent tinnitus at his March 2017 VA examination. When asked whether or not he had ringing in his ears at his July 2021 Board hearing, he replied, "[n]o. Not on a current basis." The Veteran is competent to testify to symptoms he experiences, including ringing in his ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, reading the evidence in a light most favorable to the Veteran, a current disability of tinnitus is established. The evidence indicates exposure to loud noises during service, as noted. The Veteran has described loud noises from weapons, explosives, jet engines, servicing his truck, and the exhaust while driving trucks during service. The Veteran is competent to describe observable symptomatology such as hearing loud noises. Id. Moreover, a notation on a September 1991 inservice audiogram reported he was "routinely exposed to hazardous noise." Accordingly, the Board finds the second Shedden element is also established for this claim. The issue on appeal revolves around the question of whether the current reports of ringing in the ears are related to the Veteran's inservice noise exposure. The Board finds that a service connection finding is unwarranted because a preponderance of the probative evidence is against the third Shedden element that the current tinnitus relates to the noise exposure he experienced during service. While in service, the Veteran continued to deny having or ever having had hearing loss and/or ear, nose, or throat trouble on reports of medical history in completed in April 1991, September 1991, October 1991 and August 1992. In September 1991 and August 1992, clinical examination of the ears was found to be normal. This is indicative of his tinnitus not having its onset during service, and that his service treatment records (STRs) do not indicate a chronic hearing disorder. While inservice examinations are not always dispositive, the Board finds that if the Veteran had experienced symptoms related to hearing or tinnitus, it would have been reasonable for him to have reported it during service or it would have been demonstrated in other service treatment records. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). Subsequently in May 2001 and May 2004 the Veteran denied hearing problems. The record indicates that the earliest dated medical evidence addressing the disorder is when the Veteran filed for service connection for the disorder. Id. While the record does not indicate complaints of treatment for tinnitus after service, it does indicate post-service treatment and diagnoses for other conditions, such as his cardiac condition discussed in the remand portion below. Id. The lack of contemporaneous complaints of tinnitus along with the denial of tinnitus at his March 2017 VA examination indicates that to the extent the Veteran had tinnitus, it was not recurrent or chronic. Accordingly, the Veteran did not have the characteristic manifestations sufficient to identify a chronic disease entity involving his ears, and service connection based on continuity is not available. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Moreover, the only medical opinion of record addressing the claim indicates that the diagnosed disorder is not related to service. The March 2017 VA examination report addressing hearing found the Veteran with normal hearing under VA guidelines. See 38 C.F.R. § 3.385. The examiner also found tinnitus unrelated to service. The examiner noted the absence of evidence showing tinnitus during service and the absence of any audiology treatment since service and the examination. The Board finds the opinion probative because it is explained with citation to facts in the record, is based on a review of the claims file, and is based on an examination and interview of the Veteran. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). While based heavily on the absence of notation, as discussed, the Board finds if there were a recurrent tinnitus problem, it would have been noted. Even after this examination, at his Board hearing, the Veteran denied having recurrent tinnitus. In assessing the question of medical nexus, the Board has considered the Veteran's statements. As noted earlier, he is competent to describe symptoms such as ringing in the ears. See Jandreau, supra. However, he is not a medical professional who is competent to determine matters such as etiology. The question of whether his tinnitus is etiologically related to service is a complex medical issue. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). For this reason, the weight of the VA opinion is more probative and weighs against his statements. Based on the foregoing evidence, the Board finds that the preponderance of the evidence of record weighs against the claim of entitlement to service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for congestive heart failure with dilated cardiomyopathy is remanded. Development is needed under the different theories of entitlement for this claim. The Veteran, through his representative, has reported that the onset of this condition was during reserves. However, a review of the record indicates service treatment records from the Veteran's reserve service have not been obtained. A remand is needed to obtain these potentially relevant records. Moreover, the Veteran has stated he thinks this condition may have resulted from his exposures at Ft. McClellan. A review of his military personnel file indicates the Veteran served at Ft. McClellan. Additionally, the Veteran has submitted literature suggesting the PCB's at Ft. McClellan are similar to those in Agent Orange, and may have detrimental effects, including causing a heart condition. Moreover, the Veteran has submitted a private opinion indicating his heart condition may be related to general exposures. The Board finds this evidence sufficient to trigger additional development, and a remand is needed for an addendum opinion to address this evidence. As to his theory of entitlement for Southwest Asia (SWA) service, the RO has already obtained a May 2017 Gulf War VA examination and a related May 2017 VA Heart Conditions examination for this claim. The June 2017 VA opinion (including the addendum) for this claim declines to give an etiology opinion as to whether the Veteran's heart condition is a consequence of an undiagnosed illness due to his active duty tour in SWA. While review of the Veteran's medical records from Hershey Medical center was noted and discussed, it does not appear the VA examiner reviewed the Veteran's extensive medical records from other medical facilities. Notably, medical records from November 1996 indicate the Veteran experienced chest discomfort while exerting himself during National Guard duty. Moreover, private medical records in the claims file noted that his heart condition is of an unknown etiology. Accordingly, a remand for an addendum opinion that addresses this pertinent evidence is needed. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Contact the appropriate service department/ agency to obtain any outstanding reserve service records unless it is determined that additional service treatment records do not exist or that any further efforts to obtain them would be futile. If such a determination is made, a formal finding that such records do not exist or that further efforts to obtain such records would be futile must be associated with the claims file, and the Veteran must be notified of such findings. 38 C.F.R. § 3.159(c) and (e). 3. Arrange for the claims file to be reviewed by a suitably qualified health care professional and request that they respond to the questions below. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion. After reviewing the record, the examiner is requested to provide the following opinion: (a.) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a congestive heart failure condition, or any heart condition, that had its onset during, or is otherwise related to service, to include his service at Ft. McClellan and/ or service in SWA? In providing this opinion, the Board directs the examiner's attention to the literature provided by the Veteran regarding the PCB contamination at Ft. McClellan and how it has led to heart conditions. This must be discussed in the opinion. As it relates to his SWA service, the opinion must also discuss the private medical records addressing the Veteran's heart condition, including the November 1996 record indicating he was experiencing chest discomfort during National Guard duty and whether his symptoms are indicative of an undiagnosed illness. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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