Citation Nr: 21006347 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-16 263 DATE: February 3, 2021 ISSUE Entitlement to service connection for esophageal cancer. ORDER Entitlement to service connection for esophageal cancer is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The evidence for and the evidence against the Veteran's claim of entitlement to service connection for esophageal cancer is in relative equipoise. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the Veteran's esophageal cancer was incurred in active service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board is cognizant, that the Veteran has a separate appeal stream pertaining to claims for entitlement to increased ratings for (1) degenerative arthritis of the lumbar spine with IVDS, spondylolisthesis (claimed as low back condition), (2) left leg radiculopathy and (3) right leg radiculopathy. The RO has not yet certified these claims to the Board. As such, the Board will not address these matters herein. Further, the Board notes that since the issuance of the statement of the case (SSOC) in November 2017 the Veteran has submitted additional evidence, namely research articles, that have been associated with the Veteran's claims file. The Veteran did not submit a waiver of Agency of Original Jurisdiction (AOJ) review; however, as the Form 9 concerning this appeal was received after February 2, 2013, a waiver is not required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial RO review of evidence submitted to the RO or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the RO initially review such evidence). The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on medical and lay evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to service connection for esophageal cancer. The Veteran contends that he developed esophageal cancer from exposure to radiation and/or asbestos as part of his routine duties during service as an engine mechanic. With respect to asbestos, the Veteran specifically contends that as a seaman aboard the USS Sperry AS-12 (commissioned in the 1940’), he was exposed to asbestos that resulted in his current esophageal cancer. See October 23, 2020, Informal Hearing Presentation, pgs. 1-3. The Board notes that the Veteran’s military occupational specialty (MOS) was an engine mechanic. See May 11, 2015 Form 9; see also, DD-214. The focus of the Board’s discussion will be on the Veteran’s contention that he was exposed to asbestos during service. With respect to this contention, as will be discussed below, the Board finds that the evidence for and against the Veteran's claim of entitlement to service connection for esophageal cancer is at least in equipoise. As the Board is granting service connection on this basis, it unnecessary to address any other theory of entitlement advanced. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107(2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board finds that the first element of service connection for esophageal cancer under Shedden is met. The Veteran was diagnosed with adenocarcinoma of the gastroesophageal junction in 2009. See May 11, 2009 Treatment Record (Texas Oncology); See also July 2012 Esophageal Conditions examination, pg. 1; November 2017 Esophageal Conditions examination, pg. 1. The Board finds that the second element of service connection under Shedden is also met. The Veteran's military personnel records, specifically his DD 214, confirm that he was aboard the USS Sperry and served as an engine mechanic; in light of his in-service duties, the Board has conceded asbestos exposure. Therefore, the Board finds the Veteran's statements to be credible regarding an in-service injury. See DD-214. See also March 2016 and March 2017 Lay correspondence re: Veteran’s duties re: engine room, deck flooring, walls, doors, etc. The critical issue in this case is whether there is a “nexus” between the Veteran’s esophageal cancer and his conceded exposure to asbestos during service. During the course of this appeal, the Veteran has been afforded VA examinations in July 2012 and November 2017 to determine the nature and etiology of his esophageal cancer. The Veteran has also submitted statements and opinions from his treating physicians regarding the etiology of his current disability. The Board is also cognizant that the Veteran has also submitted research articles that draw a link between asbestos exposure and esophageal cancer. The Board will begin its discussion with the Veteran’s July 2012 Esophageal Conditions Examination. In the July 2012 examination, the VA examiner reviewed the Veteran’s claims file and medical history and concluded that the Veteran’s esophageal cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that National Institutes of Health concluded the following: "Some studies have found an association between asbestos exposure and esophageal cancer, but the overall results of epidemiologic studies are mixed. In addition, what little evidence there is from animal experiments about asbestos's carcinogenic potential specifically on esophageal tissues does not support biological activity at this site. On the basis of those observations, the committee concluded that the evidence is inadequate to infer the presence or absence of a causal relationship between asbestos exposure and esophageal cancer. The known risk factors differ somewhat for the two major histologic types of esophageal cancer. Known risk factors for squamous-cell carcinoma include all forms of tobacco-smoking (cigarettes, cigars, pipes, and bidis) use of chewing or snuff, and excessive consumption of alcohol. The combination of tobacco use and alcohol consumption potentiates the risk of either factor alone causes strongest studies. Factors known to increase the risk of adenocarcinoma include chronic esophageal reflux (regurgitation of stomach acid and bile through the lower esophageal sphincter into the lower esophagus), obesity (which contributes to reflux), smoking, and achalasia (a type of esophageal dysfunction). Asbestos: Selected Cancers. Institute of Medicine (US) Committee on Asbestos: Selected Health Effects. Washington (DC): National Academies Press (US); 2006. In addition, the International Epidemiology Institute States: "Tobacco and alcohol consumption are the primary of squamous cell carcinomas of the esophagus. The causes of esophageal adenocarcinoma are not well known; thus, reasons for the increasing incidence are not clear. Tobacco smoking has now been established as a risk factor, but there appears to be little link to alcohol consumption. One of the emerging risk factors, however, is obesity. Increases in the prevalence of obesity and the incidence of esophageal adenocarcinoma are parallel, and several epidemiologic have shown upwards of threefold excess risks among overweight individuals. (Seminar in Oncology 1999, OCT 26). Therefore, it is this providers opinion that the bulk of medical evidence does not support the contention that asbestos has a causal link to esophageal cancer. However, the Veteran did have the known risk factor of smoking and therefore, the Veterans esophageal cancer is not as likely as not due to or caused by asbestos exposure in military service.” See July 2012 Esophageal Conditions examination, pgs. 5-6. The Board finds this July 2012 examination probative because it involved a review of the Veteran’s claims file, included a review of the Veteran’s medical history, incorporating his contentions and provided a sound medical reason for concluding against service connection, citing to pertinent medical and scientific research. The Veteran submitted three statements from his treating physicians who indicated that there may be a relationship between the Veteran’s Navy service and his current disability. The first physician indicated that the Veteran was seen in March 2009 for a routine wellness exam. The Veteran related a history suspicious for dysphagia but was not experiencing symptoms suggestive of acid reflux disease. The Veteran underwent an extensive upper GI workup that revealed him to have a lesion at the gastroesophageal junction that was histologically determined to be an adenocarcinoma. He subsequently underwent chemoradiation followed by surgical resection of his cancer. The physician stated that the Veteran’s case is “somewhat unusual on several fronts. His ethnicity would suggest that he would have been more likely to have developed squamous cell carcinoma instead of adenocarcinoma. He was also asymptomatic with regard to symptoms suggesting acid reflux disease which often leads to the development Barrett’s esophagitis and in some cases adenocarcinoma. I think it is of interest that the Veteran was in the US. Navy from 1972-1975. During that time, he had asbestos exposure and possibly radiation exposure of uncertain intensity. Some studies have found an association between asbestos exposure and esophageal cancer. Ongoing studies should provide more information regarding this causal relationship.” See June 23, 2015 Correspondence, T.H.B., M.D. The Board notes that this physician did not render an opinion with regards to the etiology of this Veteran’s esophageal cancer. Hence, the Board finds this physician statement probative for the limited purpose of indicating that there may be an association between the Veteran’s esophageal cancer and his military service, noting that some studies have found an association between asbestos exposure and esophageal cancer. The Board is also cognizant the physician noted that the Veteran’s case is somewhat unusual on several fronts: His ethnicity would suggest that he would have been more likely to have developed squamous cell carcinoma instead of adenocarcinoma. The Veteran submitted a second statement from a treating physician regarding the etiology of his esophageal cancer. This physician rendered a nexus opinion. The physician stated that the Veteran was referred to me in April of 2009 by his primary care physician, Dr. T.B. The Veteran had been experiencing some difficulty swallowing solid foods. Dr. B. requested a Barium Swallow study which showed a mass in the distal esophagus. I performed an endoscopy and the pathology report was consistent with adenocarcinoma. Though the Veteran was a smoker for a number of years, he had not smoked for more than eleven years when diagnosed with esophageal cancer. He informed me that he was exposed to asbestos while in the Navy. The physician concluded that there “may possibly be a relationship with his developing the esophageal Cancer and his asbestos exposure.” See March 25, 2016 Correspondence, Dr. H.B. In this case, while this physician statement is rendered by the Veteran’s treating physician, the Board assigns no probative value to this nexus opinion with respect to the adjudication of this service connection claim. The physician's statement that there may possibly be a relationship with his developing the esophageal cancer and his asbestos exposure is too speculative in nature and cannot provide a basis for service connection. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. See Bostain, 11 Vet. App. 127-28, quoting Obert, 5 Vet. App. 33, (finding that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); Morris, 13 Vet. App. 97 (finding that a diagnosis that the appellant was "possibly" suffering from schizophrenia was deemed speculative). Therefore, as noted above, the Board affords no probative weight to the above physician’s nexus opinion. The Veteran also submitted a third statement and nexus opinion from his treating oncologist who indicated that he had been participating in the Veteran’s care since April 2009. The treating oncologist indicated that the Veteran was previously healthy and was diagnosed with adenocarcinoma of the gastroesophageal junction. The oncologist stated that “when mesothelioma cancer strikes the lower portion of the esophagus, it affects the glandular tissue rather than the lining and is a form of adenocarcinoma. After consulting with the Veteran, we found that there may be a connection between his esophageal cancer diagnosis and his possible exposure to asbestos while on his tour of duty in the U. S. Navy. Asbestos fibers in the body generally cause scarring which is a characteristic of esophageal cancer caused by accidental ingestion of caustic substances. The Veteran was exposed to asbestos while working as an engineman onboard the USS Sperry-AS 12 naval ship during the 1970’s. Research shows asbestos was very prevalent onboard naval ships at that time and that the latency period from being exposed to asbestos varies from 10 to 45 years or more between first exposure and the development of an asbestos related disease. Though the Veteran was a smoker for many years, he had not smoked for over eleven years before his cancer diagnoses. The Veteran’s cancer diagnosis is consistent with that of-asbestos exposure, and the latency period from being exposed therefore concluding a connection between his esophageal cancer diagnosis and his United States Navy tour of duty.” See March 10, 2017, Medical treatment record. (J.R.O, M.D.) The Board observes that while the treating oncologist used speculative language in the beginning section of this nexus opinion, when taken as a whole, the physician rendered an opinion that the Board finds probative with regards to the etiology of this Veteran’s esophageal cancer. The oncologist stated that the Veteran’s cancer diagnosis is consistent with that of-asbestos exposure, and the latency period from being exposed therefore concluding a connection between his esophageal cancer diagnosis and his United States Navy tour of duty. Additionally, the Board finds that the oncologist’s opinion and rationale adequate for adjudication purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board observes that the oncologist noted that asbestos fibers in the body generally cause scarring which is a characteristic of esophageal cancer caused by accidental ingestion of caustic substances. The oncologist further explained that although the Veteran was a smoker for many years, he had not smoked for over eleven years before his cancer diagnosis. The oncologist also referenced research (without citation) that the latency period from being exposed to asbestos varies from 10 to 45 years or more between first exposure and the development of an asbestos related disease. (*The Board notes that that this statement is later supported by the November 2017 VA examiner). Competent medical evidence is 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. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Continuing our discussion of the evidence of record: The Veteran was afforded a November 2017 Esophageal Conditions examination. The examiner reviewed the Veteran’s medical history, previous examination of record as well as the correspondence and opinions from the Veteran’s private physicians. The examiner rendered a negative nexus opinion. The examiner explained that "For most of the twentieth century, SCC comprised the vast majority of esophageal cancers globally [111]. For the past three decades, however, the frequency of adenocarcinoma of the esophagus, esophagogastric junction (EGJ) and gastric cardia has increased dramatically... a history of smoking, a body mass index higher than the lowest quartile, gastroesophageal reflux disease, and a diet that was low in fruits and vegetables accounted for almost 80 percent of cases of esophageal adenocarcinoma in the United States." Asbestos exposure is not notated as a risk factor for the development of esophageal cancer. The National Academies Press publication "Esophageal Cancer and Asbestos", 2006 states "Some studies have found an association between asbestos exposure and esophageal cancer, but the overall results of epidemiologic studies are mixed. In addition, what little evidence there is from animal experiments about asbestos's carcinogenic potential specifically on esophageal tissues does not support biological activity at this site. On the basis of those observations, the committee concluded that the evidence is inadequate to infer the presence or absence of a causal relationship between asbestos exposure and esophageal cancer." Data from the American Cancer Society, World Health Organization, and OSHA provide no additional evidence to support a causal association between asbestos exposure and the development of esophageal cancer based on available studies to date. Specifically addressing the statements provided by private doctors involved in the Veteran’s care, no definitive, literature-based opinions are provided to support a causal association between asbestos exposure and esophageal cancer. Ongoing studies should provide more information regarding this causal relationship." This is not inconsistent with the determination by the National Academies Press that the available evidence is inadequate to establish causality between asbestos exposure and esophageal cancer. -- Dr. J. O. states "After consulting with the Veteran we found that there may be a connection between his esophageal cancer diagnosis and his possible exposure to asbestos while on his tour of duty in the U.S Navy... the latency period from being exposed to asbestos varies from 10 to 45 years or more... the Veteran’ cancer diagnosis is consistent with that of asbestos exposure, and the latency period from being exposed therefore concluding a connection between his esophageal cancer diagnosis and his United States Navy tour of duty." The natural history of asbestos related disease in presenting decades after exposure is well established in the medical literature. As such, the Veteran’s diagnosis of esophageal cancer in 2009 (over thirty years after separation from service), does fall within the expansive time frame during which asbestos related disease may manifest. The temporal association between remote exposure and disease alone, however, is not a substitute for establishing causality. Dr. J. O's reference to esophageal mesothelioma as a form of adenocarcinoma is not referenced with medical literature and is not supported by the pathology findings of this case which were negative for evidence of mesothelioma. -- Dr. H. B. states "There may possibly be a relationship with his developing the Esophageal Cancer and his asbestos exposure." No definitive opinion is made in this statement that would support the current claim. See November 2017 Esophageal Conditions examination, pgs. 1, 3-4; See also November 2017, Medical Opinion, pg. 1. The Board finds this medical opinion probative because it involved a review of the Veteran’s claims file, including a review of the Veteran’s medical history and contentions. The Board observes that the medical opinion also addressed each of the physician statements and nexus opinions of record and cited to pertinent scientific research. Notwithstanding, the Board observes that the November 2017 VA examiner did indicate that the Veteran’s diagnosis of esophageal cancer in 2009 (over thirty years after separation from service), does fall within the expansive time frame during which asbestos related disease may manifest. The examiner noted that the temporal association between remote and disease alone, however, is not a substitute for establishing causality. In addition, the Board observes that the November 2017 VA examiner did not directly counter the statement from the Veteran’s treating oncologist that the Veteran’s cancer diagnosis is consistent with that of asbestos exposure, and that asbestos fibers in the body generally cause scarring which is a characteristic of esophageal cancer caused by accidental ingestion of caustic substances. See March 10, 2017 Correspondence, (J.R.O., M.D.) The Board is also cognizant the Veteran and his representative submitted research literature that draws an association between esophageal cancer and asbestos exposure: See the following: (1) Institute of Medicine, Occupational Exposures and Risk of Esophageal Cancer by Histological Type: a Case-Control Study in Eastern Spain, Occupational and Environmental Medicine (Nov. 2008); (2) Offerman’s et. al., Occupational Asbestos Exposure and Risk of Esophageal, Gastric and Colorectal Cancer in the Prospective Netherlands Cohort Study, International Journal of Cancer (2014); and (3) Li, B. and Tang, S.P., Esophagus Cancer and Occupational Exposure to Asbestos: results from a meta-analysis of epidemiology studies, Diseases of the Esophagus (July 2016). See also, October 23, 2020 Informal Hearing Presentation, pgs. 2-3. The Board observes that this research literature was not referenced in the July 2012 VA Esophageal examination. Nor was this literature referenced in the November 2017 Esophageal VA examination. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds that the nexus opinion from the Veteran’s treating oncologist, who opined that the Veteran’s cancer diagnosis is consistent with that of asbestos exposure (which was supported by adequate rationale), when taken together with the research literature submitted on behalf of the Veteran (which draws an association between esophageal cancer and asbestos exposure), is equally probative to the July 2012 and November 2017 VA Esophageal Condition examinations. With regards to the Veteran’s history of smoking, the Veteran’s treating oncologist explained that although the Veteran was a smoker for many years, he had not smoked for over eleven years before his cancer diagnosis. The Board also reiterates that the November 2017 VA examiner did indicate that that the Veteran’s diagnosis of esophageal cancer in 2009 (over thirty years after separation from service), does fall within the expansive time frame during which asbestos related disease may manifest. See November 2017 Esophageal Conditions examination, pgs. 4. For the reasons stated above, the Board finds that the evidence for and the evidence against the Veteran's claim of entitlement to service connection for esophageal cancer is at relative equipoise. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107(2012); 38 C.F.R. §§ 3.102, 4.3 (2018). Accordingly, the Board finds that a grant of service connection for esophageal cancer is warranted. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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