Citation Nr: 21024600 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 13-06 880 DATE: April 23, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to PTSD with depression, is denied. Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on unemployability (TDIU) for the period prior to June 13, 2016 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s sleep apnea did not begin in and is not otherwise related to service; sleep apnea is not caused or aggravated by service connected PTSD with depression. 2. The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level VII in the right ear and no worse than Level VII in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, including as secondary to PTSD with depression, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.310 (2019). 2. The criteria for a rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1980 to January 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before the Board in April 2018 and in May 2020. Service Connection Establishing service connection generally requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established on a secondary basis when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The competence, credibility, and probative weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for sleep apnea, to include as secondary to PTSD with depression The Veteran contends that his sleep apnea disability is caused or aggravated by his service-connected PTSD with depression. See June 2017 statement. In the alternative, he claims his sleep apnea is directly related to service. See October 2020 VA examination. The question for the Board is whether the Veteran has a current disability that is either directly related to service, or is proximately due to or the result of, or is aggravated beyond its natural progress by, his service-connected PTSD with depressive disorder. The Veteran’s records reflect a diagnosis of sleep apnea diagnosed November 2016. See VA medical records. Therefore, the first Shedden / Allen element is met. Review of the Veteran’s service treatment records reflects that the Veteran had no complaints, treatment or diagnosis of sleep apnea or relative symptomatology in service. In this regard, the Veteran’s medical separation examination of October 1981 shows that his nose, sinuses, mouth and throat, lungs and chest were all clinically evaluated to be normal. In fact, the associated report of medical history shows that the Veteran himself denied ever having had either shortness of breath or frequent trouble sleeping. Review of the Veteran’s post-service treatment records reflects that he was first diagnosed with sleep apnea in November 2016, over 34 years after separation from service. The Veteran was afforded a VA examination in April 2019. Pertinently, the examiner opined that the Veteran’s sleep apnea is not incurred in or caused by service. The examiner reasoned that the Veteran denied any trouble sleeping at separation from service, that there was no evidence of complaints, symptoms or diagnosis of sleep apnea in service records, and that he was diagnosed in 2016 with obstructive sleep apnea, 34 years after discharge. An additional opinion dated in August 2020 was obtained and is of record. The examiner again opined that the Veteran’s sleep apnea is less likely than not incurred in or caused by service. It was reasoned again that the Veteran was first diagnosed with obstructive sleep apnea in November 2016, more than 30 years after discharge from service, and that records were silent for obstructive sleep apnea while on active duty. A different VA examiner provided an opinion in October 2020. This examiner opined that the Veteran’s sleep apnea was less likely than not related to service. It was reasoned that sleep apnea developed following separation; that there was no supportive evidence in service records and post-service records of sleep apnea while in service; and though the Veteran’s lay statements were considered, no lay person is competent to determine the presence or absence of sleep apnea in themselves, as the condition by definition occurs while they are asleep. After a review of the record, the Board finds that while post service treatment records show the Veteran has a diagnosis of obstructive sleep apnea, the weight of the evidence establishes that this condition did not have its onset during active service. In that vein, service treatment records do not reflect any complaints, findings, diagnoses or treatment related to obstructive sleep apnea. Moreover, the record shows the Veteran was first diagnosed with sleep apnea in November 2016, 34 years after separation from service. The Board further notes that there is no positive nexus opinion of record regarding direct service connection between sleep apnea and the Veteran’s service. While the Board acknowledges the Veteran’s reports that he has had sleep apnea symptoms since service, his reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. To wit, as previously noted, the Veteran denied having had any sleep trouble at separation from service, and the first post-service treatment and diagnosis of sleep apnea is in 2016, 34 years later. In fact, the Veteran clarified to the Board that his claim of entitlement to service connection for sleep apnea is as secondary to his service-connected PTSD in a June 2017 statement – yet reiterated the contention that his sleep apnea began in 1982 in the October 2020 VA examination. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). There is no evidence of sleep apnea onset in service, or any complaints, treatment or diagnosis until over three decades after separation, and the entirety of the relevant medical record, including VA examinations, reflects consistent and negative etiological opinions. Therefore, service connection on a direct basis is denied. The Board will now turn to adjudication of the sleep apnea claim on a secondary basis. In that connection, the crux of the Veteran’s argument for service connection is based on a secondary causal connection with his PTSD. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by, his PTSD with depression. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). During the April 2019 VA examination, the examiner opined that the Veteran’s PTSD did not cause or aggravate his current sleep apnea. The examiner provided the rationale that the interactions between anxiety and sleep apnea are poorly understood – though there are shared risk factors and relationships that differ across severity, sex, and age. The examiner explained that obstructive sleep apnea is caused by repetitive bouts of upper airway obstruction during sleep as a result of the narrowing of respiratory passages. The examiner differentiated obstructive sleep apnea with the less common sleep apnea caused by an imbalance in the brain’s respiratory controls during sleep – indicating that obstructive sleep apnea is thought to be multifactorial with a major role played by anatomic defects. The examiner cited medical studies in support of these claims. Because the Board found the aforementioned opinion to be inadequate for adjudication purposes in a May 2020 VA remand, an additional opinion dated in August 2020 was obtained and is of record. The examiner again opined that the Veteran’s PTSD did not cause or aggravate his current sleep apnea. The examiner provided the rationale that though some studies suggest a mutual relationship, the mechanism of the relationship between obstructive sleep apnea and PTSD and depression is complex and remains unclear. A different VA examiner provided an opinion in October 2020. This examiner also opined that the Veteran’s PTSD did not cause or aggravate his current sleep apnea. It was reasoned that although an association between the two conditions of sleep apnea and PTSD has been clearly established, a causal relationship does not exist. Sleep apnea is due to mechanical obstruction of the upper airway, while PTSD is a mental health condition which does not directly influence upper airway anatomy or dynamics. Although recent studies have found PTSD to be a risk factor for obstructive sleep apnea, it is neither necessary nor sufficient to cause sleep apnea in and of itself. In December 2020, the same examiner offered another addendum to her prior opinion, after having reviewed evidence associated to the record by the Veteran and his representative, including an article entitled Sleep Disorders in US Military Personnel: A High Rate of Comorbid Insomnia and Obstructive Sleep Apnea. The examiner noted that the findings of the aforementioned article cite the comorbidity, and an association between PTSD and obstructive sleep apnea was acknowledged in the medical literature. The examiner pointed out, however, that a recent scientific study published in the journal Sleep definitively clarified this association. This medical journal, which she noted is widely acknowledged as the premiere journal in the specialty of sleep disorders medicine, and thus carries a higher weight of evidence in the scientific/medical community, specifically found that “Posttraumatic Stress Disorder is associated with poorer sleep specific quality of life, but not with Sleep Apnea.” In April 2020 and in September 2020, the Veteran’s representative submitted responses to the March 2020 Supplemental Statement of the Case and a brief in support of the claim respectively. In the April 2020 response, it was contended that the Veteran’s sleep apnea was aggravated beyond its natural progression by his service-connected PTSD. In support of the contention, medical literature was also submitted, including an NIH study of young military personnel concluding that there is a possibility that prolonged sleep deprivation along with fragmentation and hyperarousal due to the physical and psychologic stressors of combat contributed to the pathogenesis of not only insomnia, but obstructive sleep apnea as well. The Board acknowledges the Veteran’s own lay statements of record as well as his representative’s arguments set forth in the multiple correspondences of record. However, the Board notes that neither the aforementioned studies submitted in support of the claim nor any other medical documentation of record concludes that there is a causal relationship between the Veteran’s psychiatric disability and sleep apnea, or any aggravation of it. Though a high prevalence of sleep disturbance and obstructive sleep apnea was found in young Veterans with PTSD, both the referenced medical journal articles note that further study and sleep research is necessary before such a relationship can be established. The Board thus finds that the most probative evidence of record demonstrates that the Veteran’s sleep apnea is not caused or aggravated by his service-connected PTSD and depression. The October 2020 VA opinion, along with the December 2020 addendum considering the medical literature submitted by the Veteran, considered both examination and review of the relevant medical records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Additionally, the examiner provided supporting explanation for the rendered opinions. The Board thus accords significant probative value to these opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that a mere medical conclusion is insufficient to permit the Board to make an informed decision regarding the probative value of that opinion). To the extent that the Veteran has related his current sleep apnea to his PTSD, he is not competent to provide such etiological opinion. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). This is because the determining the etiology, including causation and aggravation, of an internal medical condition such as sleep apnea, is a complex medical determination for which the Veteran is not qualified. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Moreover, any testimony in this regard is outweighed by the specific findings of the VA examiners. As such, the criteria for both direct and secondary service connection have not been met and the Veteran’s claim is denied. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 2. Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss The Veteran’s bilateral hearing loss is evaluated as 40 percent disabling, effective from February 25, 2013, the date of his claim for increase. The Veteran contends he is entitled to a higher evaluation. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran underwent a VA audiological examination in March 2012. This VA examination reveals that the Veteran reported having difficulty communicating with his co-workers and with individuals over the phone. He further reported being unable to keep a conversation without asking others to repeat themselves and needing to turn the television volume up loud so he can hear it clearly. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 70 70 70 65 68.75 100 LEFT 75 75 75 85 77.5 84 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level V in the right ear and level VII in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating for the right and left ears. A November 2017 VA examination reveals that the Veteran reported being unable to hear accurate orders and instructions at work, as well as making mistakes which have produced conflicts with supervisors. He also stated his hearing loss affected his social quality of life as he cannot hear and understand family or friends easily. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 80 80 80 80 80 64 LEFT 85 80 80 80 81 62 Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level VII in the right ear and level VII in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. Here, both Table VI and Table VIA yield the same results for both ears. The Veteran was afforded another VA audiological examination in August 2020. This VA examination reveals that the Veteran reported being unable to keep his employment due to inability to hear instructions, orders and work details. He further reported being unable to keep a conversation without asking others to repeat themselves. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 80 80 85 80 81.25 76 LEFT 80 80 85 80 81.25 76 Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level VII in the right ear and level VII in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating for the right and left ears. The Veteran was afforded another VA audiological examination in September 2020. This VA examination reflects that the Veteran reported being unable to communicate with his family, having to raise the television and radio volume, and being suspended from work due to hearing trouble. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 80 80 85 80 81 94 LEFT 85 80 80 80 81 96 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level VII in the right ear and level VII in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating for the right and left ears. A review of VA medical records fails to show any other qualifying audiograms for the appeal period. Based on the evidence above, the Board concludes that a rating in excess of 40 percent for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reported inability to hear and severe difficulty with conversations and communications at work and with family and friends. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Further, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 40 percent for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a total disability rating based on unemployability (TDIU) for the period prior to June 13, 2016 is remanded. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where the threshold minimum percentage standards in 38 C.F.R. § 4.16(a) are not met, but the Veteran is determined to be unable to secure or follow a substantially gainful occupation by reason of service-connected disability, the rating boards should refer the claims file to the Director of Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.1 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran concedes and the Board notes that for the period prior to June 13, 2016, the Veteran does not meet the schedular criteria for assignment of a TDIU. See February 2021 attorney brief. The Veteran requests entitlement to a TDIU effective from February 25, 2013, to include on an extraschedular basis. Id. In support of this claim, the Veteran has submitted the opinion of a vocational expert, who opines that his bilateral hearing loss and tinnitus preclude his ability to sustain pace and productivity as well as ability to communicate – traits required in all competitive employment. The Board also notes the Veteran’s own statement that he last worked full time in August 2018. See January 2018 VA form 21-8940. The Board finds that the evidence is unclear as to whether the Veteran was unable to obtain or engage in substantially gainful employment prior to June 13, 2016. However, as there is evidence that the Veteran may have been unable to work due to his service-connected hearing loss and tinnitus disabilities prior to June 13, 2016, the claim is referred to the Director, Compensation Service, for extraschedular consideration. The matters are REMANDED for the following action: Refer the case to the Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Comninos, Georgio 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