Citation Nr: 21021284 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-17 476 DATE: April 12, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to survivors’ pension benefits is denied. FINDINGS OF FACT 1. The Veteran passed away in February 2006. His death certificate lists the immediate cause of death as sepsis, with blast crisis leukemia and chronic myelogenous leukemia as underlying causes of death. 2. At the time of death, the Veteran was not service connected for any disabilities. 3. The evidence indicates that the Veteran’s cause of death was not manifested during a period of active military service and it has not otherwise been shown to be related to active military service, to include exposure to herbicide agents. 4. The Appellant has excessive income to qualify for VA survivor’s pension benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2020). 2. The criteria for entitlement to VA survivors’ pension benefits have not been met. 38 U.S.C. § 1541 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1968 to January 1970. During his period of service, he earned the National Defense Service Medal, Vietnam Service Medal, Air Medal, and Expert Badge (M-14). The Veteran died in February 2006. The Appellant is his surviving spouse. This case was previously before the Board in July 2019 and remanded for additional development. 1. Entitlement to service connection for the cause of the Veteran’s death Death benefits are payable to the surviving spouse, children, and parents of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310. In order to establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active military service either caused or contributed substantially or materially to the veteran’s demise. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and a veteran’s death. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012), 38 C.F.R. § 3.303 (2020). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Certain diseases have been determined to be associated with the use of herbicides in Vietnam and VA regulations identify those diseases that are presumptively associated with herbicide exposure in Vietnam. 38 C.F.R. § 3.309(e). Hypertension is not a disease identified as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). However, the statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration. In this case, the Veteran’s certificate of death reflects that he died in February 2006. The immediate cause of death was listed as sepsis. Blast crisis leukemia and chronic myelogenous leukemia are listed as underlying causes of death. At the time of his death, the Veteran was not service connected for any disability. The Appellant contends that the Veteran’s chronic myelogenous leukemia and blast crisis leukemia were related to the Veteran’s military service, to include exposure to herbicide agents. As the Veteran served within the Republic of Vietnam during the Vietnam Era, his exposure to herbicides in service is presumed. 38 C.F.R. § 3.307(a)(6). Blast crisis leukemia and chronic myelogenous leukemia, however, are not diseases presumed due to herbicide exposure, and service connection cannot be granted on that presumptive basis. 38 C.F.R. § 3.309(e). Even though service connection is not warranted on a presumptive basis, the Board must consider whether service connection is warranted on any other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Upon careful and compassionate review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s blast crisis leukemia and chronic myelogenous leukemia were etiologically related to service. The Veteran’s service treatment records do not reflect a diagnosis of, or complaints related to, blast crisis leukemia and chronic myelogenous leukemia during his period of active service. Further, the Veteran’s post-service treatment records do not document a diagnosis of blast crisis leukemia and chronic myelogenous leukemia within one year of active duty service. A private medical opinion was associated with the claims file in October 2014. Dr. D. D. explained that the Veteran was diagnosed with chronic myelogenous leukemia in June 2005. The Veteran eventually developed advanced disease with transformation of leukemia to acute myelogenous leukemia. He also developed glucose abnormalities related to steroid use, as well as other complications and severe infections which led to his death in 2006. Dr. D. D. stated that it was not known whether service-related exposures may have contributed to the Veteran’s illness, but it was possible. In October 2014, the appellant submitted an article addressing a possible link between leukemia and Agent Orange. A VA medical opinion was obtained in May 2016 to evaluate whether the Veteran’s chronic myelogenous leukemia was related to service, to include exposure to herbicide agents. Having reviewed the available records, the VA examiner opined that the Veteran’s chronic myelogenous leukemia was less likely than not incurred in or caused by service. In support of the opinion, the VA examiner indicated that review of the Veteran’s service treatment records did not reveal evidence of chronic myelogenous leukemia during service. Pursuant to the July 2019 Board remand, a VA medical opinion was obtained in September 2019 to evaluate whether the Veteran’s chronic myelogenous leukemia and blast crisis leukemia were due to service, to include exposure to herbicide agents. Having reviewed the available records, the VA examiner opined that the Veteran’s chronic myelogenous leukemia with blast crisis and conversion to acute myelogenous leukemia was less likely than not incurred in or caused by service, to include exposure to herbicide agents. In support of the opinion, the VA examiner noted that this form of cancer was not on the presumptive list of conditions attributable to herbicide exposure. He also cited the “Veterans and Agent Orange: Update 2012” as indicating there was insufficient evidence to currently show a link between Agent Orange and the development of certain leukemias, such as acute myeloid leukemia (AML) and chronic myelogenous leukemia (CML). The VA examiner also cited to medical literature which explained that chronic myelogenous leukemia occurs when something goes awry in the genes of bone marrow cells. While it was not clear what initially sets off this process, the VA examiner noted that doctors had discovered how chronic myelogenous leukemia progressed. He explained that the chromosomes in the blood cells swapped sections with each other in people with chronic myelogenous leukemia. Particularly, a section of chromosome 9 switches places with a section of chromosome 22, creating an extra-short chromosome 22 and an extra-long chromosome 9. Genes from chromosome 9 combine with genes from chromosome 22 to create a new gene called BCR-ABL, which contains instructions that tell the abnormal blood cell to produce too much of a protein called tyrosine kinase that promotes cancer by allowing certain blood cells to grow out of control. Noted risk factors that increased the risk of chronic myelogenous leukemia were older age, being male, and radiation exposure, such as radiation therapy for certain types of cancer. The VA examiner explained that medical literature did not find chronic myelogenous leukemia to be caused by Agent Orange. In reviewing the evidence of record, the Board finds that the most probative evidence of record weighs against the claim of entitlement to service connection for the Veteran’s cause of death. The Board acknowledges the private nexus opinion associated with the record in October 2014; however, however, the opinion is couched in speculative language and therefore has limited probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board also acknowledges the article addressing a possible link between leukemia and Agent Orange submitted by the appellant in October 2014. However, the article provides general information only, and does not specifically address the Veteran’s history. Therefore, it is of minimal probative value. The Board finds the September 2019 VA medical opinion to be the most probative evidence of record, as the examiner based his opinion on a detailed review of the Veteran’s in-service treatment records, post-service medical records, and review of relevant medical studies and literature. Consideration has also been given to the Appellant’s contentions that the Veteran’s blast crisis leukemia and chronic myelogenous leukemia were related to his active service, to include exposure to herbicide agents. The Board acknowledges the Appellant’s sincere belief as to etiology; however, the evidence does not show that the Appellant has the requisite medical training or credentials that would make her competent to render such a complex medical opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Board is sympathetic to the Appellant’s claim, the preponderance of the evidence is against the Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death under any available theory of entitlement. Accordingly, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Appellant’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Pension 2. Entitlement to VA survivors’ pension benefits Survivors’ pension benefits are generally available for surviving spouses as a result of the Veteran’s nonservice-connected death. 38 U.S.C. § 1541(a). Basic entitlement exists if (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 C.F.R. § 3.3(b)(4). Here, the Veteran served in the United States Army from January 1968 to January 1970. Accordingly, the Veteran served for longer than 90 days during the Vietnam War era, thus meeting the service requirement for improved death pension. Therefore, the first two requirements for improved death pension are satisfied. The remaining question is whether the Appellant’s income exceeds the MAPR. The MAPR is published in Appendix BVA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.24. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 3 8C.F.R. §§3.3, 3.23(b). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were “in excess of 5 percent of the applicable maximum annual pension rate or rates... as in effect during the 12-month annualization period in which the medical expenses were paid.” 38 C.F.R. § 3.272(g)(1)(iii). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the surviving spouse received no reimbursement, such as through an insurance company. However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. For the purpose of determining initial entitlement, or resuming payments on an award that was previously discontinued, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a). In essence, VA subtracts the total amount of countable income in one year, less excluded income, from the MAPR for that year; then, if a positive amount remains, the rest is divided by twelve to determine the monthly death pension benefit. When a change in the MAPR occurs, VA repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273(b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. 38 C.F.R. § 3.273(b)(2). The MAPR for a surviving spouse with no dependents was $8,359.00, effective December 1, 2012. At the time of her September 2013 formal application for survivors’ pension benefits, the Appellant failed to provide any information regarding net worth, gross monthly income, and expected income. However, an October 2013 Social Security Administration (SSA) inquiry shows that benefits were paid at a rate of $1,587.00 per month. She did not report any unreimbursed medical expenses or other excludable income which could be used to reduce her annual income. Accordingly, the Appellant’s annual countable income was at least $19,044, which exceeded the MAPR for a surviving spouse with no dependents for 2013. By an October 2013 determination, the Agency of Original Jurisdiction (AOJ) informed the Appellant that the issue of entitlement to survivors’ pension benefits could not be addressed at that time for failure to complete the portion of the application pertaining to income and net worth. The AOJ also requested that she submit a VA Form 21-0518-1 (Eligibility Verification Report) for her claim to be considered. Effective December 1, 2013, the MAPR for a surviving spouse with no dependents was $8,485.00. On her October 2014 VA Form 21-0518-1 (Eligibility Verification Report), the Appellant identified receiving $11,117.33 in gross wages from all employment for the period from January 1, 2014 to June 30, 2014 and SSA benefits in the amount of $1,388.40 per month. As to assets, the Appellant reported $500.00 in cash/noninterest-bearing bank accounts, $1,500 in interest-bearing bank accounts and $37,000.00 in IRAs, Keogh plans, etc. A December 2015 SSA inquiry shows that benefits were paid at a rate of $1,611.00 per month (or $19,332.00 annually) prior to monthly deduction of a supplemental medical insurance (SMI) premium of $135.50. Because unreimbursed medical expenses are only deducted when they are in excess of five percent of the applicable MAPR, the Board has calculated the Appellant’s annualized income based on the benefit amount shown in the SSA Inquiry prior to any SMI premium deduction. Therefore, the Appellant had a total annualized countable income of $30,449.33. Unreimbursed medical expenses included Medicare insurance premiums in the amount of $104.90 per month, which totaled $1,258.80 annually. No additional information regarding unreimbursed medical expenses was provided. When reduced by five percent of the MAPR (or $424.00), the allowable medical expenses are $834.80. Accordingly, the Appellant’s countable income was $29,614.53, which exceeded the MAPR for a surviving spouse with no dependents. The Board notes that the Appellant has not provided further income, net worth or medical expense information. However, even assuming the Appellant only received SSA income, she continued to have excessive income for purposes of establishing entitlement to survivors’ pension benefits. Effective December 1, 2014, the MAPR for a surviving spouse with no dependents was $8,630.00. The MAPR did not increase again until 2016. A December 2015 SSA inquiry shows that benefits were paid at a rate of $1,637.90 per month (or $19,654.80 annually) for calendar years 2015 and 2016 prior to monthly deduction of a SMI premium of $104.90 per month (or $1,258.80 annually), assuming the premium amount remained unchanged. No additional information regarding unreimbursed medical expenses was provided. When reduced by five percent of the MAPR (or $431.00), the allowable medical expenses are $827.80. Accordingly, the Appellant’s countable income was $18,827.00, which exceeded the MAPR for a surviving spouse with no dependents. Effective December 1, 2016, the MAPR for a surviving spouse with no dependents was $8,656.00. An August 2019 SSA inquiry shows that benefits were paid at a rate of $1,643.00 per month (or $19,716.00 annually) prior to monthly deduction of a SMI premium of $135.50 per month (or $1,626.00 annually). No additional information regarding unreimbursed medical expenses was provided. When reduced by five percent of the MAPR (or $432.00), the allowable medical expenses are $1194.00. Accordingly, the Appellant’s countable income was $18,522.00, which exceeded the MAPR for a surviving spouse with no dependents. Effective December 1, 2017, the MAPR for a surviving spouse with no dependents was $8,830.00. An August 2019 SSA inquiry shows that benefits were paid at a rate of $1,676.00 per month (or $20,112.00 annually) prior to monthly deduction of a SMI premium of $135.50 per month (or $1,626.00 annually). No additional information regarding unreimbursed medical expenses was provided. When reduced by five percent of the MAPR (or $442.00), the allowable medical expenses are $1184.00. Accordingly, the Appellant’s countable income was $18,928.00, which exceeded the MAPR for a surviving spouse with no dependents. Effective December 1, 2018, the MAPR for a surviving spouse with no dependents was $9,078.00. An August 2019 SSA inquiry shows that benefits were paid at a rate of $1,722.50 per month (or $20,670.00 annually) prior to monthly deduction of a SMI premium of $135.50 per month (or $1,626.00 annually). No additional information regarding unreimbursed medical expenses was provided. When reduced by five percent of the MAPR (or $453.00), the allowable medical expenses are $1173.00. Accordingly, the Appellant’s countable income was $19,497.00, which exceeded the MAPR for a surviving spouse with no dependents. Pursuant to the February 2019 Board remand, the Appellant was requested to provide her income, net worth, and medical expense information for August 27, 2013 to December 31, 2013, as well as calendar years 2014, 2015, 2016, 2017, 2018 and 2019 by an August 2019 duty to assist letter. In the October 2019 supplemental statement of the case (SSOC), the denial of the Appellant’s claim was continued, as she failed to respond to VA’s February 2019 request for information. Accordingly, a determination could not be made as to her eligibility for pension benefits. As a condition of granting or continuing pension, VA may require from any person who is an applicant for or a recipient of pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person. 38 C.F.R. § 3.277(a). Where the law places the burden on the appellant to produce evidence necessary for VA to determine whether an award of benefits may be properly made but does not specifically identify the kind of evidence required to establish entitlement, it is left to VA’s discretion on a case-by-case basis to determine what information and evidence is needed and it is not an arbitrary and capricious exercise of that discretion to require the claimant to submit the requested information and evidence prior to adjudicating the application for benefits. See Caranto v. Brown, 4 Vet. App. 516, 519 (1993). The Board reiterates that additional information regarding the Appellant’s income, net worth and unreimbursed medical expenses has not been received to date. Accordingly, the Appellant’s failure to provide the requested information makes it impossible for VA to otherwise determine her pension eligibility. The Board advises the Appellant that the duty to assist is a two-way street and the Appellant had a duty to aid VA in developing her claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In consideration of the foregoing, based on the record before it, the Board must deny the Appellant’s claim of entitlement to survivors’ pension benefits. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Appellant’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tracy O. Joseph, 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