Citation Nr: 21016217 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-42 866 DATE: March 22, 2021 ORDER Entitlement to an increased evaluation for lumbar strain, currently rated as 10 percent disabling, is denied. REMANDED Entitlement to an increased evaluation for degenerative arthritis of the cervical spine, currently rated as 10 percent disabling, is remanded. FINDING OF FACT Throughout the relevant appeal period, the symptoms of the Veteran’s service-connected lumbar strain have most closely approximated normal range of motion, albeit with painful movement. CONCLUSION OF LAW The criteria for an increased evaluation for lumbar strain, currently rated as 10 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2006 to October 2010. This case comes to the Board from a January 2013 decision of the Agency of Original Jurisdiction (AOJ), which denied claims for ratings higher than 10 percent for service-connected disabilities of the cervical and lumbar spinal segments, respectively. The Board remanded both issues for further development in September 2018 and, most recently, in June 2020. Increased Rating for Lumbar Strain Disability ratings are determined by applying VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board may consider whether separate ratings may be assigned for separate periods of time – a practice known as “staged ratings,” – whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating for the Veteran’s lumbar spine was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237 (“Lumbosacral or cervical strain”). The General Formula for Diseases and Injuries of the Spine (General Formula) applies to this diagnostic code, unless it is appropriate to evaluate the disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board will apply whichever method results in the higher rating. See 38 C.F.R. § 4.71(a). Under the General Rating Formula, a thoracolumbar spine disability is rated as follows: a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome, incapacitating episodes having a total duration of least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a 40 percent rating. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a 60 percent rating. Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the spine, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33. VA examination reports for musculoskeletal disabilities must comply with 38 C.F.R. § 4.59 by evaluating range of motion in the affected joint “for pain on both active and passive motion and in weight bearing and nonweight-bearing....” Correia v. McDonald, 28 Vet. App. 158, 170 (2016). VA examiners also have the duty to elicit information from the Veteran describing the condition of the relevant joints after repeated use over time and during “flare-ups” or episodes when the relevant symptoms are at their worst. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Veteran’s 10 percent rating was also assigned pursuant to the provision of 38 C.F.R. § 4.59, recognizing “actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” The minimum compensable rating authorized by this regulation is appropriate when there is pain or painful motion in the relevant joint, even if motion in the joint is not actually limited or, if motion is limited, when motion is not limited to the extent required for a compensable rating by the relevant diagnostic code based on limited motion. See Petitti v McDonald, 27 Vet. App. 415, 425-26 (2015); Mitchell, 25 Vet. App. at 34. Effective February 7, 2021, VA’s Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. VA has made clear its intent that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied.   For applications filed on or after the effective date, only the new criteria will be applied.  As the Veteran’s claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects “Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)”; DC 5243 now reflects “Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses.” These changes do not impact the general rating formula and, in this Veteran’s case, evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. Factual Background In May 2011, the AOJ granted service-connected compensation for disabilities of the cervical and lumbar spinal segments. For the lumbar spine, the Veteran was assigned a 10 percent disability rating, effective October 16, 2010. The Veteran filed the pending claim for an increased rating in November 2012. In December 2012, he submitted a written statement, describing pain in his neck and back. To help decide the claim, the AOJ arranged for a VA physician assistant to examine the Veteran’s back in January 2013. According to the examiner’s report, the diagnosis was lumbar strain. The Veteran did not report flare-ups affecting the function of his back. Initial range of motion test results indicated that forward flexion was normal (90 degrees), extension was normal (30 degrees) and that there was no objective evidence of painful motion with flexion or extension. Left and right lateral flexion and left and right lateral rotation were also all normal (30 degrees), with no objective evidence of painful motion during any of those movements. The Veteran was able to perform repetitive use testing, and range of motion remained normal after three repetitions. According to the January 2013 examiner, there was no localized tenderness or pain to palpation of the joint or associated soft tissue of the lumbar spine. There was no radiculopathy and no other neurologic abnormalities. The examiner wrote that the Veteran did not have intervertebral disc syndrome, but apparently failed to complete the part of the examination questionnaire asking whether the Veteran experienced guarding or muscle spasms. A VA physician conducted another examination of the thoracolumbar spine in February 2017. According to the examination questionnaire, initial range of motion test results indicated normal flexion, normal extension, normal right and left lateral flexion, and normal right and left lateral rotation. The Veteran exhibited pain during all of these movements. There was also pain with weight bearing. The Veteran was capable of repetitive use and, during all of the movements, range of motion remained normal after three repetitions. Unlike the January 2013 report, the February 2017 report noted that the Veteran reported experiencing flare-ups. Indeed, part 3D of the questionnaire indicates that the February 2017 examination took place during a flare-up. When asked to document the description of these flare-ups in the Veteran’s own words, the examiner wrote, “The flare ups of the back can be described as worsening pain.” The February 2017 report also noted evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. But there was no guarding or muscle spasm. With respect to the testing methods described in 38 C.F.R. § 4.59, the examiner indicated that there was objective evidence of pain during passive range of motion and in non-weight bearing. In September 2017, the Board remanded the claim on the grounds that the February 2017 questionnaire failed to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, the AOJ arranged another examination in October 2019. According to the examination report, the diagnosis was lumbosacral strain. Range of motion remained normal during flexion, extension, right and left lateral flexion, and right and left lateral rotation. According to the examiner, no pain was noted during the examination. The examiner also indicated that there was no evidence of localized tenderness or pain to palpation of the joints or associated soft tissue. The Veteran was able to perform repetitive use testing and, as in the previous examinations, ranges of motion remained normal after three repetitions. According to the October 2019 examiner, the Veteran did not report flare-ups of the thoracolumbar spine. Consequently, the examiner did not attempt to provide the estimate, required by Sharp, of range of motion during flare-ups. Like the earlier examiners, the October 2019 examiner wrote that there was no thoracolumbar ankylosis, no radiculopathy, and no other neurologic abnormalities. According to the examiner, the Veteran did not have IVDS. Likewise, the examiner indicated that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. With respect to the testing methods mentioned in 38 C.F.R. § 4.59, the examiner wrote that there was no evidence of pain during passive range of motion testing and, likewise, no evidence of pain when the joint was tested in non-weight bearing. When asked to provide range of motion measurements for testing using these methods, the examiner wrote “see exam” – i.e., the range of motion during these testing methods remained the same as the normal measurements provided in the initial range of motion testing section of the examination questionnaire. In June 2020, the Board remanded the case again because, although the October 2019 examiner declined to make an estimate of flare-ups on the grounds that the Veteran did not report experiencing flare-ups at the time, the Veteran had reported flare-ups earlier. The other problem with the October 2019 report was that the examiner indicated that no review of the claims file had been requested. This note seems to reflect a misunderstanding of the Board’s September 2018 remand orders, which specifically asked the post-remand examiner to review the Veteran’s records. The most recent thoracolumbar spine examination took place in September 2020. The examiner’s report indicates that he reviewed the VA claims file. The diagnoses were lumbosacral strain and degenerative arthritis. The medical history section of the report indicates that the lumbar spine condition had progressed or worsened since its initial onset. The Veteran apparently told the examiner that he experienced flare-ups, described as “continuous, low grade pain but flares with bending and lifting and also in cold.” The September 2020 examiner indicated that the Veteran continued to have normal forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. He exhibited pain during both forward flexion and extension. There was objective evidence of localized tenderness or pain on palpation of the joint and associated soft tissue. The Veteran also experienced pain with weight bearing. The report describes normal range of motion after repetitive use testing. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Pursuant to Sharp and the Board’s remand orders, the September 2020 examiner provided estimates of reduced functional ability due to pain, weakness, fatigability or incoordination after repeated use over time and during flare-ups in terms of degrees of range of motion. According to the examiner, functional loss consisted of pain, but range of motion would remain normal after repeated use over time and during flare-ups. The September 2020 examiner wrote that the Veteran did not experience guarding or muscle spasm of the thoracolumbar spine. Additional factors contributing to disability consisted of interference with sitting and standing. Specifically, the Veteran experienced pain after sitting or standing for more than 30 minutes. Because of these factors, he regularly alternated sitting and standing. According to the examiner, there was no radiculopathy, no ankylosis, and no other neurologic abnormalities. The Veteran did not have IVDS and did not use assistive devices. When asked to describe the functional impact of the Veteran’s disability, the examiner wrote that the Veteran avoided repeated lifting of objects weighing more than 20 pounds. Pursuant to 38 C.F.R. § 4.59, the examiner also wrote that, in addition to the normal initial range of motion measurements in active motion and with weight-bearing, the Veteran also experienced pain during range of motion testing on passive motion and in non-weight bearing. However, during both of these testing methods, the examiner noted that range of motion was the same as range of motion in active motion – i.e., normal. In addition to the examination reports and the Veteran’s statements, the Board has also reviewed the post-service medical treatment records. Most of the information in these records is repetitive of the summary of the symptoms described by the various examiners. An October 2012 private treatment record indicated moderate, intermittent lumbar pain. The Veteran mentioned flare-ups according to VA treatment notes from August 2014 and January 2016, but these flare-ups seem to have concerned his cervical spine. A note from May 2015 indicated decreased spinal range of motion “C/L” described as 25% but the note did not describe the reduction in normal motion in terms of degrees flexion, extension, etc. The only precise evidence of the extent of any abnormal motion in the lumbar spine comes from a February 2011 examination report, dating from before the beginning of the current appeal period. That report describes 85 degrees of forward flexion (90 degrees is normal), 20 degrees extension (30 degrees is normal), 20 degrees of both left and right lateral flexion (30 is normal), and normal right and left lateral rotation. Analysis As a preliminary matter, the Board finds that the post-remand September 2020 examination report is adequate and substantially complies with the earlier remand orders. The examiner complied with Mitchell and Sharp by provided estimates of the probable range of motion in the Veteran’s service-connected thoracolumbar spine after repeated use over time and during flare-ups. The examiner complied with Correia by assessing range of motion using all of the testing methods required by 38 C.F.R. § 4.59, by indicating the testing methods in which pain was present, and, during the tests in which pain was present, by indicating that range of motion, in degrees, was the same as the results initially recorded during active motion. The June 2020 remand instructions did ask the examiner to elicit information about the frequency and duration of any flare-ups. Although the September 2020 examiner clearly elicited information from the Veteran about the extent of range of motion during flare-ups, the report does not specify how often he experienced flare-ups or, when he did experience flare-ups, how long they lasted. However, because the examiner provided estimates of normal range of motion with all the relevant movements during flare-ups, the failure to specify the frequency and duration of flare-ups is harmless error. This is clear because, even if the Board assumes that the Veteran was experiencing flare-ups for the entirety of the relevant appeal period (November 26, 2012 to the present), that finding would not support the assignment of an increased rating. Turning to the merits of the increased rating claim, the Board finds that the preponderance of the evidence is against a finding that the Veteran is eligible for a rating higher than 10 percent for his service-connected lumbosacral strain. According to the reports of all of the VA examinations which took place during the relevant appeal period, the range of motion in the Veteran’s thoracolumbar spine was normal. A higher rating of 20 percent under the General Rating Formula based on limited motion is not appropriate unless forward flexion is between 30 and 60 degrees. See 38 C.F.R. § 4.71a. Since it appears that the Veteran has always been capable of greater range of motion, even during flare-ups and even after repeated use over time, a higher rating based on limited motion is inappropriate. The General Rating Formula also authorizes a higher 20 percent rating when there is muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Although the January 2013 examiner failed to indicate whether the Veteran experienced guarding or muscles spasm of the thoracolumbar spine, the remedy for an inadequate examination is to afford the Veteran a new examination. Since the January 2013 report, the AOJ has arranged three examinations and those examiners have uniformly indicated that the Veteran did not experience any guarding or muscle spasms. None of the Veteran’s statements or post-service treatment records are inconsistent with these findings. A rating for IVDS based on incapacitating episodes is inappropriate because there is no evidence from any source suggesting that the Veteran has IVDS of the thoracolumbar spine or that he has required periods of bed rest prescribed by a physician. The symptoms emphasized by the Veteran in his statements, and which are consistently noted in the medical evidence, are pain and painful motion. But for the entire appeal period, the AOJ has already assigned a 10 percent minimum compensable rating for actually painful motion, which appropriately compensates the Veteran for the disabling effects of these symptoms. See 38 C.F.R. §§ 4.59, 4.71a, DC 5003; Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991); Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of his increased rating claim. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). For the reasons above, the preponderance of the evidence is against a finding that his thoracolumbar spine disability has satisfied the relevant criteria for a rating higher than 10 percent at any point during the appeal period. Because the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. REASONS FOR REMAND Entitlement to an increased evaluation for degenerative arthritis of the cervical spine, currently rated as 10 percent disabling is remanded. Although the Board regrets the need for further delay, the increased rating claim for the cervical spine must be remanded to repair weaknesses in the most recent VA examination report. Pursuant to Note (1) to the General Rating Formula for Diseases and Injuries of the Spine, the Board must evaluate any neurologic abnormalities associated with a service-connected spinal disability under an appropriate diagnostic code. See 38 C.F.R. § 4.71a. According to the September 2020 VA neck (cervical spine) examination questionnaire, the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The AOJ appropriately observed that this finding is inconsistent with several recent VA medical records. These records, mostly orthopedic surgery notes, describe neck pain with radiation to the upper back and left shoulder, and decreased sensation in the left thumb and index fingers. Accordingly, the AOJ requested an addendum report from the examiner to reconcile his report with this evidence. The examiner’s addendum reads, “I do not find an appropriate diagnosis of cervical radiculopathy.” This report is inadequate because the examiner did not explain the reasons for his conclusion. It is impossible for the reader to determine whether the post-remand examiner found that the VA orthopedic surgeons were mistaken in their diagnosis of cervical radiculopathy or whether the Veteran did experience symptoms of cervical radiculopathy intermittently, but that these symptoms were not present at the time of the September 2020 VA examination. The September 2020 cervical spine report also contains confusing information about range of motion during the testing methods required by 38 C.F.R. § 4.59 and Correia. Part 16(B) of the questionnaire indicates that the range of motion during passive range of motion testing was “Same as active [range of motion]” but part 16(C) indicates that passive range of motion testing could not be performed or was not medically appropriate. Under these circumstances, the September 2020 cervical spine report is inadequate. The Board must remand the increased rating claim for a new examination. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran’s VA treatment since September 2020. 2. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected cervical spine disability. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner who completes the questionnaire should determine the effective range of motion in the Veteran’s cervical spine, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of range of motion test results, in degrees, for both active and passive motion, and in weight bearing and nonweight-bearing To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, the examiner should describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the cervical spine during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the description of reduced range of motion during flares or repetitive use. The examination report must indicate whether the Veteran has cervical radiculopathy and, if so, should describe the associated symptoms and their severity. 3. Then, readjudicate the claim on appeal. 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