Citation Nr: 21024902 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-31 484 DATE: April 26, 2021 ORDER Prior to November 25, 2010, a total disability rating due to individual unemployability (TDIU) is denied. Beginning November 25, 2010, a TDIU is granted. Beginning June 6, 2011, special monthly compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. Prior to November 25, 2010, the Veteran was employed in substantially gainful employment, and there is no evidence that the employment was marginal or in a protected environment. 2. From November 25, 2010 to June 5, 2011, the Veteran was precluded from securing or following substantially gainful employment based on a combination of the service-connected coronary artery disease (CAD) and post-traumatic stress disorder (PTSD) disabilities. 3. Beginning June 6, 2011, the Veteran was precluded from securing or following substantially gainful employment based solely on the service-connected CAD. 4. Beginning June 6, 2011, the Veteran has now been awarded a TDIU based on the CAD alone and had combined additional disabilities rated at 60 percent or higher. CONCLUSIONS OF LAW 1. Prior to November 25, 2010, the criteria to establish a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. 2. Beginning November 25, 2010, the criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. 3. Beginning June 6, 2011, the criteria for SMC at the housebound rate have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to March 1968. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran waived a hearing before the Board, and he has not otherwise indicated he would like hearing on this issue since that time. As a procedural matter, the issue of whether a TDIU was warranted beginning June 6, 2011 was dismissed as moot in the February 2021 supplemental statement of the case (SSOC) as the Veteran was in receipt of a combined 100 percent disability rating. However, as discussed below, the issue of whether the Veteran is entitled to a TDIU is not moot. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation due to the service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. Webster’s II New College Dictionary 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 1. Prior to November 25, 2010, a total disability rating due to individual unemployability is denied. The Veteran initially asserted that he is precluded from securing or following substantially gainful employment due to the service-connected posttraumatic stress disorder (PTSD) and his coronary heart disabilities. See June 2011 VA Forms 21-8940. Prior to November 25, 2010, service connection was in effect for the following disabilities: Posttraumatic stress disorder (PTSD)(rated as 70 percent disabling, effective May 28, 2009); coronary artery disease (rated as 60 percent, effective September 1, 2009); tinnitus (rated as 10 percent disabling, effective May 28, 2009); and bilateral hearing loss (rated as 0 percent disabling, effective May 28, 2009). The Veteran has more than one disability with a total disability rating of 90 percent prior to November 25, 2010; thus, he met the minimum schedular requirements for a TDIU during this period on appeal. 38 C.F.R. § 4.16(a). The Veteran submitted a June 2011 VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran completed one year of high school. He reported his service-connected disabilities began affecting his full time employment in September 2010, and he last worked in November 2010 as a mechanic for approximately 50 hours per week. He made $89,000 in 2008 as a diesel mechanic, and he made $36,400.00 in the previous 12 months, which only included approximately 4 months of employment. See also December 2020 VA Form 21-8940. VA and private treatment records showed that he was working as a mechanic during this period on appeal. See, e.g., August 2009 private treatment records and December 2009 to October 2010 VA treatment records. The Veteran’s most recent employer submitted an October 2011 VA Form 21-4192, Request for Employment information in Connection with a Claim for Disability. The employer indicated the Veteran’s last day of employment was November 24, 2010, and he made $84,850.00 in the previous 12 months. His last paycheck was $1,200.00 and was paid on November 26, 2010. The Veteran’s most recent employer was an incorporation, and the VA Form 21-4192 was completed by a human resources employee. See August 2011 letter. After a review of the evidence, the Veteran maintained substantially gainful employment prior to November 25, 2010. He reported he worked full-time, approximately 50 hours per week. His employer reported the Veteran earned $84,850.00 in the year prior to November 25, 2010, which is well above the poverty threshold for one person. Furthermore, there is no evidence that his most recent employer was a protected environment, such as a family owned business or sheltered workshop. There is no indication that his employment was not substantial or not gainful. Prior to November 25, 2010, his service-connected disabilities clearly did not render him unable to secure and follow gainful employment, and the claim is denied for this period on appeal. The Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. From November 25, 2010 to June 5, 2011, a TDIU is granted. The Veteran asserted that he is precluded from securing or following substantially gainful employment due to the service-connected PTSD and CAD disabilities during this period on appeal. See June 2011 VA Forms 21-8940. Between November 25, 2010 and June 5, 2011, service connection was in effect for the following disabilities: PTSD (rated as 70 percent disabling, effective May 28, 2009); CAD (rated as 60 percent, effective September 1, 2009); tinnitus (rated as 10 percent disabling, effective May 28, 2009); and bilateral hearing loss (rated as 0 percent disabling, effective May 28, 2009). The Veteran has more than one disability with a combined disability rating of 90 percent with at least one disability rated at 40 percent or higher from November 25, 2010 to June 5, 2011. Turning to the evidence of record, the Veteran was afforded a VA heart examination in March 2010. The examiner, a physician, noted that three years earlier, the Veteran had essential hypertension and a myocardial infarction, which was treated with a 4-vessel coronary artery bypass graft. In July 2008, the Veteran had a stent placed in one of the occluded arteries. His symptoms included shortness of breath on exertion. He denied chest pain. An echocardiogram showed an ejection fraction of 50 percent, which was the equivalent of 6.7 METs. VA psychiatric treatment records between June 2009 and August 2010 noted the Veteran was irritable with his co-workers. The Veteran submitted a May 2011 prescription from Dr. M.R.A., his private treating cardiologist. Dr. M.R.A. wrote that the Veteran was unable to work due to symptoms of claudication, peripheral vascular disease (P.V.D), and angina pectoris. Of note, the Veteran was not awarded service connection for PVD of the bilateral lower extremities, secondary to the CAD, until June 6, 2011. In an August 2011 statement, the Veteran reported that he could no longer work because he could not walk very far, had shortness of breath, and had chest pain while climbing on machinery or carrying batteries, parts, or oil. His private physician recommended that he retire, or he risked having another heart attack. An August 2011 VA examination noted the Veteran continued to have shortness of breath, angina, and fatigue with any exertion. He could only walk two blocks before feeling fatigued. He also had difficulty climbing one flight of stairs. As to the psychiatric disability, the examiner, a physician, noted that the Veteran had an overall depressed mood, difficulty sleeping, nightmares, flashbacks, and difficulty concentrating due to the PTSD. The examiner also concluded the heart disability precluded the Veteran from working in a sustained labor-intensive job, but it would allow sedentary employment. His estimated METs level was 5.0. An August 2011 VA audiological examination noted the Veteran had difficulty hearing when not facing the speaker and had difficulty hearing when the speaker was too far away. An August 2011 VA psychiatric examination indicated the Veteran had PTSD and alcohol dependence secondary to the PTSD. His symptoms manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform satisfactorily with normal routine, self-care, and behavior. The Veteran had difficulty controlling his anger. He frequently had angry outbursts and emotional disconnection. He smashed and broke household items, but he denied physical violence. He had a history of frequent verbal outbursts when he worked but was not given a negative evaluation and had not lost a job due to his anger. The Veteran’s PTSD had symptoms of depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner noted that the Veteran’s level of functioning appeared to be similar to the previous examination. A September 2011 VA treatment record also reported the Veteran stopped working 10 months prior to this appointment after his doctor told him to stop working, or he would have another heart attack. As an initial matter, the combined effects of the service-connected heart and psychiatric disabilities warrant a TDIU. During this period on appeal, the Veteran’s CAD clearly prevented any labor-intensive employment. See March 2010 and August 2011 VA examinations. Furthermore, the service-connected PTSD, with symptoms of difficulty concentrating, difficulty sleeping, flashbacks, intermittent panic attacks once per week or less often, mild difficulty with short term memory, and difficulty in adapting to stressful circumstances, including work or a work-like setting, would preclude the Veteran from office type sedentary employment. Moreover, the Veteran has a 9th grade high school education, no GED, and his work history is only in labor-intensive employment. Thus, in light of his education and work history and considering the combination of the Veteran’s CAD and PTSD symptoms, the evidence is at least in equipoise as to whether the Veteran was precluded from securing and following substantially gainful employment from November 25, 2010 to June 5, 2011. In order to meet VA’s well-established duty to maximize a claimant’s benefits, the Board considered whether a TDIU could be granted based on the PTSD disability alone to warrant the award of SMC under 38 U.S.C. § 1114(s). Nevertheless, after considering the Veteran’s labor-intensive work history and skills, the PTSD alone does not preclude the Veteran from labor-intensive employment. Only when the combined effects of the PTSD and CAD disabilities are considered does the Veteran meet the criteria for a TDIU during this period on appeal. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Beginning June 6, 2011, a TDIU is granted. Beginning June 6, 2011, in addition to the disabilities listed above, the Veteran was also service connected for PVD of the left lower extremity (rated at 60 percent, effective June 6, 2011) and PVD of the right lower extremity (rated at 40 percent, effective June 6, 2011). As of June 6, 2011, the Veteran’s combined disability rating for all service-connected disabilities was 100 percent. 38 C.F.R. § 4.16(a). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, in this case, whether the Veteran is entitled to a TDIU beginning June 6, 2011 is not moot, and the Board will consider whether he is entitled to a TDIU based on a single disability, solely for the purpose of determining whether the Veteran is entitled to benefits under 38 U.S.C. § 1114(s). As an initial matter, the Veteran’s CAD and PVD disabilities, when considered as a single cardiovascular disability under 38 C.F.R. § 4.16(a)(3), meet the schedular criteria alone to support an award of a TDIU. A May 2011 note from Dr. M.R.A., the Veteran’s treating private cardiologist, asserted that the Veteran was unable to work due to symptomatic claudication, peripheral vascular disease, and angina pectoris. An August 2011 VA heart examination noted the Veteran had coronary artery disease with bypass grafting and a quadruple bypass in 2008. Since then, the Veteran had not required any further procedures. He was being followed by a private cardiologist for treatment. He continued to have shortness of breath, angina, and fatigue with exertion. He could only walk 2 blocks before he felt fatigued. He had difficulty climbing 1 flight of stairs. The examiner indicated the Veteran would be precluded from physically labor-intensive work but would be able to perform sedentary work. His estimated METs had been reduced to 5.0. In an August 2011 statement, the Veteran reported that he could no longer work because he could not walk very far, had shortness of breath, and chest pain while climbing on machinery or carrying batteries, parts, or oil at his former job. His physician had recommended that he retire or risk having another heart attack. A September 2011 statement from the Veteran’s private physician asserted the ischemic artery disease was severe the left calf, ankle, and toe. In addition, it was mild in the right calf and severe in the right toe. His physician concluded this condition made the Veteran too disabled to work. A September 2011 VA treatment record noted the Veteran stopped working 10 months prior to this appointment after his doctor told him he had to stop working or he would have another heart attack. In a September 2011 statements the Veteran reported that he left work due to shortness of breath, chest pain, and difficulty walking. An October 2011 VA examination of the arteries and veins showed the Veteran had peripheral vascular disease in both lower legs. He had undergone surgery for the condition in April 2005 in the left leg. As of the date of this examination, he had claudication in the right leg when walking more than 100 yards and claudication in the left leg when walking 25 to 100 yards. He occasionally used a cane. He also had absent pedal pulses. His right ankle/brachial index was 1.10 and left ankle/brachial index was 1.01 in November 2008. The examiner noted the Veteran was unable to walk more than a few yards before having pain in his legs. A May 2012 VA treatment record noted the Veteran had chronic substernal chest pressure and burning when doing physical work. The Veteran’s attorney asserted in a September 2012 letter that the Veteran was unable to follow substantially gainful employment due to the CAD and PTSD symptoms. In the September 2015 VA Form 9, the Veteran’s attorney asserted that the Veteran was unemployable solely based on either the CAD or the PTSD. In December 2018 the Veteran underwent another VA heart examination. The examiner noted that the Veteran was diagnosed with CAD and had undergone a coronary artery bypass graft in 2008. Furthermore, the examiner noted that in 2005 the Veteran had a left lower extremity stent placed and was prescribed blood thinners. The examiner noted that two weeks prior to the examination, the Veteran had undergone a stress test/echocardiogram. The echocardiogram revealed left ventricular ejection fraction remained 50 percent. The examiner further noted that the Veteran reported exertional dyspnea with exercise, but that the Veteran did not have congestive heart failure. A chest x-ray study revealed no significant interval change with no acute pulmonary process. Upon examination, the examiner noted that an exercise stress test was not completed during the examination because of the PVD and angina with exertion. However, the examiner assessed the Veteran with an interview based METs test and concluded the Veteran was capable of a workload of greater than 5 but less than 7 METS, which was consistent with activities such as walking a flight of stairs, golfing without a cart, mowing a lawn with a push mower, and heavy yard work. Finally, the examiner found that the Veteran’s CAD would not impact his ability to work, but no explanation for this conclusion was provided. Based on the evidence, both lay and medical, the evidence is at least in equipoise that the Veteran’s CAD and PVD alone, when considered as one cardiovascular disability under 38 C.F.R. § 4.16(a)(3), would preclude the Veteran from physical employment during this period on appeal. The December 2018 VA medical opinion asserting otherwise contained no supporting rationale and failed to discuss the Veteran’s education and employment history. Thus, the December 2018 VA medical opinion as to the impact of the CAD on the Veteran’s ability to work is inadequate and is assigned no probative weight. Considering the Veteran’s limited education, no GED, and a work history solely in labor intensive fields, the Board finds that the Veteran was prohibited from securing and following substantially gainful employment beginning June 6, 2011 based solely on his service-connected cardiovascular disabilities. The Veteran’s attorney asserted in an April 2019 brief that it was a violation of Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) to adjudicate whether the Veteran meets the criteria of a TDIU without a competent medical opinion or industrial survey. Nevertheless, the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one, but rather a determination that must be made by an adjudicator. See Geib v. Shinseki, 733 Fed.3d 1350, 1354 (Fed. Cir. 2013) (interpreting 38 C.F.R. § 4.16 (a)). A remand is not warranted for an industrial survey as requested by the Veteran’s attorney because the current evidence of record is sufficient to adjudicate the claim. The Board acknowledges the Veteran’s contention that the PTSD disability also prevented him from working. However, in consideration of VA’s “well-established” duty to maximize a claimant’s benefits, and resolving any doubt in favor of the Veteran, the cardiovascular disabilities alone support the award of a TDIU, and allows for an additional award of SMC, which is discussed below. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). Finally, the Board notes that neither the Veteran nor his attorney raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 4. Beginning June 6, 2011, entitlement to special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) is granted. As the Veteran has now been awarded a TDIU herein beginning June 6, 2011 based solely on the cardiac disabilities, the TDIU meets the criteria for a single service-connected disability rated as totally disabling for 38 U.S.C. § 1114(s). See also 38 C.F.R. § 4.16(a)(3). The Veteran is also service-connected for PTSD, hearing loss, tinnitus, and a scar, which have a combined disability rating of at least 60 percent. Therefore, SMC at the housebound rate is granted beginning June 6, 2011. 38 U.S.C. § 1114(s)(1). Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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