Citation Nr: 21008780 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-21 085A DATE: February 18, 2021 ORDER Entitlement to service connection for substance abuse, to include drug and alcohol abuse, is denied. Entitlement to a temporary total evaluation due to treatment for a service-connected disability requiring convalescence is denied. Entitlement to nonservice-connected pension benefits prior to September 16, 2020 is denied. REMANDED Entitlement to a compensable disability rating for calluses of the bilateral feet is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected calluses of the bilateral feet, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected calluses of the bilateral feet, is remanded. Entitlement to nonservice-connected pension benefits from September 16, 2020 is remanded. FINDINGS OF FACT 1. Service connection for substance abuse, to include drug and alcohol abuse, is barred as a matter of law. 2. The Veteran’s bilateral plantar condylectomy of the fifth metatarsal head that forms the basis for the claim for entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 was conducted on February 1, 1990; the Veteran’s claim for a temporary total evaluation was received by VA on October 23, 2012, more than one year after the medical procedure upon which the claim for convalescence is based. 3. Prior to September 16, 2020, the Veteran is not 65 years of age or older and was not permanently and totally disabled from nonservice-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for substance abuse, to include drug abuse and alcohol abuse, have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.301, 3.303, 3.310(a). 2. The criteria for establishing entitlement to a temporary total evaluation based on the need for convalescence following surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.400(o)(2), 4.30. 3. The criteria for nonservice-connected pension prior to September 16, 2020 have not been met. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. §§ 3.102, 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1974 to April 1979, and from August 1980 to August 1983. During his period of service, he earned the National Defense Service Medal, Army Service Ribbon, Driver and Mechanic Badge (Mechanic), Good Conduct Medal, Rifle Marksman Badge, and Expert (Rifle) Badge. On his June 2014 VA Form 9, the Veteran requested a hearing. In April 2018 correspondence, the Veteran requested to reschedule his March 2018 hearing. He also requested to be rescheduled for a videoconference hearing. By March 2019 correspondence, the Veteran was notified that a videoconference hearing had been scheduled for April 2019. However, the Veteran did not appear for the scheduled hearing and has not requested a rescheduled hearing. Therefore, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2020). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for substance abuse. With respect drug abuse, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a veteran’s own alcohol or drug abuse. Moreover, § 8052 also amended 38 U.S.C. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person’s own willful misconduct, including abuse of alcohol or drugs. See also VAOPGPREC 2-97. The Veteran filed a claim of entitlement to service connection for drug and alcohol abuse in April 2010. He generally contends that his substance abuse is related to military service. However, service connection may not be granted for drug or alcohol abuse on the basis of service incurrence or aggravation as a matter of law. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301. A substance abuse disability may only be service-connected if such was acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). These laws and regulations clearly establish that substance abuse, to include drug and alcohol abuse, is not a disability for which service connection can be established or compensation is paid. In addition, the evidence does not suggest, nor has the Veteran alleged, that he has a substance abuse disability that was acquired as a symptom of, or secondary to, any service-connected disability. Therefore, the claim of entitlement to service connection for substance abuse, to include drug and alcohol abuse, does not present a basis for which relief may be granted and has no legal merit. As the disposition of this claim is based on law and not the facts of this case, the claim must be denied based on lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Rating 2. Entitlement to a temporary total evaluation due to treatment for a service-connected disability requiring convalescence. A temporary total disability rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (2020). A temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence, (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a) (2020). The effective date of a temporary total rating assigned under § 4.30 is governed by the regulation concerning the effective date for increased ratings. For increased ratings, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (2020). The regulation governing effective dates for increased ratings also prohibits a retroactive award for an increased rating after basic entitlement has ended (such as a temporary total rating claim filed more than one year after the surgical treatment or convalescence has ended). See 38 C.F.R. § 3.400(o)(1) (2020). In this case, the evidence of record shows that the Veteran underwent bilateral plantar condylectomy of the fifth metatarsal head in February 1990. However, the Veteran submitted his claim for a temporary total rating in April 2010, which is more twenty years after his bilateral foot surgery. The period on appeal cannot date back to more than one year prior to the date of claim. See 38 U.S.C. § 5110(b)(2) (“The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.”); 38 C.F.R. § 3.400(o). Since the surgery and convalescent period occurred more than one year prior to April 2010, the period of convalescence is not covered by the time period on appeal. The Board notes that the legislative and public policy purpose of providing a temporary total rating benefit is to provide veterans with a subsistence support during convalescence, when employment is precluded. To accomplish this purpose, the claim for that benefit sought must be filed in proximity to the need for subsistence support. In any regard, the Board is without authority to disregard controlling law and regulations, even to achieve what it perceives to be an equitable result. Accordingly, the Veteran’s claim for entitlement to a temporary total disability rating for convalescence under the provisions of 38 C.F.R. § 4.30 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Entitlement to nonservice-connected pension benefits for the period on appeal prior to September 16, 2020. VA nonservice-connected pension benefits are payable to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). Basic entitlement exists if (i) the veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3(a). A veteran is considered permanently and totally disabled if the veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled as determined by the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B). The Veteran served on active duty in the United States Army from June 1974 to August 1983, which includes service during the Vietnam War Era. 38 C.F.R. § 3.2 (2020). Thus, he meets the requirement of having service during a recognized period of war. The Veteran’s DD-214 shows his date of birth as September 16, 1955; thus, he turned 65 on September 16, 2020. Therefore, prior to September 16, 2020, the evidence must show that he was permanently and totally disabled due to his nonservice-connected disabilities. For the period from September 16, 2020, he meets the age eligibility requirement; thus, the question turns to his eligibility based upon net worth and annual income. This period will be addressed in the remand section of this decision. For the period on appeal prior to September 16, 2020, the evidence of record is negative for any indication that the Veteran was permanently and totally disabled, to include as due to nonservice-connected disabilities. There is no evidence that the Veteran received Social Security Administration disability benefits or was a patient in a nursing home. The Board acknowledges that the Veteran has nonservice-connected disabilities; however, they have not been shown by competent credible evidence to be permanently and totally disabling. Moreover, the evidence of record does not demonstrate that the Veteran was unemployable or had a disability that would render the average person unable to follow a substantially gainful occupation. One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the “average person” test. See 38 U.S.C. § 1502(a); 38 C.F.R. § 4.15; Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet this test, the veteran must have the permanent loss of use of both hands or feet, or one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden; or the permanent disabilities must be rated, singly or in combination, as 100 percent. The Board finds that the evidence of record does not demonstrate that the Veteran meets any of those criteria. In sum, the evidence of record shows that the Veteran was not 65 years old prior to September 16, 2020 and was not permanently and totally disabled as due to nonservice-connected disabilities. Accordingly, the Board finds that the claim of entitlement to nonservice-connection pension for the period prior to September 16, 2020 must be denied. The Board need not make a determination as to whether the Veteran met the income requirements for entitlement to a pension for the period prior to September 16, 2020, as the evidence of the Veteran’s age and level of disability are dispositive. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to nonservice-connected pension prior to September 16, 2020, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020). REASONS FOR REMAND 1. Entitlement to a higher rating for calluses of the bilateral feet. The most recent examination related to the Veteran’s service-connected calluses of the bilateral feet was in May 2010. The Veteran reported occasional aches from his condition. He occasionally soaked his feet and shaved his calluses with a razor blade. No associated constitutional symptomatology or treatment within the 12 months prior to examination were noted. The examiner indicated that the calluses were nontender to palpation. Evidence of record shows that the Veteran’s disability may have worsened since that examination. Specifically, a September 2010 VA treatment record indicates that the Veteran complained of very painful, thickened calluses on the sub-fifth metatarsal heads bilaterally. Further, a June 2012 VA treatment record shows nucleated calluses on the sub-fifth metatarsal heads bilaterally. Accordingly, the claim must be remanded for a new VA examination addressing the current symptoms of calluses of the bilateral feet. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board notes that the most recent VA treatment records associated with the claims file are dated in July 2014. As the case is being remanded, the Board will take the opportunity to obtain any updated VA treatment records. 2. Entitlement to service connection for hypertension. The Veteran generally contends that his hypertension is related to his active service. The Veteran’s service treatment records appear to be incomplete. The Board notes the Veteran’s service treatment records appear to be devoid of any treatment records from the Veteran’s first period of service. Therefore, remand is required for the Agency of Original Jurisdiction (AOJ) to attempt to secure the service treatment records. If unable to do so, a Memorandum of Formal Finding of Unavailability of Service Treatment Records must be prepared and sent to the Veteran. Further, no VA medical opinion has been obtained with regard to the Veteran’s hypertension. Therefore, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for a left ankle disability. The Veteran contends that he is entitled to service connection for right and left ankle disabilities that are related to service, or in the alternative, secondary to service-connected calluses of the bilateral feet. The Board notes that the Veteran has not been afforded a VA examination with regard to these claims; thus, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for right and left ankle disabilities. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran has reported experiencing right and left ankle pain during service and these conditions have continued since separation. The Board finds this could be sufficient to be suggestive of a disability for VA compensation purposes, as it could be pain sufficient to cause functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Service treatment records appear to indicate that the Veteran sustained a broken ankle prior to his second period of service. However, the Board notes that the Veteran’s entrance examinations for his first and second periods of service are not of record. As the entrance examinations are not of record, the Veteran is presumed to have been sound upon entry to his first and second periods of service. 38 C.F.R. § 3.304(b). If a disorder was not “noted” on entering service, VA must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If VA fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. Here, the Veteran’s separation examination from his second period of service notes that the Veteran sustained a broken ankle in 1979 for which he received worker’s compensation. Although the RO attributed this injury to the right ankle, the treatment record does not identify which ankle actually sustained the injury. Accordingly, on remand, the AOJ should clarify with the Veteran which ankle sustained injury in 1979, as noted at the time of the Veteran’s June 1983 separation examination. Moreover, the Board finds that a VA examination and etiologic opinion regarding whether the Veteran’s claimed right or left ankle disability preexisted his active service and was aggravated therein is warranted, or in the alternative, is related to service or a service-connected disability. 5. Entitlement to nonservice-connected pension benefits from September 16, 2020. Here, the Veteran meets the initial threshold requirement for pension in that he served for over 90 days during a period of war from June 1974 to April 1979, and from August 1980 to August 1983. During the pendency of this appeal, the Veteran turned 65 years old on September 16, 2020. Thus, he no longer has to prove permanent and total disability. However, the question becomes whether the Veteran meets the net worth requirements under 38 C.F.R. § 3.274 and his income is not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23 for the period beginning September 16, 2020. See 38 U.S.C. § 1521(a); 38 C.F.R. § 3.3(a). Thus, a remand is warranted to obtain the Veteran’s income and expenses and to ensure they are correctly calculated for the applicable appeal period. The matters are REMANDED for the following actions: 1. Undertake all appropriate action to obtain any outstanding service treatment records from the Veteran’s first and second periods of service from the appropriate source(s). If no records are obtained, prepare a Memorandum of Formal Finding of Unavailability of Service Treatment Records outlining the steps taken to retrieve the Veteran’s service treatment records, and notify the Veteran. A copy of the memorandum should be associated with the claims file. 2. Obtain and associate any ongoing VA treatment records since June 2014 with the claims file. 3. Contact the Veteran and request that he clarify his claims of entitlement to service connection for right and left ankle disabilities by indicating which ankle was sustained injury as noted in the June 1983 separation examination. 4. Schedule the Veteran for a VA examination with the appropriate examiner to determine the current severity and manifestations of his service-connected calluses of the bilateral feet. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected calluses of the bilateral feet. 5. Schedule the Veteran for an appropriate VA examination in connection with his claim for entitlement to service connection for hypertension. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. Any indicated studies should be performed. The examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current hypertension had its onset in service or is otherwise etiologically related to active service. 6. Schedule the Veteran for an appropriate VA examination in connection with his claims for entitlement to service connection for right and left ankle disabilities. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. Any indicated studies should be performed, including X-rays. Based upon a review of the relevant evidence of record, the VA examiner should offer the following opinion: (a.) Was the preexisting right or left ankle disability clearly and unmistakably not aggravated by the Veteran’s service? Clear and unmistakable evidence is evidence that is obvious, manifest, and undebatable. The term “aggravated” in this context refers to a permanent worsening of the underlying condition beyond the natural progress of the disease, as contrasted to temporary or intermittent flare-ups of symptomatology that resolve with a return to the baseline level of disability. If clear and unmistakable evidence is found, the VA examiner should cite to factual data contained in the record or medical literature to support such a conclusion. (b.) If it is the examiner’s opinion that there is no clear and unmistakable evidence that the right or left ankle disability was not aggravated by service, the Veteran is presumed sound at service entrance, and the question becomes one of direct service connection. 1. In this case, the VA examiner must state whether it as least as likely as not (a 50 percent or greater probability) that the right or left ankle disability had (i) had its onset in active service or is otherwise etiologically related to active service; (ii) is caused by his service-connected calluses of the bilateral feet; or (iii) is aggravated by his service-connected calluses of the bilateral feet. 2. In light of Saunders, 886 F.3d 1356 (2018), the examiner should acknowledge that pain alone can serve as a functional impairment and therefore qualify as a disability. As a result, if there is no diagnosis of a right or left ankle disability, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s reported right and left ankle pain results in a functional impairment of earning capacity, i.e., a disability for VA purposes? Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 7. Send the Veteran a letter asking that he identify income and any unreimbursed medical expenses that were paid that may offset the amount of his countable income for pension calculation purposes for the period on appeal from September 16, 2020. The letter should be enclosed with Improved Pension Eligibility Verification Reports, Medical Expense Reports, and any other forms required for a full and accurate reporting of the Veteran’s income and expenses for the period in question. Thereafter, the RO should review the expanded record and determine whether the nonservice-connected pension benefits sought may be granted for the period on appeal from September 16, 2020 utilizing the applicable criteria. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, 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