Citation Nr: 21010432 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 09-34 780 DATE: February 24, 2021 ORDER For the period from November 8, 2007 to May 1, 2017, entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether, from November 8, 2007 to May 1, 2017, symptoms of the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW For the entire rating period from November 8, 2007 to May 1, 2017, the criteria for a TDIU due to service-connected disabilities are met. 38 U.S.C. §§ 1155, 5102, 5107; 38 C.F.R. §§ 3.321(b), 3.340, 4.16(b) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969, with additional service in the National Guard. This case comes to the Board from an April 2008 decision of the Agency of Original Jurisdiction (AOJ), which denied the Veteran’s request for a disability rating higher than 30 percent for his service-connected posttraumatic stress disorder (PTSD). The Veteran initiated an appeal of that decision. In April 2013, the Board increased the PTSD rating from 30 percent to 50 percent. Because the record contained information suggesting that his psychiatric symptoms may have prevented him from working, the issue of TDIU was part of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). While the April 2013 decision contains a final ruling on the issue of whether he was eligible for a higher schedular disability rating for PTSD under 38 C.F.R. § 4.130, the Board remanded the related issue of TDIU to the AOJ to obtain further information about the Veteran’s work history. Unfortunately, the Veteran died in May 2017. Pursuant to 38 U.S.C. § 5121A, his surviving spouse was permitted to substitute for her husband as the appellant in this case for the purpose of processing this appeal to completion. In September 2019, the Board remanded this appeal to the AOJ again, this time for referral to the Director of the Compensation Service for initial consideration of the issue on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Director denied the claim for an extraschedular TDIU rating in November 2020. Entitlement to a TDIU VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran’s earned annual income is below the poverty threshold and in other limited circumstances. Id. Subsection (b) of the same regulation provides that it is VA’s policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. When the claimant does not meet the schedular criteria of subsection (a), however, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The Board has jurisdiction to review the Director’s refusal to assign an extraschedular rating. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015); Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to TDIU is based on an individual’s particular circumstances. Rice, 22 Vet. App. at 452. When deciding a TDIU claim, the Board must take into account the individual’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court clarified the consequences of referrals for extraschedular TDIU. The Court determined that a decision to refer a claim to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b) is a factual finding, but the referral does not necessarily require the Board to award an extraschedular rating. Id. at 65. However, the Board must ensure that it adequately explains when a factual finding made at the referral stage comes out differently at the review stage. Id. at 66. Factual Background In August 2003, after finding that his symptoms were related to stressful events he experienced during his deployment to Vietnam, the AOJ granted service-connected compensation for PTSD. The period relevant to this appeal begins on November 8, 2007, the day the AOJ received the Veteran’s request for an increased disability rating for his PTSD. During the relevant appeal period, the Veteran had the following service connected disabilities: (1) PTSD (rated 50 percent disabling); (2) diabetes mellitus type II (20 percent disabling); (3) tinnitus (10 percent); (4) right ear hearing loss (zero percent); and (5) erectile dysfunction (zero percent). His combined disability rating was 60 percent since November 8, 2007. When he filed the pending claim, the Veteran had recently finished his last period of paid employment. According to information from the Social Security Administration (SSA), he was employed by a trucking company until October 26, 2007. There is no evidence that he has performed paid work since then. According to his written application for TDIU, the Veteran’s formal education ended after two years of high school. He did not receive any other education or training. He indicated that PTSD was the disability which prevented him from working and that he first became unable to work in 2007. According to the Veteran, the largest sum of money he received for paid work in a single year was $38,000, when working as a truck driver. The earliest available psychiatric examination report, dated July 2003, is consistent with these statements about the extent of the Veteran’s education and work history. He told the July 2003 examiner that, after his discharge from active duty, he worked briefly in a factory, followed by several jobs as a truck driver. The examiner described the Veteran as a person “who has always had some difficulty with employment and has done better in jobs where he can work by himself.” Medical records during the year after the Veteran left his job indicate some serious psychiatric symptoms and a few unsuccessful efforts to work again. According to a December 2007 VA progress note, the Veteran was depressed and close to tears. According to the psychiatric nurse, “His PTSD might be a little worse. He is avoiding leaving his home and feels very anxious when he is in public. He says his sleep is the same with frequent interruptions and with nightmares at least twice a week even with [medication]. . . Has decreased motivation and energy.” Subsequent mental health notes describe the Veteran as “looking for a part-time job going to several agencies but no luck.” He was apparently offered a different truck driving job in April 2009, but he declined the offer because he did not ‘want that kind of stress.” An earlier note, dated October 2008, described his goal as “part-time work where he can work primarily by himself.” The documents from the SSA include a letter from the Veteran’s most recent employer, which explains that the Veteran informed them that PTSD made it too stressful difficult to drive a truck in heavy traffic. The Veteran told a subsequent VA examiner that, when was driving “I sort of ‘lost it’ so they pulled me off the road. The letter from the former employer reports that, “Since [the Veteran] had been a good employee” he was given temporary duties assisting with paperwork at the company’s office. But because of some subsequent changes in the nature of the employer’s business, the employer decided that the amount of office work he was doing “did not justify the rate of pay he was earning” and he was told he needed to return to driving. The letter explained that, “because even after he received the letter pertaining to [PTSD], he continued to operate a truck on overnight regional trips to fulfill those duties, it is our opinion that he is able to drive a truck and complete the loads that we requested him to in order to keep him employed. However, [he] declined all of our offers, stating that he would not go back on the road no matter what, and would instead resign on Friday, October 26, 2007.” The employer’s statement about the Veteran’s ability to work was disputed by the Veteran’s treating VA psychologist, who participated in a recorded interview with the Veteran’s attorney in support of his claim for SSA benefits. When he was asked about the Veteran’s symptoms, the psychologist said, “I think they have gotten worse here in recent years. He has a hard time being around other people. He was an over the road truck driver and I think he did a pretty good [job] with that until the stress got to him. I also think he did pretty good working while he was in the National Guard but he got out in 1997. I think he has had a hard time holding on to jobs since then. He has a hard time just being around other people.” According to the psychologist, the Veteran would have a difficulties if he needed to have contact with the general public or if required to be around co-workers in a typical workplace: “He might still be able to do [a] part time [job], where he can work a whole lot by himself and not have to worry about people . . . To handle a full-time job like he used to have, no, that would be just too hard for him.” The psychologist estimated that, if he were working full-time, the Veteran would probably miss about two or more days of work per month. In September 2009, the SSA issued a favorable decision, finding that the Veteran had been disabled and unable to work since October 26, 2007. In granting SSA disability benefits, the agency considered the following list of impairments: "chronic obstructive pulmonary disease (COPD); arthrosis of right acromioclavicular (AC) joint; bilateral [sensorineural] hearing loss; post-traumatic stress disorder.” For the sake of brevity, the Board will not attempt to describe all the various VA examination reports and VA mental health treatment records. This decision will focus primarily on assessments of the ability to work and on the symptoms most directly affecting to the ability to work. The Veteran reported to a VA mental illness examination in February 2008 and the examiner provided a report describing the problems of irritability, agitation and hypervigilance. He had vague ideas of “wishing [to] hurt” his former employers. The examiner wrote that psychiatric symptoms “moderately” impaired the Veteran's ability “to manage certain work-related stressors” such as driving in traffic and interacting with other people. According to a subsequent report, dated February 2010, the Veteran continued to report irritability, though with some improvement. He told the examiner he avoided social events and spent most of his time alone or with his wife. He had “problems with handling stress, and he tends to avoid stressful situations in the past that may require extensive focusing or concentration.” The Veteran was examined again by a VA psychologist via a telehealth remote interview in February 2013. This examiner’s report suggested a much more mild degree of impairment than was described in earlier or subsequent records. The list of symptoms identified by the examiner indicated only “suspiciousness.” In the examiner’s opinion, the degree of occupational and social impairment associated with PTSD most closely approximated the criteria for only a 30 percent disability rating under 38 C.F.R. § 4.130 – i.e., causing only an occasional decrease in work efficiency and an intermittent inability to perform occupational tasks. The July 2013 VA examination report, however, indicated occupational impairment with deficiencies in most areas. According to the examiner, the Veteran’s PTSD symptoms consisted of anxiety, suspiciousness, chronic sleep impairment; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, and obsessional rituals which interfere with routine activities. The AOJ obtained an opinion from a doctor of osteopathy in September 2014 to help decide whether the Veteran could perform the duties of a sedentary occupation. According to the examiner, “His issues really don’t limit his ability to function in a sedentary occupation. His [s]houlder issues prevent him from doing a physical occupation where he would have to lift his arms above his head or lift more than 20 [pounds]. His other issues do not affect his employability.” This opinion does not mention psychiatric symptoms. The last VA PTSD examination took place in July 2015. The Veteran’s symptoms included a persistent negative emotional state, irritable behavior and angry outbursts, problems with concentration, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. According to the examiner, there was “insufficient evidence to support that veteran’s symptoms have either improved or worsened since his last exam and veteran indicated as much during the course of the exam (e.g. "no better, no worse"). In regard to occupational functioning, he reported having retired from the military in 1997 and as an over the road truck driver in 2007. He reported a positive work history in general; however, interpersonal interactions appear to have been minimized based on the type of positions held.” When the considering the TDIU claim in September 2019, the Board observed that the schedular ratings assigned to Veteran’s service-connected disabilities did not meet the requirements of 38 C.F.R. § 4.16(a). As for a potential extraschedular TDIU rating under subsection (b), the Board reviewed the Veteran’s educational and work history, including his limited education, his most recent work as a truck driver, and his statements to multiple VA examiners describing how psychiatric symptoms eventually made it very difficult for him to drive a truck. The Board made a finding that this evidence was sufficient to substantiate a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities. The issue was therefore remanded for referral to the Director of the Compensation Service pursuant to 38 C.F.R. § 4.16(b). On remand, the AOJ issued a memorandum in August 2020 referring the TDIU claim to the Director. The AOJ’s memorandum recommended that the Director should grant an extraschedular TDIU rating. But the Director denied a TDIU in November 2020. The explaining her ruling, the Director acknowledged that the “medical evidence shows the Veteran had occupational and social impairment with deficiencies in most areas, however, it was not noted that employment was precluded.” The Director then described a few principles applicable to extraschedular ratings in general. She observed that extraschedular ratings are for exceptional or unusual cases and that the previously assigned schedular rating is itself a recognition that the Veteran’s service-connected disabilities make it difficult to obtain and keep employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis Having considered the evidence, the Board finds that it is at least as likely as not that the Veteran service-connected PTSD symptoms prevented him from obtaining and following a substantially gainful occupation throughout the relevant appeal period. There is some evidence against this finding. For example, the letter from the Veteran’s most recent employer and submitted to SSA indicates that, before October 2007, he was a reliable employee and, in the employer’s opinion, he was probably able to continue to drive a truck because he successfully handled multiple shipments after providing his employer with a letter describing his PTSD symptoms. The February 2013 VA psychiatric examination report described very mild symptoms. And the September 2014 opinion from the osteopathic doctor indicated that, in the examiner’s opinion, the Veteran should be able to perform a sedentary job. As a layperson, however, the Veteran’s employer is not necessarily qualified to assess the severity of his psychiatric symptoms. The opinion in the letter is also difficult to reconcile with several indications that, although he was able to perform the duties of his job with PTSD for years, the Veteran’s symptoms increased in severity at about the time his employment ended in October 2007. The recorded interview with his treating psychologist, dated July 2009, includes the observation that the Veteran’s symptoms “have gotten worse here in recent years.” The December 2007 VA treatment note indicated that the symptoms of PTSD as “a little worse.” This note described the Veteran as being “[n]ear tears” and experiencing “decreased motivation and energy.” Because he was apparently capable of doing working in an office, assisting a trucking company with paperwork after informing them that his PTSD prevented him from driving in heavy traffic, the Board has considered the possibility that his service-connected disabilities might, as the September 2014 opinion suggests, have been compatible with a sedentary office job, even if his symptoms prevented him from continuing in his usual occupation as a truck driver. But the evidence to support such a finding is insufficient. The June 2009 interview with the treating psychiatrist indicates that, although the Veteran could potentially perform part-time work, any kind of full-time job “would be just too hard for him.” Moreover, the Veteran’s service-connected bilateral hearing loss and tinnitus would appear to have impacted his ability to have performed office-type employment. See August 2015 VA audiological examination (noting that tinnitus impacts sleep and hearing loss impaired conversational exchanges). The other medical evidence and the Veteran’s background and limited education support the psychologist’s opinion. The July 2003 examination report indicates that, years before his symptoms worsened, he was most well-suited for “jobs where he can work by himself.” An October 2008 note described his goal as “part-time work where he can work primarily by himself.” But the psychiatric symptoms described in the subsequent examination reports probably would have been severe obstacles to unsupervised, solitary, office work. For example, the July 2013 examination report indicates that the Veteran had difficulty concentrating, and experienced disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or a worklike setting, and obsessional rituals which interfere with routine activities. These symptoms – and especially “impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks” – would likely make it difficult for the Veteran to perform sedentary office work without close collaboration or supervision. And it appears from the letter the Veteran’s former employer wrote to the SSA that he was never given a full-time position as an office worker handling paperwork. The arrangement for him to work in the office seems to have been temporary and the employer appears to have accepted the arrangement for a limited period based on the expectation that the Veteran would return to work as a truck driver, although hopefully serving routes with relatively light traffic and with destinations closer to the Veteran’s residence. These circumstances make it doubtful that he would have been able to secure and follow a full-time job as an office worker performing sedentary work. As noted, the February 2013 VA examiner described mild psychiatric symptoms. But most of the earlier and subsequent examination reports described a more serious level of disability. It may also be significant that, unlike the other reports, the February 2013 report was not based on an in-person examination. The Board has considered the September 2009 SSA decision finding that the Veteran had been disabled since October 26, 2007. Although the SSA’s determination is not binding on the Board, the medical evidence relied on by the administrative law judge, particularly the June 2009 opinion from the Veteran’s treating psychologist, is relevant and the SSA's ultimate conclusion is persuasive under the circumstances of this case. The SSA uses different criteria to award disability benefits than the Board uses when considering requests for TDIU. One significant difference between the two systems is that relevant disabilities, for the purposes of SSA disability benefits, need not be related to service. In this case, it appears from the agency’s decision that the SSA decided to award disability benefits primarily due to the effects of the Veteran’s service-connected PTSD. Of course, the Director reached a contrary finding when she denied an extraschedular TDIU rating in November 2020. But the Board does not defer to the Director’s findings, see Kuppamala, 27 Vet. App. at 457, and is required to consider the Veteran’s individual education, experience, and work history when reviewing the denial of a TDIU rating. See Pederson, 27 Vet. App. at 286. Although the Director’s decision includes correct statements of the law, it did not analyze the Veteran’s education and work history or explain how these circumstances favored the conclusion that his service-connected disabilities were compatible with full-time, gainful employment after October 2007. These factors, particularly his lack of an education beyond the tenth grade and his most recent work experience in a field which seems incompatible with the symptoms described by the mental health examiners, are favorable to his TDIU claim. The Board’s September 2019 remand included a factual finding that the evidence established a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities. Having made this finding, and having ordered a referral to the Director, if it were to deny the claim, the Board would be required to “adequately explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage.” Ray, 31 Vet. App. at 66. Since the Board ordered the extraschedular referral, the evidence continues to support the finding that, before he died, the Veteran’s service-connected psychiatric symptoms prevented him from working. The available information is insufficient to provide the kind of explanation required by Ray to support a denial of the claimed benefit under the procedural circumstances of this case. Finally, the Board has also considered the AOJ’s recommendation that a TDIU rating should be granted, effective April 6, 2015. But this recommendation conflicts with the “remarks” section of the July 2015 examination report, which indicates that “symptoms have either improved or worsened since his last exam and veteran indicated as much during the course of the exam (e.g. ‘no better, no worse’).” It also conflicts with the June 2009 opinion of the Veteran’s treating psychologist, who said that working a full-time job “would be just too hard for him.” For these reasons, the evidence is at least evenly balanced as to whether, due to service-connected disabilities, the Veteran was unable to secure or follow a substantially gainful occupation from November 7, 2008 until his death. Resolving reasonable doubt in the appellant’s favor, a TDIU rating will be assigned on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), for the period between November 7, 2008 and May 1, 2017. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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