Citation Nr: 21010017 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-28 451 DATE: February 23, 2021 ORDER An initial rating in excess of 10 percent for left knee strain is denied. An initial rating in excess of 10 percent for right knee strain is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s left knee strain is manifested by pain on movement with flexion to 100 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. 2. For the entire appeal period, the Veteran’s right knee strain is manifested by pain on movement with flexion to 100 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an initial rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to March 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for left and right knee strains with initial noncompensable ratings, effective April 8, 2011. During the course of the appeal, an April 2017 rating decision granted increased ratings of 10 percent as of March 7, 2017. Thereafter, in April 2018 the Board remanded the case for additional development; and in a June 2020 rating decision, the RO awarded initial 10 percent ratings for the Veteran’s bilateral knee disabilities, effective April 8, 2011 (the entire appeal period), pursuant to a July 2019 Board decision. In July 2019, the Board also remanded the instant claims for additional development and they now return for further appellate review. The Board notes that additional evidence consisting of private treatment records was associated with the claims file following the issuance of the September 2020 supplemental statement of the case. However, as sch records are irrelevant to the instant claims on appeal, no prejudice results to the Veteran in the Board proceeding with a decision at the present time. 38 C.F.R. § 20.1304(c). Increased Rating The Veteran contends that his service-connected bilateral knee disabilities are more severe than as reflected by the currently assigned ratings, and thus higher initial ratings are warranted. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran’s bilateral knee disabilities have been rated as 10 percent disabling for the entire appeal period pursuant to DC 5260 for painful movement with otherwise noncompensable range of motion (ROM). 38 C.F.R. §§ 4.59, 4.71a. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where extension is limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA’s General Counsel has stated that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). DC 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. In this regard, VA’s General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, DC 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, DC 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that, if an appellant does not meet the criteria for a noncompensable rating under either DC 5260 or DC 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, DC 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Specifically, for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating. Id. 1. Entitlement to an initial rating in excess of 10 percent for left knee strain. 2. Entitlement to an initial rating in excess of 10 percent for right knee strain. During the period on appeal, the Veteran underwent evaluations of his bilateral knees at VA examinations in April 2012, March 2017, and September 2020. At the initial examination in April 2012, the Veteran reported bilateral knee pain that was aggravated by prolonged standing, giving way, and constant “popping.” He endorsed flare-ups as a constant dull pain (with giving way and tenderness) that was treated with Aspirin. Upon examination, his bilateral knees had full ROM with flexion to 140 degrees and extension to zero degrees with no objective evidence of painful motion in either knee. Repetitive use testing showed no additional limitation in ROM; and the Veteran did not have any functional loss/impairment or DeLuca concerns. The examiner noted tenderness or pain on palpation bilaterally. The Veteran had normal muscle strength, normal stability, no subluxation or dislocation, no meniscal condition, and there was no impact on his ability to work. At the VA examination in March 2017, the examiner noted that there was no evidence of pain on passive ROM or pain with nonweight-bearing. The Veteran endorsed flare-ups and indicated that there were at least two nights a week that he was unable to sleep due to his knees hurting too bad. He further reported that he was unable to kneel or crawl; and that it hurt to walk, stand, or climb stairs for too long. Upon examination, the Veteran had bilateral knee flexion to 100 degrees and extension to zero degrees with pain on flexion, including with weight-bearing. The examiner noted that the bilateral knee ROM contributed to functional loss as the Veteran had limited bending at the knees. There was objective evidence of tenderness or pain on palpation bilaterally and crepitus. There was no additional loss of ROM following repetitive testing. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with repeated use over a period of time; however, At the VA examination in March 2017, the examiner noted that there was no evidence of pain on passive ROM or pain with nonweight-bearing. The Veteran endorsed flare-ups and indicated that there were at least two nights a week that he was unable to sleep due to his knees hurting too bad. He further reported that he was unable to kneel or crawl; and that it hurt to walk, stand, or climb stairs for too long. Upon examination, the Veteran had bilateral knee flexion to 100 degrees and extension to zero degrees with pain on flexion, including with weight-bearing. The examiner noted that the bilateral knee ROM contributed to functional loss as the Veteran had limited bending at the knees. There was objective evidence of tenderness or pain on palpation bilaterally and crepitus. There was no additional loss of ROM following repetitive testing. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with repeated use over a period of time; however, the examiner was unable to say without mere speculation whether such significantly limited the Veteran’s functional ability with flare-ups. Further testing showed the Veteran had normal strength, normal stability, no ankylosis, no subluxation or dislocation, and no meniscal condition. He used a brace as a normal mode of locomotion, occasionally. With respect to functional impact, the examiner noted that the Veteran was unable to crawl or kneel; and he had limited prolonged walking, standing, and use of stairs. A May 2018 VA treatment record revealed normal muscle strength during extension in each knee. In July 2019, the Board remanded the claim in order to afford the Veteran another examination to address the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which pertains to limitation of ROM during flare-ups. Subsequently, at the VA examination in September 2020, the Veteran endorsed flare-ups/functional impairment described as a constant dull ache in both of his knees; and that he experienced pain from prolonged sitting, standing, and walking. He noted that he avoided squatting and bending at the knees. Upon examination, the Veteran had right knee flexion to 110 degrees and extension to 0 degrees; and left knee flexion to 105 degrees and extension to 0 degrees. He exhibited pain on flexion and extension bilaterally. The examiner noted that such ROM did not itself contribute to functional loss. There was no objective evidence of tenderness or pain on palpation bilaterally; however, there was evidence of pain with weight-bearing and crepitus. There was no additional loss of ROM following repetitive testing. The examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over a period of time and flare-ups bilaterally; however, there was no additional loss of ROM. Further testing showed the Veteran had normal strength, normal stability, no ankylosis, no subluxation or dislocation, and no meniscal condition. With respect to functional impact, the examiner noted that the Veteran indicated he could not sit, stand, or walk for prolonged periods as such caused increased pain and the need to stretch his legs. The examiner noted that there was objective evidence of pain with nonweight-bearing in each knee, but the Veteran’s ROM did not change. Accordingly, based on the foregoing, the Board finds that initial ratings in excess of 10 percent for the Veteran’s bilateral knee disabilities are not warranted. In this regard, the Veteran has shown limitation of bilateral knee flexion, at worst, to 100 degrees with pain. However, such do not result in additional functional loss more nearly approximating limitation of flexion to 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, which is required for higher ratings under DC 5260. Further, the Veteran is in receipt of the minimal compensable ratings due to the provisions of 38 C.F.R. § 4.59. Thus, initial ratings in excess of 10 percent for the Veteran’s bilateral knee disabilities pursuant to DC 5260 are not warranted. Moreover, higher or separate ratings are not warranted pursuant to DC 5261 as the Veteran’s left or right knee extension has not been shown to be limited to 5 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Rather, he has routinely tested for full extension bilaterally, often without pain noted. The Board further notes that, while the Veteran complained of instability and giving way during the period on appeal, such was not found on examinations conducted during the appeal period. In this regard, while he is competent describe feelings of instability and giving way, he is not competent to relate such symptoms to a diagnosis of lateral instability. In this regard, there is no indication that he possesses the requisite knowledge to administer or interpret specialized testing that would reveal instability. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the VA examiners, who have the training to conduct and interpret ligament testing, found that there was no instability in neither the right nor left knee. Consequently, the Board finds that higher or separate ratings under Diagnostic Code 5257 are not warranted. Finally, as the evidence does not show ankylosis, dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum, higher or separate ratings under DCs 5256, 5258, 5259, 5262, and 5263, respectively, are not warranted. In reaching the foregoing conclusion, the Board acknowledges the Veteran’s belief that his bilateral knee symptoms are more severe than as reflected by the current assigned ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, supra. Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity of his bilateral knee disabilities. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected bilateral knee disabilities; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for such disabilities is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Thus, the Board finds that the preponderance of the evidence is against initial ratings in excess of 10 percent for the Veteran’s bilateral knee disabilities. Therefore, the benefit of the doubt doctrine is not applicable, and the Veteran’s claims for higher initial ratings must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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