Citation Nr: 21009173 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 16-11 681 DATE: February 19, 2021 ORDER Entitlement to service connection for a prostate condition, to include benign prostatic hyperplasia (BPH), as due to exposure to Agent Orange, is denied. Entitlement to service connection for a heart condition, to include as due to exposure to Agent Orange, is denied. Entitlement to service connection for diabetes mellitus type II (diabetes mellitus), to include as due to exposure to Agent Orange, is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of prostate cancer. 2. The Veteran’s prostate condition to include BPH is not etiologically related to service. 3. The Veteran’s heart conditions did not become manifest during service or to a compensable degree within the first year after discharge from service and are not etiologically related to service. 4. The Veteran’s diabetes mellitus did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a prostate condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1953 to February 1955. In February 2018, the Veteran and his daughter appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2018, the Board denied the Veteran’s claim for entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents. In that same decision, the Board remanded the remaining claims for service connection for a heart condition and diabetes mellitus for additional development and consideration. The Veteran appealed the denial of entitlement to service connection for a prostate condition to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR) dated in February 2019. The parties agreed that the Board’s April 2018 denial regarding the claimed prostate condition should be vacated and remanded because the Board erred when it did not consider and address whether the Veteran’s benign prostatic hyperplasia (BPH) fell within the scope of the Veteran’s claim for service connection for prostate cancer. Given such, based on the evidence of record and in compliance with the February 2019 JMR, this issue recharacterized in the prior January 2020 remand as a prostate condition, to include BPH, based on exposure to herbicide agents. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Further, in keeping with the Court’s previous request, the Board notes the record shows the Veteran has also been diagnosed with hypertension. Therefore, the Board has taken the liberty of recharacterizing the issue of entitlement to service connection for coronary artery disease (CAD) to the broader issue of entitlement to service connection for a heart condition, which now encompasses hypertension. See id. Service Connection The Veteran contends that his claimed disorders for a prostate condition, a heart condition, and diabetes mellitus are the result of his military service and, specifically, exposure to herbicide agents near the Demilitarized Zone (DMZ) in Korea, while assigned to the 2nd Battalion, 72nd Armored Tank Division in 1954 and 1955. The Veteran’s DD-214 shows that the Veteran served in the U.S. Army from March 1953 to February 1955. The Veteran and his family also believe that the Veteran was exposed to Agent Orange during his time in Korea because both of his daughters were diagnosed with spina bifida, which they contend is anecdotal evidence of exposure. See November 2020 Written Brief Presentation. Finally, the Veteran’s representative raises the argument that the Veteran was exposed to Agent Orange while stationed at Camp Chaffee, Arkansas. See id. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, including diabetes mellitus, hypertension, and coronary artery disease (CAD), to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. § 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive Service Connection As an initial matter, the Board finds that the evidence of record shows the Veteran has been diagnosed with diabetes mellitus, and heart conditions, to include hypertension, and CAD, the only disabilities on appeal to which presumptive service connection applies. See October 2008 Private Treatment Record. Further, while the Veteran is seeking service connection for prostate cancer, the evidence does not establish he sought treatment for prostate cancer during the appeals period or received a diagnosis of prostate cancer during the appellate period. See generally VA and Private Treatment Records. Given such, the claim as to this disability on any basis must be denied. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Specifically regarding, presumptive service connection under 38 C.F.R. §§ 3.303 and 3.307, there is no evidence of record that the Veteran was diagnosed with diabetes mellitus, CAD, or hypertension in service or within one year of separation from service. In fact, the evidence of record shows the Veteran was diagnosed with hypertension in April 2002, and diabetes mellitus and CAD in October 2008. See April 2002 VA Treatment Record, and October 2008 Private Treatment Record, respectively. Essentially, this is more than 47 years after the Veteran separated from service. As such, service connection is not warranted on this basis. Alternatively, a Veteran who served on active duty between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, is presumed to have been exposed to a herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307 (a)(6)(iv). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Those diseases include diabetes mellitus and CAD, but not hypertension, the other diagnosed heart condition. Here, however, the Veteran’s service ended in February 1955, prior to the requisite period beginning on September 1, 1967, and ending on August 31, 1971. Therefore, exposure to herbicide agents cannot be presumed. Moreover, the Regional Office (RO) has determined that there is insufficient evidence to support a finding that the Veteran was exposed to Agent Orange while stationed in Korea. See February 2012 Formal Finding Memorandum; see also February 2020 JSRRC Response. Direct Service Connection VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to herbicide exposure but must also determine whether the disability was otherwise the result of active service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Therefore, the Board will address the remaining theory of entitlement, direct service connection. First, the Board acknowledges that the Veteran was not provided with VA compensation examinations addressing his service connection claims. Regulations provide that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 C.F.R. § 3.159 (c)(4). In service connection claims, such as is the case here, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). In this case, a remand for medical examinations and opinions is not necessary to adjudicate the Veteran’s service connection claims. As will be discussed below, there is no indication of an injury or other incident in service resulting in the claimed disorders nor is there evidence of exposure to herbicides in service. Therefore, a remand is not required. 38 C.F.R. § 3.159 (c)(4); McLendon, supra. The Veteran’s representative has requested that the Board grant the Veteran a relaxed evidentiary standard regarding the second element of service connection, in-service incurrence, due to the destruction by fire of the Veteran’s service medical records. See November 2020 Appellate Brief. In the case of missing records, the legal standard for proving a claim for service connection is not lowered; rather, the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is heightened. Russo v. Brown, 9 Vet. App. 4 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Further, the Board notes that the Veteran’s service treatment records (STRs) and Official Military Personnel File (OMPF) for his period of active duty were unavailable, and the Veteran was notified of this fact in a VA Memorandum dated in November 2011. VA made all reasonable efforts to obtain these records. 38 U.S.C. § 5103A (c)(2), (3). The November 2011 VA Memorandum documents all efforts taken to obtain the records from 2004 to 2011, all without success. Turning to the merits of the claims, as noted above, the Board finds that the first element of service connection has been satisfied with respect to the claimed diabetes mellitus, heart conditions, diagnosed as hypertension and CAD, and a prostate condition, diagnosed as BHP. See October 2008 Private Treatment Record; see also December 2013 VA Treatment Record, respectively. As it was previously determined, since the Veteran does not have a current diagnosis of prostate cancer, there is no need to discuss this claimed disability further. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Regarding the remaining claims of a heart condition, BHP, and diabetes mellitus, the determinative issue in this case is whether the Veteran meets the second and third prongs of service connection. The Board finds, based on the evidence below, that the Veteran’s claims all fail because the Veteran was not directly exposed to herbicides during service. Therefore, as will be discussed, there is simply no in-service incurrence. The Veteran has submitted numerous statements in support of his assertions, which the Board will address in turn. As to the Veteran’s first argument, he asserts that he was exposed to a defoliant while stationed in Korea. Specifically, in his statement in support of claim, dated in March 2011, he asserts that while serving in Korea guarding the ammo dump he was exposed to a defoliant. He states, “I served in Korea and during the Campaign I was with the 55th Ordinance Company A08 guarding the ammo dump. This is where I believe defoliant was sprayed to kill the grass in the area and this is where my exposure took place. This took place in 1954-1955.” See March 2011 Statement in Support of Claim. A May 2011 Report of General Information includes a statement from the Veteran that he was exposed to agent orange while in Korea while in the DMZ as part of a tank division. In an attempt to verify the Veteran’s exposure to herbicide agents, the RO requested the Veteran provide sufficient details of his exposure in the Korean DMZ in order to submit a request to U.S. Army, Joint Services Records Research Center (JSRRC). In a February 2012 Memorandum, the JSRRC coordinator made a formal finding of a lack of information required to corroborate exposure to herbicide agents. The JSRRC coordinator determined that the information needed to verify that the Veteran was exposed to herbicide (Agent Orange) agents has not been furnished by the Veteran. Specifically, in that the Veteran had not provided sufficient details related to his exposure to herbicide agents while he served in the Korean DMZ. Consequently, the JSRRC coordinator was unable to send a request for verification to the JSRRC, and/ or C&P Services (Agent Orange Mailbox). Thereafter, the June 2013 notice of disagreement includes the Veteran’s statement that he served in Korea near the DMZ while assigned to the 2nd Battalion, 72nd Armor Tank Division. He states that his assignment consisted of five tanks in support of the South Koreans, which is where he was exposed to Agent Orange. The Veteran submitted photographs of himself in front of the aforementioned tanks. A February 2014 statement from the Veteran states he was part of the First Armored Division, Combat Command B while in Korea. The Veteran presented testimony during an October 2016 Decision Review Officer (DRO) hearing. The Veteran testified he was on the 38th parallel in the DMZ. At the urging of his representative, he stated he saw dead vegetation that appeared to have had defoliants on it. During the Veteran’s February 2018 Board hearing testimony, the Veteran provided additional information related to his exposure to herbicide agents. He again identified the unit he was in as the 38th parallel was right at the Korean DMZ. See February 2018 Board Hearing Testimony, 4. The Veteran testified that he was on the front line supporting South Korea. Additionally, the Veteran stated that he saw dead grass and trees, which he believed were sprayed with herbicide agents. See February 2018 Board Hearing Testimony, 8. However, he also acknowledged that he never actually saw Agent Orange while in Korea. See February 2018 Board Hearing Testimony, 13. In August 2018, the Board remanded these matters and again requested the JSRRC attempt to verify the Veteran’s report of herbicide agent exposure near the DMZ in Korea from 1953 to 1955 in light of the statements provided since the initial February 2012 formal finding. In the February 2020 response, it was noted that the JSRRC coordinated with the National Archives and Records Administration but were unable to locate 1955 unit records submitted by the 55th Ordinance Company or the 2nd Battalion. Therefore, the 1955 U.S. Army Station List records were researched, and it indicated that the 55th Ordinance Company was stationed at Kwandae, Korea. Nevertheless, the JSRRC was unable to determine that the Veteran was exposed to Agent Orange or other tactical herbicides while stationed there. Therefore, the Board finds the evidence does not support the Veteran’s assertion that he was exposed to Agent Orange while in Korea. Alternatively, the Veteran and his representative have presented the argument that the Veteran was exposed to Agent Orange while stationed at Camp Chaffee, Arkansas. In support of his claim, the Veteran included website addresses in the November 2020 Written Brief Presentation. See http://www.veteransresources.org/wp-content/uploads/2015/06/Agent-Orange-Exposure-Locations.pdf; see also https://www.arkansaspublicmedia.org/post/during-vietnam-agent-orange-got-arkansas-trial-veterans-and-locals-still-haunted-exposure-fears (last visited February 17, 2021). The Board notes that there has been no showing by the Department of Defense (DoD) or VA that Agent Orange or other herbicides were stored at Camp Chaffee. Moreover, even if the authenticity of these websites were established, they still only show that Agent Orange was used in Korea and Camp Chaffee beginning in 1967 and 1966, respectively, which is more than a decade after the Veteran separated from service. As such, the Board finds this contention unpersuasive as it pertains to an alternative theory of direct exposure to Agent Orange. The Board has also considered the testimony presented during the February 2018 Board hearing that his two daughters were diagnosed with spina bifida, which they believe is due to the Veteran’s exposure to Agent Orange during service. However, neither the Veteran nor his daughter are competent to provide a diagnosis of spina bifida in this case or to attribute this disorder to the Veteran’s military service, to include as due to any potential exposure to Agent Orange. Essentially, this issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, direct exposure to herbicide agents has also not been established. Furthermore, there are no etiological opinions in the claims file attributing the claimed diabetes mellitus, heart conditions (CAD and hypertension), or BPH to the Veteran’s military service. The only opinions proffered are from the Veteran and that of his daughter in support of his claim, as submitted through written statements and during his February 2018 Board hearing, as discussed. Unfortunately, the Veteran and his daughter are not competent to provide etiological opinions attributing these disorders to his military service as the matters are medically complex, and require knowledge of the interpretation of complicated diagnostic medical testing, such as laboratory or physical examination findings. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, while the Veteran’s claims meet prong (1) evidence of current disabilities, they all fail at prongs (2) and (3), as there is no in-service incurrence, i.e. exposure to Agent Orange, and there is no nexus between the Veteran’s diagnosed conditions and his active service. In light of the above, the preponderance of the evidence is against the claims, and the benefit-of-the-doubt doctrine is not for application. Accordingly, the claims of must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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