Citation Nr: 21014936 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 08-09 838 DATE: March 16, 2021 ORDER Entitlement to an increased rating in excess of 10 percent prior to September 18, 2019, and in excess of 20 percent thereafter, for residuals of a right knee medial meniscal injury is denied. Entitlement to an increased rating in excess of 10 percent for a left knee disability, to include status post meniscectomy, is denied. FINDINGS OF FACT 1. Prior to September 18, 2019, the residuals of the Veteran’s right knee meniscal injury manifested as pain on motion. 2. As of September 18, 2019, the residuals of the right knee meniscal injury manifested as flexion limited to 30 degrees. 3. The Veteran’s left knee disability manifested as flexion limited to 35 degrees as of September 18, 2019, and pain on motion prior to that date. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent prior to September 18, 2019, and in excess of 20 percent thereafter, for residuals of a right knee medial meniscal injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 2. The criteria for entitlement to an increased rating in excess of 10 percent for a left knee disability, to include status post meniscectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to June 2000. These matters are on appeal to the Board of Veterans’ Appeals (Board) from an August 2013 rating decision. The claims were previously denied by the Board in an August 2016 decision. The Court of Appeals for Veterans Claims (Court) granted an April 2017 Joint Motion for Partial Remand, vacating the August 2016 decision and remanding the claims back to the Board. The Board remanded the claims in October 2017 and October 2020. The Board finds the most recent October 2020 remand directives have been complied with. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). For his right knee meniscal injury, the Veteran was granted service connection in a February 2013 rating decision effective May 7, 2004 at 10 percent; however, since new and material evidence was added to the file within a year of its issuance, another rating decision was issued in August 2013 confirming the initially assigned 10 percent. As the Veteran has pursued an increased rating since the grant of service connection, the Board will consider the evidence as of May 7, 2004. Where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, the Board will only consider evidence submitted one year prior to the filing of the claim for an increased rating, rather than from the initial assigment. For his left knee disability, VA received the Veteran’s claim for a TDIU (construed as an increased rating claim) on February 12, 2013. Thus, the Board will consider the evidence as of February 12, 2012. Knee disabilities are rated under Diagnostic Codes 5256 through 5263. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Of note, revisions to musculoskeletal regulations became effective February 7, 2021. The Board will consider both versions in determining which is most beneficial to the Veteran; however, a rating based on the revised regulations cannot be earlier than February 7, 2021. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Diagnostic Code 5260 concerns limitation of leg flexion. Under both versions, a noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. Id. Diagnostic Code 5261 pertains to limitation of leg extension and, under both versions, provides a noncompensable evaluation where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. Id. Prior to February 7, 2021, Diagnostic Code (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, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. As of February 7, 2021, DC 5257 provides for a 10 percent rating when there is a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker, or bracing for ambulation). A 20 percent rating is provided when there is (a) sprain, incomplete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker, or bracing for ambulation) or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker, or bracing for ambulation). A 30 percent rating is provided for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Ratings are also provided for diagnosed patellar instability. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.  Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  Of note, the Veteran is separately rated for symptomatic residuals following removal of the semilunar cartilage (DC 5259) as of August 1, 2010 for his left knee and September 18, 2019 for the right. Regarding review of the evidence, although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 1. Increased rating - residuals of a right knee medial meniscal injury The Veteran is currently assigned a 10 percent rating prior to September 18, 2019, and 20 percent thereafter. In a November 2010 VA examination, there was no locking or instability, or objective evidence of pain noted. His flexion was 0 to 128 degrees with full extension. In a November 2011 VA examination, the Veteran’s initial range of motion (ROM) was flexion 0 to 75 degrees with no limitation of extension. There was no objective evidence of painful motion. He described severe flare-ups several times a week aggravated by prolonged walking requiring him to lay down, rest, and wait until the pain subsides. While the examiner did not describe flare-ups in terms of ROM, he did opine that flare-ups caused a functional impact of decreased ROM, pain, and difficulty with prolonged standing and walking. The Veteran endorsed using a brace and cane constantly, and occasionally using crutches. He endorsed frequent episodes of pain and locking, but instability testing was normal with no evidence of subluxation or dislocation. However, the severity of the Veteran’s disability is not adequately reflected in this examination. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In a January 2013 VA examination for the Veteran’s foot/ankle disabilities, it was noted that he uses a cane for knee instability. In a June 2011 hearing discussing, among other issues, service connection for his right knee, the Veteran stated he wears a VA-issued brace. In an August 2013 VA examination, the Veteran stated he could not squat or stand for a long time due to his knees. The examiner indicated that knee pain was reported with no weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups, or when the joint is used repeatedly over a period of time. He had no additional limitation of ROM due to pain on use or during flare-ups. His flexion was 0 to 90 degrees and he had no limitation of extension. Stability testing was normal and there was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran regularly used a cane for balance and knee sleeves. Diagnostic testing showed degenerative arthritis. Again, this examination was inadequate with the requirements of Correia and Sharp. In a September 2019 VA examination, the Veteran described moderate monthly flare-ups that cause a functional loss by difficulty squatting. His flexion was 0 to 60 degrees with extension 60 to 0 degrees. The examiner found that pain on examination caused a functional loss. After repetitive use testing with three repetitions, pain and fatigue caused decreased ROM of 0 to 50 degrees flexion and 50 to 0 degrees extension. While testing with repeated use over time was not conducted, the examiner found the examination was medically consistent with the Veteran’s statements describing functional loss in that regard. It was estimated that pain and lack of endurance decreased the Veteran’s ROM to 0 to 40 degrees flexion and 40 to 0 degrees extension. During flare-ups, this decreased to 0 to 30 degrees flexion and 30 to 0 degrees extension. There was no history of lateral instability or recurrent subluxation. For assistive devices, the Veteran endorsed constantly using a brace and walker for support. Objective evidence of pain was noted on passive and non-weight bearing ROM testing; however, because the examiner failed to indicate this in terms of ROM as required by Correia, the examination was inadequate in that regard. Moreover, the previous remand directives had requested the examiner opine as to the additional limitation of motion during flare-ups beginning February 2013, and the examiner failed to do so. Thus, a new VA examination was obtained in November 2020. In the November 2020 examination, the Veteran endorsed constant pain that increased with prolonged standing and cold weather. Flare-ups cause functional loss as he is unable to stand or walk for long periods of time and has difficulty squatting or kneeling. His most reduced ROM during flare-ups was estimated to be 0 to 70 degrees flexion and 70 to 0 degrees extension. There was no history of recurrent subluxation or instability. He used a brace for knee stability and used a cane and walker for daily walking. Objective evidence of pain was noted with non-weight bearing and passive ROM; the examiner indicated the ROM was the same as active. In an addendum opinion addressing the February 2013 time period, the examiner explained that the Veteran reported experiencing flare-ups from the November 2020 examination, which would have been after the February 2013 time period began. During his flare-ups, the Veteran experiences a 10 degree decrease in ROM for both flexion and extension. Several treatment records, including past VA examinations, reflect constant right knee pain throughout the appeal period, resulting in several treatment methods including surgery, physical therapy, and steroid injections. In October 2005, it was noted that knee and foot pain caused limited ROM and pain; however, there was no locking or instability and the Veteran was able to fully straighten his knees. A May 2007 record reflects decreased ROM with pain and swelling. In June 2007, a medical record reflects the Veteran had full extension with flexion to approximately 130 degrees. He had symptoms of pain, locking, and giving way occasionally, but no instability was noted. In July 2007, while noting pain, the Veteran had good ROM with no real restrictions noted. A September 2007 record reflects full ROM in all planes. In October 2007, the Veteran had tenderness but no effusion or instability. In April 2008, the Veteran had intermittent swelling and tenderness with no instability, but there were episodes of locking and giving way noted. In the May 2008 operative report for the Veteran’s meniscal repair, no instability was noted. In an August 2008 follow-up visit, it was noted that he had regained full motion without effusion or tenderness. In April 2011, there was full ROM with no locking. The Veteran’s intermittent symptoms of locking, pain, and effusion fall under DC 5258, for which he is separately rated. While he uses a cane for the resulting instability, there is no evidence of recurrent subluxation or lateral instability under either version of regulations that would warrant a rating under DC 5257. The Veteran’s most reduced ROM throughout the appeal period is flexion limited to 30 degrees during flare-ups in the September 2019 examination. Prior to that date, there is no evidence of limitation of motion to a compensable degree, but there is evidence of painful motion. Thus, under DC 5003, the Veteran is entitled to a 10 percent rating prior to September 18, 2019. In sum, the Veteran is entitled to a 10 percent rating, but no higher, prior to September 18, 2019, and a 20 percent rating, but no higher, thereafter. The provisions of 38 C.F.R. § 4.40 and § 4.45 have been applied and are reflected in the Veteran’s rating. 2. Increased rating - left knee disability, to include status post meniscectomy The Veteran is currently assigned a 10 percent rating. In an August 2013 VA examination, the Veteran stated he could not squat or stand for a long time due to his knees. The examiner indicated that knee pain was reported with no weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups, or when the joint is used repeatedly over a period of time. He had no additional limitation of ROM due to pain on use or during flare-ups. His flexion was 0 to 90 degrees and he had no limitation of extension. Stability testing was normal and there was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran regularly used a cane for balance and knee sleeves. Diagnostic testing showed degenerative arthritis. As stated above, this examination was inadequate with the requirements of Correia and Sharp. In a September 2019 VA examination, the Veteran described moderate monthly flare-ups that cause a functional loss by difficulty squatting. His flexion was to 65 degrees with extension 65 to 0 degrees. The examiner found that pain noted on the examination caused a functional loss. After repetitive use testing with three repetitions, pain and fatigue caused decreased ROM of 0 to 55 degrees flexion and 55 to 0 degrees extension. While testing with repeated use over time was not conducted, the examiner found the examination was medically consistent with the Veteran’s statements describing functional loss in that regard. It was estimated that pain and lack of endurance decreased the Veteran’s ROM of 0 to 45 degrees flexion and 45 to 0 degrees extension. During flare-ups, this was decreased from 0 to 35 degrees flexion and 35 to 0 degrees extension. There was no history of lateral instability or recurrent subluxation. For assistive devices, the Veteran endorsed constantly using a brace and walker for support. As explained above, due to the inadequacies of this examination, a new VA examination was obtained in November 2020. In the November 2020 examination, the Veteran endorsed constant pain that increases with prolonged standing and cold weather. Flare-ups cause functional loss as he is unable to stand or walk for long periods of time and has difficulty squatting or kneeling. His most reduced ROM during flare-ups was 0 to 70 degrees flexion and 70 to 0 degrees extension. There was no history of recurrent subluxation or instability. He uses a brace for knee stability and uses a cane and walker for daily walking. Objective evidence of pain was noted with non-weight bearing and passive ROM; the examiner indicated the ROM was the same as active. In an addendum opinion addressing the February 2013 time period, the examiner explained that the Veteran reported experiencing flare-ups from the November 2020 examination, which would have been after the February 2013 time period began. During his flare-ups, the Veteran experiences a 10 degree decrease in ROM for both flexion and extension. Several treatment records, including past VA examinations, reflect constant left knee pain throughout the appeal period, resulting in several treatment methods including surgery, physical therapy, and steroid injections. X-rays show degenerative arthritis. He also endorses symptoms of locking, pain, and effusion; however, these fall under DC 5258, for which he is separately rated. While he uses a cane for the resulting instability, there is no evidence of recurrent subluxation or lateral instability under either version of regulations that would warrant a rating under DC 5257. The Veteran’s most reduced ROM was 0 to 35 degrees flexion during flare-ups in the September 2019 examination. This corresponds to a 10 percent rating under DC 5260. Prior to that date, there is no evidence of limitation of motion to a compensable degree, but there is evidence of painful motion, which would still warrant a 10 percent rating. Thus, the Veteran is entitled to a 10 percent rating, but no higher, throughout the appeal period. The provisions of 38 C.F.R. § 4.40 and § 4.45 have been applied and are reflected in the Veteran’s rating. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED