Citation Nr: 21012024 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-27 792 DATE: March 3, 2021 ORDER 1. Service connection for a left lower extremity disability, (including the left knee, left leg, left thigh and left calf), to include as secondary to service-connected bilateral Achilles tendonitis, is denied. 2. Service connection for a right lower extremity disability (including the right knee), to include as secondary to service-connected bilateral Achilles tendonitis, is denied. 3. Service connection for a low back disability (including lumbar spine radiculopathy, lower lumbar spondylosis, lumbar disc disease and spinal stenosis with radiculopathy), to include as secondary to service-connected bilateral Achilles tendonitis, is denied. 4. Service connection for a bilateral foot disability (to include aggravation of pre-existing bilateral pes planus), to include as secondary to service-connected bilateral Achilles tendonitis, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a left lower extremity disability began during active service or is otherwise related to an in-service injury or disease, nor is it secondary to a service-connected disability. 2. The preponderance of the evidence is against finding that a right lower extremity disability began during active service or is otherwise related to an in-service injury or disease, nor is it secondary to a service-connected disability. 3. The preponderance of the evidence is against finding that a low back disability began during active service or is otherwise related to an in-service injury or disease, nor is it secondary to a service-connected disability. 4. The preponderance of the evidence is against finding that a bilateral foot disability began during active service or is otherwise related to an in-service injury or disease, nor is it secondary to a service-connected disability. 5. The preponderance of the evidence is against finding aggravation of the preexisting bilateral pes planus due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left lower extremity disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a right lower extremity disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1982 to August 1982 and from March 1989 to July 1990. The Veteran testified via Video Conference before the undersigned Veterans Law Judge in November 2018. He currently has a combined disability rating of 80 percent. The issues on appeal were remanded in September 2020 for additional development. The development having been complete, the appeal has been returned to the Board for further review. For the record, the Board notes that various diagnoses pertaining to the Veteran’s alleged disabilities are reflected throughout the claims file. Most recently, during a December 2020 clinical examination, the Veteran was found not to have medical diagnoses related to the alleged conditions on appeal, as the doctor examining the Veteran found these alleged conditions to have either been incorrectly diagnosed or transient disabilities that had resolved. The Board is cognizant that evidence, in general, are “snapshots” of things that are occurring doing a particular time, and therefore are not always consistent. For this reason, the Board is given the responsibility to review all evidence of record and make factual findings as to which evidence is more probative and persuasive in evaluating an appeal. The Board has attempted to assimilate the evidence as much as possible; and thereafter has made factual findings of the evidence as per its appellate mandate. Service Connection Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With respect to the existence of a present disability element, the United States Court of Appeals for the Federal Circuit has held that pain causing functional impairment, in the absence of a diagnosis, may still constitute a current disorder for purposes of a service connection claim if it “reaches the level of a functional impairment of earning capacity.” See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Service connection for certain chronic diseases, including degenerative joint disease, will be presumed if the diseases manifest to a compensable degree within one year following active military service. Service connection may also be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected disability has aggravated a claimed condition. The Board notes for the record that the Veteran is service-connected for (1) an acquired psychiatric disability consisting of “posttraumatic stress disorder, generalized anxiety disorder, insomnia disorder and major depressive disorder,” (2) right ankle Achilles tendonitis, and (3) left ankle Achilles tendonitis. 1. Service connection for a left lower extremity disability, to include the left knee, left leg, left thigh and left calf For the record, the Veteran underwent a bilateral knee quadriceps tendon surgery for rupture of the quadriceps tendons in December 2010, 20 years after he separated from service. The Veteran has been diagnosed as having a left knee patella infera, also known as a patella baja (an abnormally low patella) related to his surgery. A January 2012 VA examination report reveals that, in addition to his left knee patella infera, the Veteran was diagnosed with internal derangement of left knee and traumatic arthritis of the left knee. During a February 2020 examination, the Veteran was diagnosed with a left quadriceps’ tendon rupture post-surgical reattachment with chronic complications (left thigh disability) and left knee tendonitis. To the extent that the Veteran argues he is entitled to service connection for residuals of his left knee surgery, the claim was addressed in a September 2020 BVA decision and denied. Additionally, because the Veteran is not service-connected for residuals of his left knee surgery, service connection for any other medical condition (i.e., a left leg disability, a right knee disability) secondary to residuals of his left knee surgery is also not available. A review of the Veteran’s May 1990 service separation examination reveals an abnormal clinical examination related to the Veteran’s lower extremities to the extent that he was found to have a tender right Achilles tendon. In the summary of defects and diagnoses section of the examination report, the Veteran was noted as having chronic, recurrent right Achilles tendonitis, pes planus, elevated cholesterol, and elevated blood pressure. The separation examination report does not reference a left lower extremity disability. The Veteran reported during a January 2012 VA examination that he developed left leg symptoms during active duty in 1982 when he injured his left knee. After reviewing the Veteran’s claims file, the examiner provided an opinion that the Veteran’s left knee condition was less likely than not incurred in or caused by his July 1982 knee injury given the lack of residuals documented in the Veteran’s records since 1982. The examiner also cited to medical records in the claims file that included a December 2010 operation report in which the Veteran’s doctor noted that he had no past medical history when seen for ruptured bilateral quadriceps tendons. The Board observes that a separate December 2010 record in the claims file reflects that the Veteran had no knee problems prior to a December 2010 fall. In letters dated in February 2018 and November 2018, Dr. R.K. stated that the Veteran’s “bilateral knee condition” was more likely than not related to his military service; and he had a bilateral lower extremity disability that was secondary to his other service-connected disabilities. The Veteran was then afforded VA examinations in relation to his left knee and leg conditions in February 2020. A February 2020 examiner found that it was less likely than not that a left thigh disability or left knee tendonitis were related to service. The examiner pointed to the fact that the Veteran’s injury leading to the development of these disorders occurred in 2010, after the Veteran separated from service. Another nexus medical opinion was associated with the claims file in May 2020. The examiner, Dr. M.C., stated that he reviewed the Veteran’s entire claims file. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Finally, according to a December 2020 Hip and Thigh Conditions DBQ, the Veteran was found to have no currently diagnosed disabilities. The examining doctor’s rationale was that the Veteran had complaints of left hip discomfort that had previously been evaluated as left thigh/muscle injury by the February 2020 DBQ. The Veteran contended that his left hip “discomfort” was due to his above-referenced left knee surgery completed more than a decade ago. The doctor examining the Veteran noted that he failed to disclose that he had a second left knee surgery in January 2016. He said that post-operatively, the Veteran had apparently improved with surgery and reported that his left hip/thigh/muscle issues had more or less “resolved.” The doctor also found that it was worth noting that the Veteran essentially had no issues with his left or right hips during his period of service on active duty. He ultimately found that the Veteran’s left hip/thigh/ muscle issues had resolved. There was no objective evidence seen on exam to support a diagnosis for any claimed left lower extremity disability, (including the left knee, left leg, left thigh and left calf). In addressing the Veteran’s secondary service connection claims, the doctor opined that it was less likely than not that the Veteran’s claimed lower extremity disabilities were neither caused by nor aggravated by his service-connected disabilities, to specifically include his bilateral Achilles tendonitis. He reported that the Veteran’s clinical exam of the “left knee, left leg, left thigh, and left calf” were completely within normal limits, and thus no diagnosis was warranted or rendered. In support, he cited to a 2016 radiology image which showed that the Veteran’s left quadriceps tendon was intact, as was the left patellar tendon. Thus, all the medical examiners evaluating the Veteran except Dr. R.K. provide unfavorable medical nexus opinions. Overall, the Board finds that these medical opinions are more persuasive and credible than the ones provided by Dr. R.K., because Dr. R.K. failed to cite to any evidence in support of his statements, nor did he provide a rationale upon which his opinions were based. Lastly, although the Veteran has been found not to have a current diagnosis of a lower extremity disability, pain without a diagnosis can potentially still satisfy the “current diagnosis” element of a service connection claim. However, the VA December 2020 examination revealed no pain, functional loss or functional impact. Thus, service connection based upon the holding of Saunders v. Wilkie is not warranted. Saunders v. Wilkie 886 F.3d 1356 (Fed. Cir. 2018). The appeal is denied. 2. Service connection for a right lower extremity disability, to include the right knee In his February 2018 and November 2018 letters, Dr. R.K. stated that the Veteran’s bilateral knee condition was more likely than not related to his military service; and he had a bilateral lower extremity disability that was secondary to his other service-connected disabilities. As mentioned above, however, Dr. R.K. did not cite to any evidence in support of his statements, nor did he provide a rationale. The Veteran’s service treatment records fail to reveal reports of any injury related to the right knee. Additionally, there are no references to any complaints or/treatment for a right knee condition. During the February 2020 VA examination, the Veteran was diagnosed as having chronic right knee tendonitis with pain. A February 2020 medical opinion from Dr. J.Z. states that it was less likely as not that the Veteran’s right knee tendonitis was related to service, as he believed the Veteran’s right knee disability resulted from complications related to his left knee surgery. In addition to the foregoing, the doctor evaluating the Veteran in December 2020 found that the Veteran did not have a current right lower extremity disability upon which service connection could be based. For the same reasons the Board found the unfavorable medical nexus opinions of record to be more probative and persuasive than the statements made by Dr. R.K. in evaluating the Veteran’s claim of entitlement to service connection for a left lower extremity disability, the Board finds the unfavorable medical nexus evidence to be more persuasive than the favorable evidence in terms of his claim for service connection for a right lower extremity disability. Lastly, the Board notes that according to the December 2020 Hip and Thigh Conditions DBQ, the Veteran was found to have no currently diagnosed disability or functional loss/impairment in the right lower extremity. As he found no current disability/functional impairment, the Veteran’s right lower extremity could not have worsened or been aggravated by any of the Veteran’s service-connected disabilities. Therefore, service connection for a right lower extremity disability, to include the right knee, on both a direct and secondary basis, is denied. 3. Service connection for a low back disability, to include lumbar spine radiculopathy, lower lumbar spondylosis, lumbar disc disease and spinal stenosis with radiculopathy A December 2014 MRI of the Veteran’s lumbar spine reveals that he had lower lumbar spondylosis. A February 2020 VA medical examination also noted a diagnosis of spinal stenosis with radiculopathy. In letters dated in February 2018 and November 2018, Dr. R.K. stated that the Veteran had lumbar disc disease/lumbar radiculopathy that were more likely than not related to his military service and/or developed secondary to his service-connected disabilities. The Veteran was afforded a VA examination in relation to his back-disability claim in February 2020. After conducting a physical examination and reviewing the Veteran’s claims file, Dr. J.Z. opined that the Veteran’s low back disability was not at least as likely directly related to service on the basis that the Veteran’s service treatment records do not reveal any injuries to, complaints of or treatment for a back disorder. Additionally, he found that post-service medical records in the claims file failed to reveal specific issues concerning the Veteran’s low back except for a December 2010 “problem list” note that indicated the Veteran suffered from low back pain. Given the lack of other supporting evidence, Dr. J.Z. found a positive nexus opinion not to be warranted. Turning to the December 2020 VA examination, the doctor evaluating the Veteran noted his review of the claims file, the entire medical record, to specifically include the February 2020 VA examination report. After obtaining a medical history from the Veteran and conducting a physical examination, the doctor opined that the did not have a thoracolumbar spinal condition diagnosis. He stated that even though the February 2020 VA examiner gave a provisional diagnosis of “spinal stenosis,” a review of the Veteran’s service treatment records showed no such clinical diagnosis ever rendered. Ultimately, the doctor opined that the Veteran did not have a chronic, disabling condition. In this regard, he noted that although the Veteran’s post-service medical records revealed a diagnosis of “low back pain” and an old MRI documented “spondylosis” in 2018, he found no current diagnosis because it had resolved with time and appropriate care/treatment (the Veteran has several rounds of PT/OT, HEP, narcotics, etc. on the books in the past, but NO treatment as of late). The old imaging study was not recent and certainly did not reflect the findings of the clinical exam today. The examiner found that no diagnosis has been rendered for the back given that this historical spondylosis with back pain was transient and resolved with appropriate care, thus NOT a chronic, disabling condition. In terms of secondary service connection, the doctor found that it was less likely than not that the Veteran’s claimed back disability was proximately due to or the result of a service-connected disability. In doing so, he reported that he reviewed all the Veteran’s treatment records, including the February 2020 medical report. In doing so, he noted that the clinical exam of the Veteran’s back was essentially completely within normal limits, and therefore no diagnosis was warranted or rendered. He stated that objective radiographs showed no evidence of stenosis or degenerative disc disease, which confirmed his findings on clinical exam. Lastly, in support of his opinion, the doctor reflected that EMG results in the clams file dated in November 2018 showed no “electrophysiological evidence for a lumbosacral radiculopathy...” On the question of aggravation, the examiner once again opined that because he found no back disability upon clinical examination, the question of aggravation was moot as there was no disability that could be aggravated. For the same reasons the Board found the unfavorable medical nexus opinions of record to be more probative and persuasive than the statements made by Dr. R.K. in evaluating the Veteran’s claim of entitlement to service connection for a back disability, the Board finds the unfavorable medical nexus evidence to be more persuasive than the favorable evidence for the back disability claim. Lastly, the Board notes that according to the December 2020 back DBQ, the Veteran was found to have no currently diagnosed disability or functional loss/impairment in the back. As he found no current disability/functional impairment, the Veteran’s back disability could not have worsened or been aggravated by any of his service-connected disabilities. Therefore, service connection for a back disability, on both a direct and secondary basis, is denied. 4. Service connection for a bilateral foot disability The Veteran’s entrance examination notes a diagnosis of bilateral pes planus. In his November 2018 letter, Dr. R.K. stated that the Veteran disabilities of the bilateral feet were more likely than not related to military service or were secondary to his service-connected disabilities. Additionally, he stated that the Veteran suffered from pes planus that was severely aggravated by his military service. In February 2020, the Veteran was afforded a VA examination in connection with his claim. After performing a physical examination and reviewing the claims file, Dr. J.Z. opined that the Veteran’s pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. Dr. J.Z.’s rationale for his opinion was that the Veteran’s bilateral foot disability consisted of left and right pes planus with pain. He noted that the Veteran’s pes planus disability was documented on his enlistment report of medical evaluation, thus revealing that the condition existed prior to service. Dr. J.Z. stated that the Veteran’s pes planus was likely congenital in nature; and that it was not unexpected with the Veteran’s service duties, his training, and the foot gear he was issued in service would result in his experiencing pain. It was his conclusion that the Veteran’s current pes planus was a natural progression of the disability, but not an aggravation of underlying pathology. According to the December 2020 doctor, it is less likely than not that the Veteran’s claimed bilateral foot disability was proximately due to or the result of his service-connected disabilities. In support of his opinion, the doctor referred to the Veteran’s service treatment records, including his enlistment and separation physicals that noted the Veteran had pre-existing “pes planus” mild. However, his clinical examination of the Veteran was completely within normal limits. Thus, he found that no diagnosis was warranted or rendered. In support thereof, he noted objective radiographic evidence that clearly showed that the Veteran does not have pes planus, x-rays that indicated that he had flat feet “present by history may be present but this finding is not well demonstrated radiographically.” The interpreting radiologist then gave the impression that the left foot appeared otherwise normal, as did the right foot. In terms of the question of aggravation, the doctor indicated once again that his clinical examination revealed that the Veteran’s pes planus never existed or had resolved. Therefore, the Veteran’s pes planus could not have been worsened or aggravated by any other service or nonservice-connected disability. Of note, the Veteran did not report pain of the foot while being evaluated for the DBQ, nor did he report any functional loss. No functional loss for the Veteran’s left lower extremity or the right lower extremity were found to be attributable to the Veteran’s pes planus. Given the overall evidence of record, clearly the medical opinions unfavorable to the Veteran’s claims are more persuasive in comparison to the statements provided by Dr. R.K. Similarly, to his other conclusory assertions, Dr. R.K.’s letters do not reference any evidence upon which he based his opinions or set forth a rationale upon which they were formulated. As such, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Thus, service connection for a bilateral foot disability on a direct, secondary, or preexisting with aggravation basis is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talpins, Patricia 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