Citation Nr: 21024977 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-57 717 DATE: April 27, 2021 ORDER A 70 percent rating, but no higher, for persistent depressive disorder (PDD) prior to January 23, 2019 is granted. A rating in excess of 70 percent for PDD and unspecified anxiety disorder from January 23, 2019 is denied. A total disability rating based on individual unemployability (TDIU) prior to January 23, 2019 is denied. REMANDED Entitlement to TDIU for the period beginning November 30, 2019 is remanded. FINDINGS OF FACT 1. For the period before January 23, 2019, the Veteran’s psychiatric symptoms included suicidal ideation. 2. For the period from January 23, 2019, the Veteran’s psychiatric symptoms do not more nearly approximate total occupation and social impairment. 3. The evidence of record is against a finding that the Veteran’s service-connected disabilities precluded him from securing and following substantially gainful employment for the period before January 23, 2019. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 70 percent, but no higher, for PDD for the period prior to January 23, 2019, are met. 38 U.S.C. § 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.10, 4.130, Diagnostic Code (DC) 9433. 2. The criteria for a rating in excess of 70 percent for PDD and unspecified anxiety disorder for the period from January 23, 2019, are not met. 38 U.S.C. § 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.10, 4.130, DC 9433. 3. The criteria for award of TDIU for the period prior to January 23, 2019 are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1999 to August 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2019, when it was remanded for further development to include identifying and obtaining any pertinent, outstanding VA and private treatment records and associating those records with the claims file and then readjudicating the issues on appeal. Additional VA treatment records were added to the claims file in December 2019. The VA also requested in January 2020 correspondence that the Veteran identify any additional private treatment providers and included a blank VA Form 21-4142 Authorization to Disclose Information and VA Form 21-4142a, General Release for Medial Provider Information. VA requested identified private treatment records on behalf of the Veteran in January 2020. The Board notes that, to the full extent possible, VA complied with the remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has returned to the Board for further appellate review. While this appeal was still pending, a September 2020 rating decision increased the Veteran’s disability rating for PDD to 70 percent, effective January 23, 2019. As the RO did not assign the maximum disability rating possible or assign this rating back to the effective date of the grant of service connection, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board also notes that the September 2020 rating decision granted entitlement to TDIU for the period from January 23, 2019 to November 30, 2019. This decision constituted a partial grant of the benefits sought on appeal. As entitlement to TDIU was not granted for the entire period of appeal, this claim also remains before the Board. Id. Increased rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give medical reports precedence over current findings. See Francisco v. Brown,7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. See Peyton v. Derwinski, 1 Vet. App. 282 (1991). Rating specialists are directed to review the recorded history of a disability to make a more accurate evaluation, however, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Any doubt regarding the extent of the disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 1. Entitlement to a rating of 70 percent, but no more, for PDD prior to January 23, 2019. The Veteran contends that his service connected PDD is more severe than contemplated by the initially assigned 30 percent disability rating. See October 2017 Notice of Disagreement (NOD). After a thorough review of the evidence, the Board finds that a 70 percent rating, but no more, is warranted for the period before January 23, 2019. Evaluations under 38 C.F.R. § 4.130 are “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Mental health disorders are rated under the General Rating Formula for Mental Disorders (General Rating Formula). The symptoms listed in General Rating Formula are not intended to constitute an exhaustive list, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas”- i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, supra at 117-18; 38 C.F.R. § 4.130, DC 9433. Under the General Rating Formula for mental disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating the level of disability arising from a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). However, the rating agency shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the perspective of the Veteran working or seeking work. 38 C.F.R. § 4.2. Post service treatment records predating the current claim reveal the Veteran expressed suicidal ideation as early as a June 2009 primary care record noting that the Veteran experiences frequent suicidal or homicidal ideation but denied any plans or previous suicide attempts. In addition, a June 2009 suicide safety plan notes that medications and firearms in the Veteran’s possession have been secured or removed. The Veteran acknowledged suicidal ideation in a September 2009 Statement in support of claim for service connection for posttraumatic stress disorder (PTSD). An October 2009 VA social work note reveals the Veteran reported suicidal ideation but indicated he feels it has resolved. A December 2012 primary care record noted the Veteran denied suicidal ideation. The same record also notes that the Veteran’s guns were previously removed, and the Veteran acknowledged a suicide plan that included firearms. However, the Veteran reported current suicidal risk as level one. In separate January 2013 VA psychiatry treatment and social work counseling records the Veteran denied suicidal and homicidal ideation. The Veteran also denied suicidal ideation in an April 2013 psychiatry record. The record also noted the Veteran denied problems with depression and characterized his mood as 8/10. A July 2014 VA emergency department triage record included a suicide risk assessment wherein the Veteran admitted feeling hopeless about the present/future and acknowledged he should call mental health and set up an appointment – he just hadn’t gotten to it yet. The Veteran also denied suicidal ideation within the past 12 months. A January 2015 mental health record noted that the Veteran reported current symptoms of depression. The same record note the Veteran reported a history of suicidal ideation approximately 7-8 years earlier, but denied current suicidal ideation, plans, or prior attempts. A February 2015 HUD-VASH outreach record noted the Veteran denied suicidal and homicidal ideation. An April 2015 emergency department triage record noted the Veteran denied feeling hopeless about the present/future and denied suicidal and homicidal ideation. An April 2016 mental health record noted a low suicide risk assessment based on religious views and family. The Veteran also denied suicidal ideation in a December 2015 mental health counseling record and an included suicide assessment risk was low. A March 2016 mental health evaluation record noted the Veteran was discontent with his church and feeling depressed, but he denied suicidal ideation. March 2016 through May 2016 mental health records included multiple low suicide risk assessments. In an April 2017 primary care record the Veteran acknowledged feeling hopeless about the present/future but he denied current suicidal ideation. April 2017 and May 2017 psychiatry outpatient records noted low suicide risk assessments. In an August 2017 primary care record the Veteran acknowledged feeling hopeless about the present/future but denied suicidal ideation. Separate August 2017 records noted low suicide risk assessments. An October 2017 psychiatry record noted a low suicide risk assessment but included a report by the Veteran that he is currently struggling after his spouse recently experienced a miscarriage. A November 2017 psychiatry record noted the Veteran denied suicidal ideation, but he also expressed concern about accurately reporting his mental health status for fear that he would lose his firearms again. In December 2017 and March 2018 psychiatry outpatient records noted low suicide risk assessments. A December 2018 mental health group counseling record noted the Veteran is clinically depressed. A December 2018 psychiatry outpatient record noted the Veteran endorsed passive suicidal or homicidal ideation however he reported no plan or intent to act on those thoughts. The claims file includes an April 2016 VA mental disorders (other than PTSD and eating disorders) examination wherein the examiner confirmed a diagnosis of PDD. No other mental disorders were diagnosed. Occupational and social impairment was noted as due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran’s symptoms were noted to include depressed mood, chronic sleep impairment, and disturbance of motivation and mood. Behavioral observations on mental status examination included: good eye contact, voice was normal in tone and pace, Veteran was alert and oriented. Grooming and hygiene were satisfactory. Speech was easily understood, and he expressed himself well. The examiner noted the Veteran appeared to be of at least average intelligence based on verbal skills and manner of presentation. Affect was full ranging and appropriate. However, the Veteran described his underlying mood as depressed, he expressed trouble sleeping and reported that sleep is generally non-restorative. The Veteran endorsed symptoms including low energy and variable motivation. The Veteran denied anhedonia, reduced appetite, and suicidal ideation. The Veteran’s thinking was logical and goal oriented and there were no indications of a thought disorder. The claims file also includes a June 2017 VA mental disorders (other than PTSD and eating disorders) examination wherein the examiner confirmed a diagnosis of PDD. Occupational and social impairment was noted with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Symptoms included depressed mood, anxiety, and chronic sleep impairment. Behavioral observations included: on time arrival for the examination; orientation to time, place, person, purpose of exam; presents as generally cooperative and forthright in completing exam tasks; thought process is clear and goal oriented. The examination report noted the Veteran denied suicidal and homicidal ideation. No additional symptoms were noted attributable to the Veteran’s diagnosed PDD. In a November 2017 VA mental disorders (other than PTSD and eating disorders) examination a new examiner confirmed a diagnosis of PDD. Occupational and social impairment was noted with reduced reliability and productivity. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran exhibited some signs of anxiety during the examination but was overall cooperative and did not appear to be invested in image or symptom manipulation. There was no evidence of problems with reality testing or with symptoms suggestive of a thought disorder. The examiner noted in the remarks section of the report that the current examination is substantially the same as the previous two examinations. The Veteran continues to struggle with irritability, chronic non-restful sleep, chronic pain, and dysthymia. The Board has reviewed the above findings and observes that there is a question as to whether the Veteran’s psychiatric symptoms prior to January 23, 2019 support a 50 percent or 70 percent evaluation. Much of this analysis centers around the Veteran’s repeated denials of suicidal ideation. However, there is no question that the Veteran has previously reported suicidal ideation and had his firearms removed. Taken as a whole, and resolving all doubt in favor of the Veteran, the Board finds that a 70 percent evaluation is warranted for this period, beginning with the grant of service connection in December 2012. To this extent, the appeal is granted. As specifically detailed below, however, there is absolutely no evidence to support a 100 percent evaluation at any time during the pendency of this appeal. 2. Entitlement to a rating higher than 70 percent for PDD and unspecified anxiety disorder for the period from January 23, 2019. The claims file also includes a January 2019 VA mental disorders (other than PTSD and eating disorders) examination, wherein the examiner confirmed diagnoses of PDD and unspecified anxiety disorder. The examiner noted that it is not possible to differentiate symptoms between each diagnosis as they overlap and are mutually aggravating. Occupational and social impairment was noted with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, difficulty in establishing and maintaining effective work or a work like setting, difficulty in adapting to stressful circumstances, suicidal ideation, and impaired impulse control. Noted behavioral observations included on time arrival and fair grooming with adequate hygiene. The Veteran’s affect was blunted/depressed, and mood was irritable and angry. The Veteran expressed some paranoid thoughts, such as distrust of this provider and others, during the examination. The examiner noted the Veteran was hypercritical of self and others. The veteran easily understood and answered questions directly. Memory was noted intact, attention varied at times, but was generally good. The Veteran acknowledged chronic suicidal ideation, but denied current intent, and the examiner noted is not an imminent danger to himself. A thorough review of the post service VA treatment records dated from January 2013 through November 2019 shows repeated denials of hallucinations and delusions. Private post service treatment records include a February 2019 counseling record that noted the Veteran was taking prescription medication to deal with depression but had recently stopped taking the medication because he was feeling ok. A January 2019 counseling treatment record noted feelings of hopelessness. There is no indication in these records that the Veteran reported hallucinations or delusions. In light of the evidence above, the preponderance of evidence demonstrates that the Veteran’s PTSD symptoms approximated the schedular criteria for a rating of 70 percent for the period from January 23, 2019. In so finding, the Board looked to the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture including reported suicidal ideation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). While the Veteran acknowledged current suicidal ideation, the Board finds that there is no indication in the record of total occupational and social impairment or other symptomatology consistent with a 100 percent total rating. Thus, the preponderance of the evidence is against the claim for a rating higher than 70 percent. The claim to this extent is denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) before January 23, 2019 The Veteran asserts entitlement to TDIU based on service-connected disabilities. Specifically, the Veteran asserts that his service-connected psychiatric disability precludes him from securing or following substantially gainful employment. See December 2018 VA 21-8940 Application for TDIU. VA will grant TDIU when the evidence establishes that a veteran is precluded by a service-connected disability or disabilities from securing and following substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16 (a), 4.19. When the schedular rating is less than total and the Veteran is service connected for only one disability, TDIU may be assigned if that disability is rated at 60 percent or more. If the Veteran is service connected for two or more disabilities, at least one disability must be rated 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Following the grant of increased rating for PDD contained in this ORDER, for the period prior to January 23, 2019, the Veteran was service-connected for PDD, rated as 70 percent; bilateral shins splints, individually rated at 10 percent disabling; and for a recurrent sebaceous cyst rated as noncompensable or zero percent disabling. See September 2020 rating decision. The combined rating was 80 percent. With that being said, the Board must still evaluate whether the service-connected disabilities precluded the Veteran from securing and following substantially gainful employment during the appeal period. The Veteran indicated in a June 2017 application for individual unemployability that he stopped working due to disability. The Veteran also asserted that he quit his most recent employment because the employer was not concerned with employee safety and was operating illegally. The Veteran subsequently submitted an October 2017 request for hardship determination wherein he indicated he has been unemployed since June 2017. VA received a completed Form 21-4192 Request for Employment Information in Connection with a Claim for Disability Benefits from the Veteran’s most recent employer in December 2018. The submission noted the Veteran earned $35,665 in 2016 and $16,772 in 2017 prior to retiring from truck driving to go back to school. A copy of email correspondence between the Veteran and his former supervisor received in June 2017 indicated that the Veteran would be welcome back to work. The Board notes that the Veteran was award Vocational Rehabilitation and Employment (VRE) services in an April 2017 correspondence. A VRE counseling record and narrative report that same month notes the Veteran’s current employment exacerbates his service-connected disabilities but concludes he does not have the necessary experience to acquire suitable, sustainable, and gainful employment. The Veteran is unable to prepare for, obtain or retain suitable employment, without additional rehabilitation services. The June 2017 VA Form 28-8872 VRE rehabilitation plan included academic instruction, tuition, fees, books, required supplies, and a stipend allowance for Cyber Security Specialist program. The Board also notes the Veteran reported in a June 2017 VA mental disorders examination that he quit his trucking job due to “back pain” and “stress” but he also acknowledged quitting to engage in a Vocational Rehabilitation training program because he feels that he can no longer be in a truck driving role due to physical health issues and periods of absence away from his family as he enjoys being close to his children and spouse. The Board observes the examiner did not make any comments regarding the impact of the Veteran’s service-connected disabilities on his ability to work. In addition, the June 2016 mental disorders examination report noted the Veteran continues to have some problems with authority figures but has been able to engage in work activities despite his mood. While he appears to have reduced ability to cope with stress, which has impacted employment in the past, he is currently employed. There is no other medical evidence of record suggesting that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Board has considered the Veteran’s assertions but finds that he lacks the medical training and credentials to ascertain the precise effect of service-connected disabilities on employability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In short, the preponderance of the evidence is against a finding that the Veteran is unemployable on account of service-connected disabilities. Thus, the claim for TDIU for the period prior to January 23, 2019, is denied. REASONS FOR REMAND The Veteran asserts that his service connected PDD prevents him from obtaining and maintaining gainful employment. See December 2018 VA Form 21-8940 Application for Increased Compensation Based on Unemployability. The Board notes correspondence from the Veteran’s employment coordinator dated August 2020 indicating that the Veteran is currently employed. There is also a note opining that the current job can exacerbate his service-connected disabilities but there is no further indication in the record of the Veteran’s employment status. The Veteran’s employment status must be clarified on REMAND. The matters are REMANDED for the following action: 1. Contact the Veteran, via a 38 C.F.R. § 3.159(b) notice letter addressing his TDIU claim and furnish the Veteran a VA form 21-8940 by which he can update his employment status. Complete any development and adjudication warranted by the Veteran’s response. 2. Then, readjudicate the claim on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED