Citation Nr: 21026749 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-37 516 DATE: May 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to a rating of 10 percent, but not higher, for bilateral conjunctivitis, from February 3, 2015 is granted. REMANDED The issue of entitlement to service connection for a right ankle disability is remanded. The issue of entitlement to service connection for a left ankle disability is remanded. The issue of entitlement to a rating in excess of 10 percent for residual right knee strain with degenerative arthritic changes and degenerative cystic changes is remanded. The issue of entitlement to a rating in excess of 10 percent for right knee instability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service, or is otherwise related to an in-service injury or disease. 2. During the entire appeal period, the Veteran has had periodic episodes of conjunctivitis with symptoms of itching and burning. However, he does not have impairment of visual acuity, visual field, or muscle function due to his service-connected conjunctivitis. Moreover, his conjunctivitis did not result in incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a rating of 10 percent, but no higher, for bilateral conjunctivitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.79, Diagnostic Code 6018. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to November 1994. The Board previously remanded the issue for further development in August 2019. The case has now been returned to the Board for appellate review. The Board previously considered the issue of service connection for a left knee disability and remanded for additional development in August 2019. Subsequent to the remand, the RO granted service connection for left knee strain with degenerative arthritis. That decision is considered a full grant of benefits sought on appeal, and the appeal concerning left knee disability is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310 (b). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his current sleep apnea began while in service, though he did not know about sleep apnea until many years after his retirement from service. He submitted at least two lay statements, one from his spouse and the other from a fellow serviceman, describing the Veteran's snoring and cessation of breathing during his sleep. Here, the Veteran has a current diagnosis of obstructive sleep apnea as shown in the medical evidence. Also, the evidence is in equipoise as to whether he had episodes of snoring and cessation of breathing while he was in service, for lay persons are competent to report observable physical conditions and the lay statements submitted by the Veteran are credible. Thus, the issue before the Board is whether the Veteran's current sleep apnea began in service or is otherwise related to his service. Based on the evidence of record, the Board finds that the evidence is in equipoise on this point. A March 2015 polysomnography report, which provides a diagnosis of sleep apnea, indicates that the Veteran had a medical history of hypertension and obesity and he reported complaints of excessive daytime sleepiness, pauses in breathing during sleep, snoring, dry mouth in the morning, gaining 10 pounds in the past year, inability to sleep in a flat position, leg kicking during sleep, grinding teeth during sleep, wheezing during the night, and coughing up sputum or mucus at night. His weight, reported in a January 1995 examination, was 201 pounds and 218.9 pounds in January 2015 with BMI 31. The Board notes that he weighed 184 pounds in April 1977 and 174 pounds in May 1982, as measured in in-service examinations. A May 2015 letter from his treating physician at VA indicates that the Veteran was diagnosed with severe sleep apnea. A November 2020 VA examiner opines that his obstructive sleep apnea was less likely than not incurred in or caused by service after reviewing the evidence of record, to include the lay statements submitted by the Veteran. The rationale provided is that a March 2015 polysomnography report, which is the earliest test of record and over 20 years after service, documented the evidence of obesity, which is a major risk factor in development of sleep apnea due to neck fat constricting the upper airway leading to obstruction. In a December 2020 statement, the Veteran maintains that becoming obese after service is not true, for he weighed 190 pounds with height of 5 feet 11 inches when he retired in 1994 and only gained 10 pounds over the next 22 years after retirement. A calculation of Body Mass Index based on the information provided by the National Institute of Health (NIH) indicates that 201 pounds at 5 feet 11 inches yield BMI 28 (January 1995), while 218.9 pounds at 5 feet 11 inches yield BMI 30.5 (January 2015). In an earlier period of his service, his BMI were 25.7 (April 1977) and 24.3 (May 1984), based on the weight 184 pounds and 174 pounds, respectively. The legend states that BMI between 25 and 29.9 indicates overweight and BMI of 30 or greater indicates obesity. This means he was considered overweight, but not obese, in April 1977 and also in January 1995 shortly after retirement. However, in January 2015 when he underwent the sleep study for the first time, he was considered obese based on his BMI. Moreover, no medical opinion has been rendered or indicated in favor of the Veteran's claim, and the fact that a sleep study was not conducted until 2015 weighs against his claim. In this context, the Board notes that the passage of several years between discharge from active service and the medical documentation of the claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 36 (1992). The Board acknowledges the competent and credible lay statements from the Veteran, his spouse, and his fellow service member regarding symptomatology. Nevertheless, to the extent that the Veteran attributes his disability to service, he is not competent to opine on the etiology of a complex medical condition such as sleep apnea nor to diagnosis such condition, especially sleep apnea, which requires medical clinicians to conduct a sleep study to ascertain a diagnosis, and the lay statements are therefore afforded no weight in terms of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 ; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). While the Veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the disability rating is at issue, generally, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in evaluating a claim for a higher initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (for increased rating claims); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (for initial rating claims). 2. Increased rating for conjunctivitis since February 3, 2015 The Veteran's bilateral conjunctivitis is rated as non-compensable from February 3, 2015 under Diagnostic Code 6018. Previously, the Board denied a rating in excess of 10 percent for conjunctivitis from June 7, 2014 to February 3, 2015 in the August 2019 decision. The AOJ assigned rating of 10 percent based on acute onset of conjunctivitis. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75 (a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76 (b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Both the former and revised criteria under Diagnostic Code 6018 for chronic conjunctivitis (nontrachomatous) distinguished active and inactive disease processes. Under the former criteria, an active disease process (with objective findings, such as red, thick conjunctivitae, mucous secretion, etc.) is assigned a 10 percent rating. Under the revised criteria, an active disease process is rated pursuant to the General Rating Formula for Diseases of the Eye, with a minimum rating of 10 percent. For an inactive disease process, both the former and revised criteria instruct to evaluate based on residuals, such as visual impairment and disfigurement (Diagnostic Code 7800). With regard to visual impairment, the May 2018 amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. The General Rating Formal for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. For brevity, the Board will not recite the ratings for incapacitating episodes, but will note how an incapacitating episode is defined from May 2018 onward. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091. The evidence of record indicates that the improvement of the Veteran's conjunctivitis, as noted in a May 2017 rating decision, was only temporary and that he suffers from acute allergic conjunctivitis, which is not completely alleviated by medications, for the entire appeal period. Thus, a minimum of 10 percent rating is warranted for the entire appeal period for active conjunctivitis. However, the evidence does not indicate that the Veteran's conjunctivitis warrants a rating in excess of 10 percent under either version of the regulations. Here, the evidence does not show that he has impairment of visual acuity or muscle dysfunction for the entire appeal period. As for visual field, the VA treatment records note that he has some contraction of visual field, but it is noted as due to glaucoma or Chiari formation, and not due to conjunctivitis. See December 2015, December 2019 VA examinations. Thus, a rating in excess of 10 percent is not warranted for visual impairment. As for incapacitating episodes, the Veteran takes various medications to treat symptoms of conjunctivitis, such as Naphcon, antihistamines, ketotifen, cromolyn, FML, prednisolone, olopatadine, and artificial tears. See, e.g., May 2020 VA treatment record. However, none of the treatment during the appeal period involves a type of treatment required for consideration of incapacitating episode, such as systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Therefore, a rating in excess of 10 percent is not warranted under the criteria for incapacitating episodes either. Lastly, the evidence does not show any scarring or disfigurement due to bilateral conjunctivitis. See, e.g., December 2015, December 2019 VA examinations. Therefore, a rating of 10 percent, but no higher, for bilateral conjunctivitis is granted for the appeal period from February 3, 2015. REASONS FOR REMAND 1. The issue of entitlement to service connection for a right ankle disability is remanded. 2. The issue of entitlement to service connection for a left ankle disability is remanded. The Veteran maintains that his bilateral ankle disabilities might be related to his service-connected lumbar spine disability. See December 2020 Veteran's Statement. A November 2020 VA opinion, obtained per August 2019 Board remand, states that the ankles disabilities are not related to service and that they are more likely due to his age. However, no opinion addressing the theory of secondary service connection has been provided, even though the Veteran is service connected for a lumbar spine disability, sciatica in bilateral lower extremities, and bilateral knee disabilities, which impact the Veteran's mobility as his ankle disabilities likely do. Therefore, upon remand, an addendum opinion addressing the theory of secondary service connection must be obtained. 3. The issue of entitlement to a rating in excess of 10 percent for residual right knee strain with degenerative arthritic changes and degenerative cystic changes is remanded. 4. The issue of entitlement to a rating in excess of 10 percent for right knee instability is remanded. As for the right knee disability, a new VA examination is required in order to evaluate the current severity of the disability for the following reasons. As for the general condition of the Veteran's right knee, the evidence seems to indicate that he might have additional impairment in meniscus. A May 2016 VA physical therapy record indicates that he was diagnosed with meniscus derangement. The physical therapist noted that the Veteran complained bilateral knee pain with instability and the knee pain likely had three main components, meniscal pathology, osteoarthritis, and patellofemoral syndrome. Moreover, the most recent December 2019 VA knee examination, though it provides range of motion for the right knee, was administered to evaluate the Veteran's left knee and it is not clear if this examination reflects the current severity of his right knee condition. As for the right knee instability, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's right knee instability is currently rated under Diagnostic Code 5257 which was revised under the February 2021 amendment. The record does not contain sufficient evidence to rate the Veteran's disability under the new rating criteria. For the foregoing reasons, a new examination for the right knee disability is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion addressing whether the Veteran's bilateral ankle disability is proximately due to or aggravated beyond natural progression by a service-connected disability. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include the amended Diagnostic Code 5257 for recurrent subluxation or lateral instability. In addition, the examiner must determine if the Veteran has any meniscus disability. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). All opinions expressed must accompany sufficient rationales. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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