Citation Nr: 21074503 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-18 279 DATE: December 15, 2021 ORDER Entitlement to service connection for right elbow medial epicondylitis is denied. Entitlement to service connection for an ulcer disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for right knee joint osteoarthritis and patellofemoral pain syndrome is remanded. Entitlement to service connection for an intestinal neoplasm, claimed as colon cancer, is remanded. Entitlement to service connection for a liver abscess, claimed as liver disease, is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right elbow medial epicondylitis began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran does not have a current diagnosis of an ulcer disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right elbow medial epicondylitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for an ulcer disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1995 to October 1999. The Veteran has also served during various periods of ACDUTRA and INACTUDRA, with Reserve service and National Guard service beginning in August 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2013, February 2014, and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a Board of Veteran's Appeals (Board) hearing before a Veterans Law Judge (VLJ). In October 2020, the Veteran and his representative were notified that the VLJ was no longer employed by the Board, and the Veteran was afforded the opportunity to participate in another Board hearing. No response was received by the Board within 30 days of the letter, and the Board proceeded with the Veteran's claims. In January 2021, the Board remanded the Veteran's claims for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for right elbow medial epicondylitis The Veteran claims that he has a right elbow disability which originated during his active-duty service. In the June 2020 Board hearing, the Veteran stated that his right elbow disability originated during his service due to a fall during a ruck march, and that he did not seek treatment due to his stubbornness. The Veteran was given time to submit evidence supporting this assertion, but no opinion suggesting an association between service and the current elbow condition was submitted. The Board also notes that, while the Veteran had annual duty training in August 2013, there was no noted injury in the Veteran's duty training records. The available evidence of record supports the finding of an injury occurring outside of the Veteran's duty for training period. Treatment records note that the Veteran's right elbow disability originated in August 2013 due to a training injury with free weights. Based on the Veteran's contradicted assertion, the January 2021 Board remand noted that the Veteran is not an accurate historian, which resulted in a finding of reduced credibility. VA treatment records show the Veteran was not diagnosed with right elbow medial epicondylitis until August 2013, years after his separation from active duty service. Further, VA treatment records indicate that the Veteran first experienced the symptoms associated with his diagnosed right elbow medial epicondylitis in 2013 after a weight-lifting injury. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran was afforded a VA examination in August 2021. The examiner reviewed the Veteran's records and determined that July 2013 was the onset of the Veteran's disability based on his own self-reports. Following the examination, the examiner found that the Veteran's disability was less likely as not due to his military service. The examiner stated that "elbow medial epicondylitis outside service dates: a very clear note from occupational therapist states his symptoms started one year ago; therefore 2013." The Board has also reviewed the Veteran's medical history. After a review of these records, the Board finds that the Veteran's records are silent for a medical opinion that attributes his elbow disability to a period of military service. After a review of the Veteran's claims file the Board has found no in-service event, injury, or disease that has caused the Veteran to develop a right elbow disability. In addition, the Veteran's post-service medical history contains no competent medical opinions that demonstrates that his present disability is related to his military service. Lastly, the Board notes that the August 2013 VA examiner carefully reviewed the Veteran's claims file and could not find any evidence that the Veteran suffered an in-service injury that caused him to develop his right elbow disability and found that the Veteran's disability was less likely as not due to his military service. The Board has considered the Veteran's contentions; however, the Veteran has not been able to identify a specific date in which his injury occurred on duty and his contentions are outweighed by the VA examiner's opinion because the examiner has the training and experience to provide a medical opinion that addresses the etiology of the Veteran's disability. For the above-stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and entitlement to service connection for a right elbow disability is not warranted. 2. Entitlement to service connection for an ulcer disability The Veteran was afforded a VA examination in August 2021. During the VA examination, the Veteran was noted as not having a current ulcer disability. The Board further notes that the Veteran's VA treatment records are also silent for a diagnosis of an ulcer. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In sum, the Board finds that entitlement to service connection for an ulcer is not warranted. After a review of the record, the Board finds that the record is silent for a diagnosis of a current disability throughout the pendency of the appeal. Specifically, the Board notes that the most probative evidence of record was the Veteran's August 2021 VA examination which did not show evidence of a current ulcer. Accordingly, the Board notes that in the absence of proof of a present disability, there can be no valid claim. To the extent that the Veteran has indicated that he currently has an ulcer disability, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's assertions made during the course of his claim for VA benefits. Moreover, as the question of diagnosis and causation extends beyond an immediately observable cause-and-effect relationship, he is not competent to render a diagnosis or address etiology in the present case. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, whether the Veteran currently has an ulcer, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As the medical evidence of record does not show that the Veteran has a current disability, the Board finds that the preponderance of the evidence is against the claim for service connection for an ulcer. Therefore, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), is remanded. In August 2021, the Veteran attended a VA psychiatric examination. Following the examination, the examiner found that the Veteran did not meet the criteria for PTSD. The Board notes that the examination report includes the Veteran's confirmed non-combat stressors, but the examiner simply dismissed these events as accidents. In addition, the Board notes that the Veteran's VA treatment records show a history of a diagnosis for PTSD, but the examiner's opinion did not address whether this diagnosis was in error or if this disorder had subsided. Accordingly, the Board finds that a remand is necessary in order to obtain a well-reasoned medical opinion to ensure that a subjective and not an objective standard is applied to the analysis regarding the nature and etiology of the Veteran's claim for post-traumatic stress disorder. 2. Entitlement to service connection for right knee joint osteoarthritis and patellofemoral pain syndrome is remanded. In August 2021, the Veteran attended a VA examination for this issue. The examiner found that the Veteran's right knee disability was less likely as not due to his military service. The examiner did not provide a thorough and well-reasoned opinion in his discussion regarding the nature and etiology of the Veteran's right knee disorder. Moreover, the examiner did not address the April 2017 electronic correspondence from Dr. V. P. reflects that the Veteran has "right knee pain secondary to cartilage loss from a service-connected injury. Accordingly, the Board finds this opinion to be inadequate and a remand is necessary to obtain a thorough and well-reasoned opinion that addresses the nature and etiology of the Veteran's right knee disorder. 3. Entitlement to service connection for an intestinal neoplasm, claimed as colon cancer, is remanded. 4. Entitlement to service connection for a liver abscess, claimed as liver disease, is remanded. In August 2021, the Veteran attended a VA examination regarding his colon cancer and his liver disease. Following the examination, the examiner found that the Veteran's liver disease was in remission and did not provide a thorough analysis that addressed the Veteran's contention that his colon cancer and liver disease originated due to exposure to hazardous materials during his active-duty service. Moreover, as to the Veteran's claim for colon cancer, the examiner simply opined that there is no way to service connect his colon cancer without resorting to speculation. Accordingly, the Board finds this examination to be inadequate and a remand is necessary in order to obtain thorough and well-reasoned medical opinions that address the nature and etiology of these disorders. 5. Entitlement to service connection for obstructive sleep apnea is remanded. In August 2021, the Veteran attended a VA examination for this issue. The examiner found that the Veteran's sleep apnea was less likely as not due to his military service. The examiner stated that obesity was the cause of his sleep apnea. The Board acknowledges that while obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service injury or disease for service connection purposes, obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 32 Vet. App. at 306-7. Thus, the Board finds the August 2021 VA opinion to be inadequate because the examiner did not discuss any relationship between the Veteran's obesity and his service-connected disability. Accordingly, the Board finds that a remand is necessary in order to obtain a thorough and well-reasoned opinion that addresses the nature and etiology of the Veteran's disability. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from October 1, 2021 to the present. 2. Schedule the Veteran for a VA psychiatric examination with a new examiner to determine the nature and etiology of any diagnosed psychiatric disabilities. After a review of the claims file and an examination of the Veteran, the examiner should provide answers to the following questions: a. Does the Veteran have a current psychiatric disability to include PTSD? If any previously diagnosed disorder is no longer present, please provide an explanation (e.g., whether the condition was misdiagnosed, whether it dissipated, etc.). If the Veteran does not meet the criteria for a diagnosis of any acquired psychiatric disorder to include PTSD the examiner must specifically say so. b. As to each current psychiatric disorder, is it at least as likely as not that (50 percent or greater probability) the psychiatric disability manifested in or is otherwise related to the Veteran's military service? c. Is it as least as likely as not (50 percent or greater probability) that a current acquired psychiatric disorder had its onset within one year of the Veteran's discharge from active duty? d. Is it as least as likely as not (50 percent or greater probability) that any of the Veteran's diagnosed psychiatric disabilities are caused or aggravated (i.e., permanently worsened) by any of his service-connected disabilities? A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. If available, the August 2021 knee disability VA examiner should provide an addendum nexus opinion with an adequate rationale to substantiate his opinion, notably the VA examiner must address whether the right knee disability was caused or aggravated by his service-connected left knee disability. However, if he is unavailable, the Veteran should be afforded a new VA examination with a new VA examiner with appropriate expertise to determine the nature and etiology of the Veteran's diagnosed right knee disability. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The Veteran's claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his diagnosed right knee disability was caused by, or was aggravated by, his service-connected left knee disability. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. If available, the August 2021 intestinal disability VA examiner should provide an addendum nexus opinion with an adequate rationale to substantiate his opinion. However, if he is unavailable, the Veteran should be afforded a new VA examination with a new VA examiner with appropriate expertise to determine the nature and etiology of the Veteran's diagnosed intestinal neoplasm. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The Veteran's claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that intestinal neoplasm originated during, or is etiologically related to, active-duty service, to include due to exposure to hazardous materials. The examiner is also asked to note whether the disability originated during a period of ACDUTRA or INACDUTRA service. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. The examiner must specifically address the Veteran's contention that this disability is related to his exposure to hazardous materials when he was assigned to the hazardous materials locker on board his ship. 5. If available, the August 2021 liver disability VA examiner should provide an addendum nexus opinion with an adequate rationale to substantiate his opinion. However, if he is unavailable, the Veteran should be afforded a new VA examination with a new VA examiner with appropriate expertise to determine the nature and etiology of the Veteran's diagnosed liver abscess. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The Veteran's claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his diagnosed liver abscess originated during, or is etiologically related to, active-duty service, to include due to exposure to hazardous materials. The examiner is also asked to note whether the disability originated during a period of ACDUTRA or INACDUTRA service. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. The examiner must specifically address the Veteran's contention that this disability is related to his exposure to hazardous materials when he was assigned to the hazardous materials locker on board his ship. 6. If available, the August 2021 sleep apnea VA examiner should provide an addendum nexus opinion with an adequate rationale to substantiate his opinion. However, if he is unavailable, the Veteran should be afforded a new VA examination with a new VA examiner with appropriate expertise to determine the nature and etiology of the Veteran's diagnosed obstructive sleep apnea. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The Veteran's claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to: a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his diagnosed sleep apnea originated during, or is etiologically related to, active-duty service, to include his periods of ACDUTRA and INACDUTRA service. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his diagnosed sleep apnea was caused by, or aggravated by, his service-connected disabilities. The examiner must provide a complete rationale for all proffered opinions. In doing so, the examiner must consider whether the Veteran's service-connected disabilities caused him to become obese and became a substantial factor in causing or aggravating his obstructive sleep apnea. If the Veteran is determined to have developed obesity due to his service-connected disabilities, then the examiner should discuss whether the sleep apnea would have occurred or worsened but for such obesity. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide an explanation as to why speculation is required. (Continued on the next page) A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael L. Rescan Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED