Citation Nr: 21006588 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-09 406 DATE: February 4, 2021 ORDER Entitlement to an initial 20 percent rating for left knee patellofemoral syndrome with shin splints (left leg disability) is granted. Entitlement to an initial 20 percent rating for right knee patellofemoral syndrome with shin splints (right leg disability) is granted. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine (back disability) prior to July 1, 2013, is denied. Entitlement to a 40 percent rating for a back disability from July 1, 2013, is granted. Entitlement to a rating in excess of 40 percent for a back disability from July 1, 2013, is denied. FINDINGS OF FACT 1. Throughout the appeal, the Veteran’s right leg disability was characterized by malunion of the tibia and fibula with moderate knee disability. 2. Throughout the appeal, the Veteran’s left leg disability was characterized by malunion of the tibia and fibula with moderate knee disability. 3. Prior to July 1, 2013, the Veteran’s back disability did not manifest in forward flexion limited to greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 4. From July 1, 2013, the Veteran’s back disability manifested in forward flexion limited to 30 degrees without ankylosis. 5. A November 2019 VA examination report does not show ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating for a left leg disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. 2. The criteria for an initial 20 percent rating for a right leg disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. 3. The criteria for a rating in excess of 10 percent for a back disability prior to July 1, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 4. The criteria for a 40 percent rating for a back disability from July 1, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 5. The criteria for a rating in excess of 40 percent from July 1, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Army from January 1987 to January 1990, from June 1991 to March 1992, from July 1992 to March 1993, and from October 1994 to October 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in August 2018. The transcript of that hearing has been associated with the record. In April 2019, the Board remanded the appeal for further evidentiary development. The remand directives were completed. Stegall v. West, 11 Vet. App. 268 (1998). Before this case was returned to the Board, the VLJ that presided over the August 2018 hearing retired. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707 (VLJs who conduct hearings must participate in making the final determination of the claim on appeal). The Veteran was notified in October 2020 that the VLJ was no longer employed by the Board and that he had a right to a new hearing if he requested a hearing within 30 days. In November 2020 correspondence, the Veteran indicated that he did not want a new hearing. As such, the Board will proceed to consider the appeal based on the evidence of record. In October 2020, the Veteran signed an appeals satisfaction notice indicating that he wished to withdraw his matters from appeal. However, he then submitted a signed hearing notice indicating that he wished the Board to review the evidence of record when adjudicating his claims. His representative also submitted an informal hearing brief presentation on his behalf. Accordingly, the Board finds that there was no effective withdrawal and will proceed with adjudication. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans’ Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. There is no indication in the record that the Veteran is unemployed, and he has not alleged unemployability. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claims for increased ratings. 1. Increased ratings for the bilateral legs The Veteran asserts that initial ratings in excess of 10 percent are warranted from November 1, 2011, the date that service connection was granted. The Veteran’s service-connected bilateral patellofemoral pain syndrome with shin splints is rated under Diagnostic Code (DC) 5262, pertaining to impairment of the tibia and fibula. 38 C.F.R. § 4.71a, DC 5262. Under that code, a 10 percent rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. Id. Words such as, "moderate" or "marked" are not defined by VA rating schedule. Therefore, the Board finds that a dictionary-based definition of these words is suitable. See Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003) (holding that in the absence of an express definition in a statute, words are presumptively intended to be given their ordinary meaning). Accordingly, "moderate" is defined as "limited in scope or effect . . . not seriously or permanently disabling or incapacitating." Webster's Third International Dictionary (1986) at 1451. "Marked" is defined as "distinctive . . . strongly pronounced . . . noticeable." Id. at 1383. At a July 2011 VA examination, the Veteran reported weakness, stiffness, swelling, giving way, lack of endurance, fatigability, and pain. He did not experience heat, redness, locking, deformity, tenderness, drainage, effusion, subluxation and dislocation. The Veteran reported experiencing flare-ups as often as twice a month and each time lasting for two weeks. He rated the severity level as a 6 out of 10. Flare-ups are precipitated by physical activity and alleviated by rest, naproxen, Motrin Mobic, Celecoxib, heat and cold treatment. During flare-ups he cannot run or walk upstairs without great difficulty. Examination of the tibia and fibula revealed tender tibial prominence bilaterally. There were no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. Examination of the knees revealed no locking pain, genu recurvatum, crepitus, or ankylosis. All stability testing was within normal limits. X-rays of the tibia and fibula were normal on the right and showed minimal bowing of mid tibia on the left. The Board notes that the ROM findings on examination were normal, but they are not adequate given that the examiner did not address additional functional impairment and loss, in terms of degrees, during flare-up and repeated use. In May 2013, the Veteran presented to physical therapy (PT) with right knee pain rated as a 6 out of 10. He also complained of weakness and swelling. ROM was “good.” Later in May 2013, the Veteran presented to PT with right knee symptoms including pain, catching, and locking. The examiner noted crepitus, patellar grind and quad apprehension. His right knee was stable. X-rays of his knee showed no evidence of fracture, dislocation, and mild osteoarthritis. An MRI showed mild discoid lateral meniscus, without tear. The Veteran underwent injections of lidocaine and Kenalog of his right knee. In June 2013, a PT note indicated that ROM of the right knee was within full limits. The Veteran exhibited a normal heel toe gait pattern. Strength of right knee was 4/5 versus the left knee which was 5/5. Patellar grind and McMurray’s tests were negative. There was slight tenderness along the medial joint line on the right. There was good patella mobility and slight lateral tracking of the patella. In July 2013, a PT note indicated that the Veteran rated pain as a 1 out of 10. His knee was feeling better except for a few twinges here and there. The examiner noted weakness contributing to decreased stability of the knee. Later in July 2013, the Veteran rated his pain as a 0 out of 10. He reported that his knee was feeling better and he could tell it was getting stronger. The Veteran requested to discontinue PT for the right knee. At his August 2018 Board hearing, the Veteran testified that he sought PT in 2013 because his pain had increased in severity to the point where he was out of work. He later clarified that he was out about three or four days during that two month period. He has since self-treated with a muscle relaxer and a knee brace. Currently, he reported pain, locking and swelling of the knees. His symptoms increased when he stood longer than 15 or 20 minutes. At a November 2019 VA knee and lower leg conditions examination, the examiner diagnosed patellofemoral pain syndrome bilaterally. The Veteran reported current symptoms of pain, discomfort, stiffness, and limited ROM especially walking upstairs. He treated with rest, ice and Meloxicam. The Veteran stated he had difficulty squatting, bending, and climbing a flight of stairs. Flare-ups of the knees occurred about monthly and were moderate to severe. They lasted about one week. The flare-ups were precipitated by walking upstairs, prolonged walking and standing. ROM testing revealed flexion limited to 90 degrees on the right, with pain at endpoint, and 85 degrees on the left, with pain beginning at 80 degrees. Pain noted on examination caused functional loss, limiting flexion. The Veteran was able to perform repetitive-use testing with at least three repetitions. On the right, there was no additional loss of function or ROM after three repetitions. On the left, pain reduced ROM to 80 degrees of flexion after three repetitions. There was evidence of pain with weightbearing. There was mild pain to palpation at the lateral and medial joint line. There was no evidence of crepitus. The examiner opined that pain would significantly limit functional ability with repeated use over a period of time or during flare-ups. In terms of ROM, this would reduce flexion to 85 degrees on the right and 75 degrees on the left. Muscle strength testing was normal. There was no ankylosis. There was no history of recurrent subluxation or lateral instability. Joint stability testing was normal. The Veteran occasionally used bilateral knee braces for knee pain. X-rays were negative for arthritis. Based on the foregoing, the Board finds that the lay and medical evidence of record more nearly approximates the criteria for a 20 percent rating throughout the appellate period. Throughout the appellate period, the Veteran has reported weakness, stiffness, swelling, lack of endurance, locking, and pain. He has reported frequent flare-ups of moderate to severe severity. The Veteran has received physical therapy and injections for the right knee, and has utilized bilateral knee braces. ROM testing revealed reduced flexion on November 2019 VA examination. Although ROM was full on July 2011 VA examination, the VA examiner opined that pain would have a functional impact on the Veteran’s ROM. Consequently, the Board finds that the Veteran’s patellofemoral pain syndrome with shin splints manifests in a moderate knee disability. However, the next higher, 40 percent rating is not appropriate because there is no showing of nonunion of the tibia and fibula. Moreover, the evidence weighs against a finding that a brace is required, as the Veteran testified that he purchased a brace without a prescription and that he only occasionally uses it. In addition, concerning application of DC 5260 and DC 5261 for limitation of flexion and extension, the symptoms of limitation of motion and pain are already considered in the ratings assigned for the Veteran’s disabilities under Diagnostic Code 5262. Moreover, even if the disabilities were alternatively rated under those codes, there is no evidence of flexion limited to 45 degrees or extension limited to 10 degrees to warrant compensable ratings. Again, the November 2019 VA examiner indicated that the Veteran would experience reduced range of motion of the knees during flare-ups and periods of repeated use, but that flexion would not be limited to 45 degrees or less; or, extension limited to 10 degrees. There is no evidence of ankylosis, recurrent subluxation or lateral instability, dislocated cartilage, removal cartilage, or genu recurvatum, to warrant application of DCs 5256, 5257, 5258, 5259, and 5263. In sum, the Board concludes that the evidence of record supports the assignment of 20 percent ratings, but no higher, for the Veteran’s right and left patellofemoral pain syndrome with shin splints. Accordingly, the Veteran’s claims for increased ratings are granted. 2. Increased ratings for the back The Veteran is currently assigned a 10 percent rating from November 1, 2011, and a 40 percent rating from November 1, 2019, under 38 C.F.R. § 4.71a, DC 5242. Under DC 5242, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or for the combined ROM of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. A 20 percent rating is warranted for forward flexion greater than 30 degrees but not greater than 60 degrees; or, for combined ROM not greater than 120 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Higher ratings are available for unfavorable ankylosis of the spine. At a July 2011 VA examination, the Veteran reported that he could walk two miles in 30 minutes. He reported pain, stiffness, fatigue, spasms, decreased motion, weakness, paresthesia and numbness. Moderate pain was located in the lower back and occurred constantly. The pain traveled down his legs. The pain can be exacerbated by physical activity and relieved by rest, Naproxen, Motrin, Mobic, Skelaxin, and Celecoxib. At the time of pain, he could function with medication. Flare-ups occurred periodically. During flare-ups, any physical activity caused pain. Treatment included physical therapy, medication, chiropractor, heat and cold treatment. The Veteran denied any incapacitation in the past 12 months. Physical examination revealed a normal posture and gait. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. The Veteran did not require any assistive device for ambulation. There was no evidence of radiating pain on movement. Muscle spasm was absent. There was tenderness at the right sacroiliac joint. The spinal contour is preserved, though tender. There was no guarding of movement. The examination did not reveal any weakness. Muscle tone and musculature were normal. Straight leg raising test was negative for radiculopathy. There was no ankylosis of the thoracolumbar spine. The examination for the lumbar and sacral spine revealed no sensory deficits. There was no lumbosacral motor weakness. The lower extremity reflexes were normal. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. The Board notes that the ROM findings were full in all planes, but they are not adequate given that the examiner did not address whether the Veteran had additional functional impairment and loss, in degrees, during periods of flare-ups and repeated use. On July 1, 2013, the Veteran presented for PT because his low back on the left side had been “super painful.” He reportedly saw a doctor and was put on a Medrol dose pack. Pain, rated as a 5 out of 10 in severity, was affecting sitting, walking, and driving. The Veteran was observed to have an antalgic gait and decreased strength. ROM testing could not be performed due to pain. Later in July, a PT note showed forward flexion limited to 30 degrees with pain, extension limited to 5 degrees, right and left side bending limited to 20 degrees, and right and left rotation limited 25 degrees. An August 2013 PT note showed forward flexion limited to 50 degrees, extension limited to 10 degrees, and right and left side bending limited to 20 degrees. A September 2013 PT note indicated that the Veteran continued to have low back stiffness and decreased left hamstring flexibility contributing to difficulties with prolonged sitting, forward bending and lifting. The Veteran responded well to physical therapy, and made improvements in pain level, abnormal range of motion and strength since beginning physical therapy. An October 2013 PT note indicated strength left lower extremity 5/5 throughout. ROM of L-spine was within full limits. The examiner noted that the Veteran met his rehabilitation goals. At the August 2018 Board hearing, the Veteran testified that in 2013 his back increased in severity to the point where he was out of work. He stated that after PT, he saw a chiropractor monthly to help maintain his existing ROM. The Veteran testified that he still had constant low back pain and experienced flare-ups. He reported he wore a back brace. At a November 1, 2019 VA examination, the Veteran reported pain, stiffness and limited ROM. He also reported intermittent numbness down legs though none currently. Treatment included rest, ice, Meloxicam, chiropractor and back brace intermittently. The Veteran stated he could not stand or sit for longer than 30 minutes. He could not lift anything over 40 pounds. Flare-ups were moderate to severe and lasted for one week to a month. Flare-ups were precipitated by exertion to the back (yard work, household activities or prolonged sitting). They were alleviated by rest, ice, Meloxicam and PT. On ROM testing, forward flexion was limited to 30 degrees, extension was limited to 5 degrees, right lateral flexion was limited to 10 degrees, left lateral flexion was limited to 15 degrees, and right and left lateral rotation were limited to 30 degrees. Pain was noted on examination in all planes except lateral rotation. There was no evidence of pain with weightbearing. There was objective evidence of tenderness or pain on palpation of the right lower back and paraspinal muscles (mild). The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or ROM. The examiner opined that pain would significantly limit functional ability with repeated use over a period of time or during a flare-up, estimating that ROM would be further reduced to 25 degrees of forward flexion, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation limited to 25 degrees. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal. Reflexes were normal. Straight leg raising test was negative for radiculopathy. There was no ankylosis of the spine. The Veteran occasionally wore a back brace for back pain when doing strenuous work or lifting at home. An x-ray showed mild degenerative arthritis of the lumbar spine. Based on the foregoing, the Board finds that a higher 40 percent rating is warranted from July 1, 2013. From this date, the evidence reflects that the Veteran’s ROM decreased to more nearly approximate forward flexion limited to 30 degrees during flare-ups. However, a rating higher than 40 percent is not warranted at any time during the appeal because there has been no showing of ankylosis. Prior to July 1, 2013, the medical and lay evidence of record does not reflect that the Veteran’s ROM more nearly approximated greater than 30 degrees but not greater than 60 degrees; or, for combined ROM not greater than 120 degrees. Nor is there any showing of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Rather, muscle spasm and guarding were absent on July 2011 VA examination. Thus, the evidence does not support an initial rating in excess of 10 percent. The Board acknowledges that the Veteran’s service-connected lumbar spine disability caused pain throughout the appellate period. The presence of pain, as described by the Veteran, is certainly a component of his disability and is contemplated in the rating criteria. The Board finds that, prior to July 1, 2013, and given the medical evidence of record, the rating assigned adequately portrays any functional impairment, pain, fatigue, weakness, and any flare-ups that the Veteran experienced as a consequence of his lumbar spine disability. Accordingly, a 10 percent rating prior to July 1, 2013, is appropriate as it already encompasses the provisions of 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board recognizes that the chiropractic records referred to a general assessment of radiculitis/neuritis in 2013. However, the Board finds that this evidence does not warrant separate ratings for neurological disabilities. In this respect, the Board attributes greater probative value to the VA examination reports provided both before and after 2013 which provided comprehensive examinations of both extremities and did not reflect any findings of a neurological disability. Indeed, during his 2019 VA examination, the Veteran only reported intermittent numbness which the examiner considered but again, after thorough testing, found that the neurological findings were normal. Separate ratings are not warranted. In sum, the Veteran’s lumbar spine disability more nearly approximates the criteria for a 40 percent rating, but no higher, since July 1, 2013. To that extent, the claim is granted. However, prior to that date, a rating in excess of 10 percent is denied. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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