Citation Nr: 21075362 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-18 724A DATE: December 20, 2021 ORDER From October 1, 2012 to December 16, 2016, entitlement to a 40 percent rating, but no higher, for prostate cancer in remission manifested by a voiding dysfunction with urinary leakage, for substitution purposes, is granted, subject to the laws and regulations governing the payment of monetary benefits. From December 16, 2016 to June 15, 2017, entitlement to a 60 percent rating, but no higher, for prostate cancer in remission manifested by a voiding dysfunction with urinary leakage, for substitution purposes, is granted, subject to the laws and regulations governing the payment of monetary benefits. From June 15, 2017, entitlement to a rating in excess of 60 percent for prostate cancer in remission, for substitution purposes, is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), for substitution purposes, is denied. FINDINGS OF FACT 1. There is no evidence of recurrence or metastasis of the Veteran's prostate cancer from October 1, 2012. 2. Prior to December 16, 2016, the Veteran's prostate cancer was in remission and had been manifested by, at worst, wearing of absorbent materials that had to be changed two times per day, urinary frequency of, at worst, a daytime voiding interval between one and two hours, and nighttime awakening to void at least four times, and obstructive voiding which had been repaired in November 2008. 3. From December 16, 2016 to June 15, 2017, the Veteran's prostate cancer was in remission and had been manifested by, at worst, wearing of absorbent materials that had to be changed more than four times per day, and urinary frequency of at worst, a daytime voiding interval between one and two hours, and nighttime awakening to void at least four times. 4. For the period prior to October 1, 2012, the Veteran's prostate cancer had been rated at 100 percent effective November 21, 2008. 5. The Veteran's service-connected disabilities did not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. From October 1, 2012 to December 14, 2016, the criteria for a 40 percent rating, but no higher, for prostate cancer, status post prostatectomy with a voiding dysfunction, for substitution purposes, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, 4.115b, Diagnostic Code 7528. 2. From December 14, 2016 to June 15, 2017, the criteria for a 60 percent rating, but no higher, for prostate cancer status post prostatectomy with a voiding dysfunction, for substitution purposes, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, 4.115b, Diagnostic Code 7528. 3. From June 15, 2017, the criteria for a rating in excess of 60 percent for prostate cancer status post prostatectomy with a voiding dysfunction, for the purposes of substitution, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, 4.115b, Diagnostic Code 7528. 4. The criteria for entitlement to a TDIU, for the purposes of substitution, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from May 1970 to May 1973, and from August 1979 to July 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in July 2012. In November 2017, VA was notified of the Veteran's death. In December 2017, the Board dismissed the Veteran's claim of entitlement to a rating in excess of 20 percent for post-operative residuals of prostate cancer due to the death of the Veteran. In November 2017, the Veteran's spouse filed a request for substitution, which was granted in May 2018. See May 2018 Correspondence. Following the grant of substitution, these matters were returned to the Board for further appellate action, at which time the Board remanded the matter to the AOJ for additional development. On remand, and in a June 2019 rating decision, the AOJ granted a 60 percent rating for prostate cancer, status post radical prostatectomy effective June 15, 2017. Because the increase in evaluation of the Veteran's prostate cancer did not represent the maximum evaluation available for the condition, the claim remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). These issues were returned to the Board for further appellate action in February 2021 and September 2021. In the September 2021 remand, the Board noted that the Veteran had also filed a timely notice of disagreement with the issue of the propriety of the reduction in rating for prostate cancer, status post prostatectomy, from 100 percent to 20 percent, effective October 1, 2012. The Board remanded the claim, directing the AOJ to furnish the appellant a fully responsive statement of the case (SOC) relating to the propriety of the reduction in this case. The issue was to be returned to the Board for appellate review, if the appellant perfected a timely appeal. The requested SOC was issued in October 2021, and the record does not yet contain a substantive appeal. As such, the Board will not address this matter at this time. This case has now been returned to the Board for further appellate action on the other issues before the Board. 1. Entitlement to a rating in excess of 20 percent for prostate cancer prior to June 15, 2017 and in excess of 60 percent from that date Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). Although the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. Resolving all reasonable doubt in favor of the appellant, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that prior to December 15, 2016, a 40 percent rating, but no higher, is warranted for the Veteran's prostate cancer, status post radical prostatectomy, for substitution purposes; and from December 15, 2016, a 60 percent rating, but no higher, is warranted for the Veteran's prostate cancer, for substitution purposes. The Veteran's prostate cancer in remission with urinary incontinence, status post radical prostatectomy is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528, which provides ratings for malignant neoplasms of the genitourinary system. Diagnostic Code 7528 provides a 100 percent rating for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b. Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedures, the 100 percent rating shall continue with a mandatory VA examination at the expiration of six months; and any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the residuals should be rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. In this case, the Veteran's predominant symptoms of his residuals of his prostate cancer, status post prostatectomy, were most similar to those in the criteria for voiding dysfunction. See 38 C.F.R. § 4.20. Voiding dysfunctions are to be rated with regard to urine leakage, frequency, or obstructive voiding. See 38 C.F.R. § 4.115a. With regards to urine leakage, a 20 percent rating is warranted when the wearing of absorbent materials is required and when the absorbent materials must be changed less than two times per day. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials that must be changed two to four times per day. A 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. With regards to urinary frequency, a 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening to void three to four times per night; and a 40 percent rating is warranted for daytime voiding interval less than one hour or awakening to void five or more times per night. With regards to obstructed voiding, a 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. The Board has considered and relied, in part, on lay testimony and statements of record regarding the severity of the Veteran's prostate cancer in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran and his spouse are competent to report on factual matters of which they had firsthand knowledge and their statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where they have not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Veteran's spouse has asserted that the symptoms of the Veteran's prostate cancer, status post prostatectomy, included occasional pain, inability to completely empty his bladder, and leakage during the day and at night. See January 2014 Lay Statement. The Veteran's spouse testified that the Veteran had to change his absorbent materials five to six times a day. She testified that he only had obstructed voiding one time after the surgery, and he underwent a second surgical procedure to correct it and since then, the Veteran had not had any urinary obstruction. See June 2017 Hearing Transcript. In June 2011, the Veteran reported that due to his prostate cancer, status post radical prostatectomy he had symptoms of urinary leakage and incontinence, which did not require a pad or absorbent material, urinary frequency of ten times a day at intervals of two hours, and nocturia four times a night at intervals of two hours. The Veteran also reported a history of obstructive voiding without a urinary tract infection (UTI). The Veteran also reported symptoms of fatigue, lower abdominal pain, lethargy and weakness. In August 2011, the Veteran reported that he had intermittent urinary leakage with incontinence which required the use of a pad that had to be changed one to two times a day. The Veteran also reported a history of obstructive voiding without a urinary tract infection (UTI), and symptoms of pain with urination, hesitancy and difficulty starting a stream and dribbling. Prior to December 15, 2016, the medical evidence of record reflects that the Veteran had a voiding dysfunction due to his prostate cancer, status post radical prostatectomy, which caused the Veteran to have at worst urine leakage requiring absorbent material that was changed less than two times per day; and urinary frequency with a daytime voiding interval between one and two hours, and nighttime awakening to void at least four times. See June 2011 VA examination (no use of absorbent materials); March 2014 private examination (one pad per day); December 2014 private treatment record (two pads per day). But see August 2021 VA opinion (urinary incontinence was not related to prostate cancer). From December 15, 2016, the medical evidence of record reflects that the Veteran had a voiding dysfunction due to his prostate cancer, status post radical prostatectomy, which caused the Veteran to have at worst urine leakage requiring absorbent material that was changed more than four times per day; and urinary frequency with a daytime voiding interval between one and two hours, and nighttime awakening to void at least four times. See December 2016 VA examination (urine leakage requiring absorbent material that was changed more than four times per day); January 2017 private treatment record (constant use of pull-ups); June 2017 private examination (five to six pads per day). Throughout the period on appeal, the medical evidence of record reflects that the Veteran had a voiding dysfunction with urinary frequency of at worst, a daytime voiding interval between one and two hours, and nighttime awakening to void at least four times. See June 2011 VA examination (daytime voiding every two hours, voiding four times per night); March 2014 private examination (voiding two times per night); December 2016 VA examination (daytime voiding between one and two hours). Throughout the period on appeal, the medical evidence of record indicates that the Veteran had obstructive voiding which had been repaired in November 2008. As noted, November 2008 private treatment records indicate that the Veteran had an episode of a bladder neck contracture, with difficulty voiding and he underwent a cystourethroscopy and transurethral incision of the bladder neck in November 2008. In February 2017, the Veteran's spouse testified that the Veteran had one episode of obstructive voiding which had been repaired in a surgical procedure. In June 2011, a VA examiner noted that the Veteran had a history of obstructive voiding with dysuria, hesitancy, difficulty starting a stream, a weak or intermittent stream, straining to urinate, and hematuria and dribbling without UTI's. In a March 2014 private examination, the treatment provider reported that the Veteran reported post void dribbling. Finally, in December 2014, a private treatment record reflected that the Veteran reported having a slow stream with urinary straining. Based on the foregoing, the Board finds that the Veteran's prostate cancer warrants a 40 percent rating, but no higher, prior to December 15, 2016 based upon the December 2014 private treatment record, which reflects that the Veteran had to wear absorbent pads that had to be changed two times a day. In addition, the Board finds that the Veteran's prostate cancer warrants a 60 percent rating effective December 15, 2016, based upon the December 2016 VA examination and June 2017 private examination, which reflected that due to urinary leakage, the Veteran had to wear absorbent materials that had to be changed more than four times per day. The Board notes that the Veteran's voiding dysfunction does not warrant additional separate ratings based upon the frequency of his urination or urinary obstruction, as it would constitute impermissible pyramiding. Resolving all reasonable doubt in favor the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's prostate cancer prior to December 15, 2016; and a 60 percent rating is warranted for the Veteran's prostate cancer after that date. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a TDIU After a review of the evidence and for reasons set forth below, the Board finds that the Veteran's service-connected disabilities have not precluded him from engaging in substantially gainful employment. On July 5, 2011, the Veteran filed an initial formal application for entitlement to a TDIU. He reported that in October 2008, his disability had affected his full-time employment, and he became too disabled to work. He indicated that he worked as an accounts payable clerk from June 1997 to July 2007, and the most that he had ever earned in one year was $32,742 in 2007. He indicated that his highest level of education was 4 years of college. The Veteran did not indicate which of his disabilities had rendered him unemployable. In July 2011, a private treatment provider noted that the Veteran reported that in 2007 his work of 10 years had been outsourced, which resulted in his retirement. In December 2011, the Veteran clarified in another formal application that his service-connected prostate cancer prevented him from securing or following a substantially gainful occupation. See also October 2011 Correspondence. He also indicated that the most that he had ever earned in one year was $28,000 in July 2007 as an accounts receivable and payable clerk. See also May 2012 Formal TDIU Application In April 2012, a VA examiner noted that the Veteran reported that he obtained his bachelor's degree while in service. He reported that he worked for one employer after separation from service, and he lost his job when it was outsourced. The Veteran reported that he had been looking for work since then. See also December 2016 VA examination. In August 2011, VA obtained employment verification, which indicated that the Veteran had been employed from July 1997 to August 2007, and noted that he earned $32,742.76 in 2007, $38,794.01 in 2006 and $38,284.67 in 2005. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. VA will grant a TDIU when the service-connected disabilities are rated less than total, but the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. As a preliminary matter, for TDIU consideration, the Veteran must meet the disability rating percentage threshold. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a), (b). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16(a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. For the purposes of determining whether the schedular criteria for a TDIU have been met, disabilities of common etiology will be considered a single disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period from one year earlier than the date of the initial TDIU application (July 5, 2010) to October 1, 2012, the Veteran had a combined disability rating of 100 percent, for his service-connected disabilities with a 100 percent schedular rating for prostate cancer, and noncompensable (0 percent) ratings for erectile dysfunction and an anterior trunk scar; and an additional 30 percent rating for an acquired psychiatric disorder from November 18, 2011. Based upon the current Board's decision, the Veteran now has a combined disability rating of 60 percent from October 1, 2012 for his service-connected disabilities with a 40 percent rating for prostate cancer; a combined disability rating of 70 percent from October 20, 2016 including an increased 50 percent rating for an acquired psychiatric disorder; and a combined disability rating of 80 percent from December 16, 2016 including an increased 60 percent rating for prostate cancer. The Board finds that the Veteran has met the schedular criteria under 38 C.F.R. § 4.16(a) from October 20, 2016. As noted for the appeal period prior to October 1, 2012, the Veteran has had a combined disability rating of 100 percent for his service-connected disabilities. Although the Veteran has been in receipt of a combined 100 percent rating for this period, a 100 percent disability rating does not necessarily render the issue of entitlement to a TDIU moot. In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Bradley, 22 Vet. App. at 293-94. Under Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See id. Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Here, for the period prior to October 1, 2012, in which the Veteran is in receipt of a 100 percent combined schedular rating, he was not in receipt of special monthly compensation under 38 U.S.C. § 1114(s). Thus, Bradley and Buie are applicable from November 21, 2008 to October 1, 2012 as there are potentially additional benefits to award except. For the period prior to October 1, 2012, the Veteran's service-connected prostate cancer was rated at a 100 percent schedular disability rating, and the Veteran's other service-connected disabilities during that period included erectile dysfunction and an anterior trunk scar with noncompensable ratings, and from November 2011, an acquired psychiatric disorder with a 30 percent rating are not shown to meet the criteria for an award of SMC. There are no additional disabilities which combine to 60 percent and there is no competent and credible evidence that a service-connected disability other than the Veteran's prostate cancer rendered the Veteran unemployable. As such, entitlement to a TDIU must be denied for this period. In regard to the period from October 1, 2012 to October 20, 2016, the Board finds that the Veteran did not meet the schedular criteria under 38 C.F.R. § 4.16(a). When these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation due to service-connected disability or disabilities, the case must be submitted to the Director, Compensation and Pension Service (VA Director of Compensation), for consideration of extraschedular TDIU. 38 C.F.R. § 4.16(b). While the Board does not have authority to grant a TDIU on an extraschedular basis in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of Compensation for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b). Based on the evidence as set forth below, the Board finds that consideration of an extraschedular TDIU by the VA Director of Compensation is not warranted in this case, because a preponderance of the evidence shows that the Veteran was not unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. In regard to the period from October 1, 2012, the Board finds that the evidence of record indicates that the Veteran's prostate cancer, status post prostatectomy and its residuals did not prevent the Veteran's ability to retain and maintain gainful employment. In August 2011, a VA examiner opined that the Veteran's prostate cancer, status post-surgery with residual scar, stress urinary incontinence and erectile dysfunction, did not impact his ability to work, and did not affect his usual occupation. See also April 2012, December 2016 VA Examinations. In March 2014, a private examiner noted that the Veteran's prostate cancer with incontinence impacted his ability to work. In April 2012, a VA examiner opined that the Veteran's psychiatric disorder resulted in occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, and conversation. In December 2016, a VA examiner opined that the Veteran's psychiatric disorder resulted in occupational impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. VA obtained a retrospective opinion in May 2019. The examiner opined that it was less likely than not that the residuals of the Veteran's service-connected prostate cancer, either singularly or in concert, were sufficient to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. The examiner noted that the Veteran had prostate cancer which was treated with surgical intervention with residual voiding dysfunction (nocturia, incontinence), which had been noted on a prior examination in 2017. The examiner noted that the records did not indicate that the Veteran had been on any medication for the residuals of his prostate cancer. The examiner noted that in terms of functional impairment due to the residuals of the Veteran's prostate cancer, the voiding dysfunction with incontinence would have required that the Veteran worked in proximity to a restroom. The examiner opined that the residuals of the Veteran's prostate cancer would not have impacted sedentary employment or jobs requiring light physical labor. The examiner opined that the residual voiding dysfunction would not have impacted the Veteran's ability to walk, sit, or stand, and would not have had any impact on the Veteran's memory, concentration or social interaction. VA obtained an addendum opinion in June 2021, from an April 2021 VA examiner. The examiner opined that due to the Veteran's incompetency, which was related to his prostate cancer residuals, his occupational status, included an impaired ability to interact socially, which could have interfered with the Veteran's ability to perform job duties. VA obtained an addendum opinion in August 2021 from the April 2021 VA examiner. Specifically, VA noted that the VA examiner's June 2021 statement regarding the Veteran's certified incompetency being related to the Veteran's prostate cancer was not supported by the evidence of record which showed the Veteran's incompetency to have been due to his diagnosed Lewy Body dementia which was not a service-connected condition. In addition, the examiner did not address the Veteran's other service-connected conditions and the limitations or impairments those conditions caused in regard to his employability. In August 2021, the VA examiner noted that there was no documentation of urinary incontinence related to prostate cancer. In addition, the examiner noted that the Veteran's disabilities that were service connected did not show any functional impairment; and opined that the Veteran did not have any functional impairment related to the Veteran's service-connected disabilities. Based on the evidence as outlined above, the Veteran's service-connected disabilities have not precluded him from engaging in substantially gainful employment. The preponderance of the evidence establishes that the Veteran stopped working in July 2007, due to outsourcing of his position. The Veteran was not diagnosed with prostate cancer until August 2008. There is no probative evidence to support a finding that the Veteran stopped working due to his service-connected disabilities. Further, the Board notes that the Veteran's residuals of prostate cancer, status post prostatectomy and the Veteran's psychiatric disorder did not render the Veteran unemployable from October 1, 2012. The preponderance of the evidence establishes that the Veteran's urinary leakage due to his prostate cancer had some impact on his ability to work, in that the Veteran would have had to have worked near a bathroom and would have needed to use the bathroom at least every two hours. However, there is no evidence to support a finding that the Veteran's urinary leakage rendered the Veteran unemployable. In addition, although the April 2012 and December 2016 VA examiner's opined that the Veteran's psychiatric disorder had some impact on the Veteran's ability to work, there was no evidence to support a finding that the Veteran's psychiatric disorder rendered him unemployable even in combination with his other service-connected disabilities. Finally, although the evidence of record indicates that the Veteran's dementia rendered him unemployable, the evidence does not support a finding that the Veteran's dementia was related to service or to his service-connected disabilities. In determining whether a TDIU is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert, supra. In this case, the preponderance of the evidence is against a finding that entitlement to a TDIU is warranted in this case and the claim is denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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