Citation Nr: 21028291 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-00 078A DATE: May 10, 2021 ORDER Entitlement to service connection for a right ankle disability, to include on a secondary basis is denied. FINDING OF FACT A preponderance of the evidence of record indicates that the Veteran's right ankle disability did not have its onset during his initial period of active duty military service, was not otherwise caused by his initial period of active duty military service, and was not caused or aggravated by any of his claimed service-connected disabilities left ankle strain, right knee strain, left knee strain, lumbar spine degenerative joint disease either individually, or due to their combined effects. CONCLUSION OF LAW The criteria for service connection for a right ankle disability, to include on a secondary basis, are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159(a), 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1997 to November 2013 ("initial period"), including service in Afghanistan, for which he was awarded the Afghanistan Campaign Medal with two campaign stars, and the Combat Action Badge. He returned to active duty January 2019 and is still serving on active duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2015 and June 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). A January 2019 Board decision denied the appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). A December 2019 Order of the Court granted the parties' Joint Motion for Remand (JMR), vacated the Board's decision, and returned the appeal to the Board. In April 2020, the Board remanded the appeal for further development; there was substantial compliance with the remand directives. Entitlement to service connection for a right ankle disability, to include on a secondary basis. The Veteran seeks entitlement to service connection for a right ankle disability. The Veteran, in his initial February 2015 fully developed claim for service connection, VA Form 21-526EZ, contended that his right ankle disability was causally related to his service-connected right knee strain. In a May 2015 VA Form 21-526EZ, the Veteran amended his claim and contended that his right ankle disability was causally related to his service-connected left ankle strain. In his August 2018 Statement in Support of Claim, VA Form 21-4138, the Veteran contended that his right ankle disability was causally related to his service-connected left knee strain, and his service-connected lumbar spine degenerative joint disease (DJD), as well as due to the previously claimed right knee strain and left ankle strain. The Board will address all raised contentions of secondary service connection, as well as direct service connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disorder was incurred in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. See 38 C.F.R.§ 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C. § 1154(a). In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. §1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, as did the Veteran in this appeal, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. Id. However, even when the section 1154(b) combat presumptions apply, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury...incurred during active duty." See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran is currently service-connected for, among other disabilities, a left ankle strain, right knee strain, left knee strain, and lumbar spine DJD (hereafter referred to collectively as his "claimed service-connected disabilities"). The Veteran contends that his current right ankle disability is causally related to his claimed service-connected disabilities, primarily due to a compensatory shift in weight-bearing to his right ankle. The Veteran specifically contends that this shift in weight-bearing caused him to develop an abnormal gait, which in turn proximately caused his current right ankle disability, manifested by pain and functional impairment - as provided by the Veteran in January 2017 and May 2018 VA Form 21-4138. The question for the Board then is whether the Veteran's current right ankle disability is proximately caused or aggravated by any of his claimed service-connected disabilities, or the combined effect of them, or whether his current right ankle disability began during service or is at least as likely as not related to an in-service injury, event, or disease. For the reasons set forth below, the Board concludes that, although the record establishes that the Veteran suffers from a current right ankle disability, a preponderance of the evidence of record weighs against the Veteran's contentions that his current right ankle disability is causally related to or aggravated by his claimed service-connected disabilities, or otherwise causally related to his initial period of active duty service. Service treatment records dated August 2013, approximately three months prior to his separation from service, reflect that in 2008, the Veteran suffered a left ankle sprain while serving in Afghanistan, and that in August 2013, the Veteran reported related left ankle pain, as well as low back pain, but no other foot trouble, foot pain, or impaired use of his feet. Subsequent service treatment records dated September 2013 further indicate that - although the Veteran again reported low back pain and left ankle pain, to include tenderness on palpation, crepitus on motion, pain elicited by motion, instability, and swelling - the Veteran's right ankle was found on examination to be normal and not to manifest any symptoms, including any of the following: swelling; erythema; warmth; misalignment; tenderness on palpation; abnormal motion; crepitus on motion; pain elicited by motion; laxity; anterior drawer sign; squeeze test for stress fracture; syndesmosis pathology; instability; or tenderness on ambulation. Accordingly, the Veteran's service treatment records are completely devoid of any medical or lay evidence regarding any injury, pain or other symptoms relating to his right ankle. In fact, evidence relating to any symptoms manifested by the Veteran's right ankle first appears in the record in April 2015, in connection with the Veteran's first VA examination seeking compensation for his right ankle condition, during which he reported for the first time to a medical provider that the onset of his right ankle pain had occurred in July 2013, just one month prior to the August 2013 service treatment records reflecting his denial of any right ankle pain, and just two months prior to his September 2013 retirement examination reflecting no abnormalities in the right ankle, no evidence of an altered gait, and no reports of right ankle pain or impairment by the Veteran. The April 2015 VA examiner noted that in December 2008, while serving in Afghanistan, the Veteran injured his left ankle and was treated with a cast and crutches for one month. The examiner further noted that despite the Veteran's contention that his right ankle pain first occurred in July 2013, just a few months prior to his separation from service, the Veteran's service treatment records do not reflect treatment for a right ankle injury while in service. Although the April 2015 VA examiner ultimately opined that it is "feasible" that altered weight bearing from the Veteran's service-connected left ankle disability "may" in part be responsible for his right ankle symptoms, in this case, the examiner expressly clarified that such reasoning cannot be used to establish service connection for the Veteran's right ankle condition. In June 2015, the Veteran underwent a second VA examination during which the Veteran repeated his contention that he first injured his right ankle in 2013, but that no diagnosis was made at that time. The Veteran further reported that he occasionally rolls his right ankle, that daily pain in his right ankle requires medication with naproxen, and that his symptoms have increased in severity over time. The Veteran attributed the symptoms manifested by his right ankle to the shift in weight bearing due to his service-connected left ankle disability. The June 2015 VA examiner disagreed. Although the Veteran's right ankle was found to manifest an abnormal range of motion, objective evidence of pain on motion, and evidence of pain on weight-bearing, the June 2015 VA examiner ultimately found no objective evidence of an altered gait, and accordingly rejected the Veteran's etiological contentions on the grounds that absent a gait abnormality, there could be no nexus between the Veteran's service-connected left ankle disability and his current right ankle disability. In October 2017, a VA addendum opinion affirmed the prior negative nexus opinions and reiterated that, in light of the absence of any evidence of a long-standing, chronic abnormal gait prior to the onset of the Veteran's right ankle disability, the Veteran's right ankle condition is less likely than not proximately due to or the result of his service-connected left ankle disability. The October 2017 VA examiner also noted that the evidence of record reflects that the Veteran exhibited a normal gait in January 2014 and December 2014, which the October 2017 VA examiner found to be incompatible with the development of any contralateral joint bearing anomaly based on antalgic gait. The October 2017 VA examiner further opined that only a long-standing abnormal gait is capable of producing abnormalities in a contralateral weight-bearing joint, and that an acute or temporarily antalgic gait cannot cause chronic problems in a contralateral joint. In August 2018, an additional VA addendum opinion further clarified that the Veteran's current right ankle disability is not aggravated beyond its natural progression by his service-connected left ankle disability because during the Veteran's June 2015 VA examination, the VA examiner found no evidence of aggravation beyond the natural progression of the Veteran's right ankle strain. In April 2020, the Board remanded the appeal for further development in order to consider the additional theories of secondary service connection raised by the Veteran in his August 2018 Statement in Support of Claim, VA Form 21-4138. The remand directed that the Veteran be provided a new VA examination, with a medical opinion as to the association between all of the Veteran's claimed service-connected disabilities, to include the combined effects of those disabilities, and the Veteran's right ankle disability. In August 2020, the Veteran was provided a new VA examination and medical opinion in order to evaluate his additional theories of secondary service connection. At the examination, the Veteran reported that his right ankle condition began in 2015 [after his separation from service] due to his left ankle injury suffered in Afghanistan, which impacts his right ankle. The Veteran noted that his current symptom is pain and that the impact of his ankle disability is the inability to stand for long periods and pain after running. The August 2020 VA examiner reviewed the record, examined the Veteran, diagnosed a right ankle strain, and opined that the right ankle condition is less likely than not (less than 50 percent probability) due to the service-connected bilateral knee strains, left ankle sprain, lumbar spine DJD or combined effects of all. The examiner also opined that the Veteran's right ankle condition was not at least as likely as not aggravated beyond its natural progression due to the service- connected bilateral knee strains, left ankle sprain, lumbar spine DJD or combined effects of all, as the examiner found no aggravation beyond natural progression. The examiner's rationale provided that "[t]here is no association with bilateral knee strains, left ankle strain, [lumbar spine] DJD causing the current right ankle condition. This type of secondary association only occurs with lower extremities injuries or back injuries which produce noticeable changes in posture, stance and gait, which includes fractures of the long bones with more than 2.5cm loss of bone length, ankylosis of the major joints - ankle, knees or hips, or infections that cause joint destruction. [The] Veteran does not have objective physical findings or history of these conditions. Due to the lack of findings of orthopedic disorder which would affect the right ankle, it is less likely than not the diagnosed right ankle condition is secondary to or aggravated beyond it's normal progression by [the] Veteran's service-connected conditions." The August 2020 VA examiner also provided an opinion as to direct service connection, opining that the Veteran's right ankle condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale provided that service treatment records are devoid of symptoms or diagnoses for the right ankle, and that no right ankle diagnosis is found while the Veteran was on active duty. Subsequently, in an October 2020 correspondence, the Veteran notified the RO that the August 2020 VA examiner did not consider service treatment records from his new period of active duty service, which began in January 2019, including records showing treatment for his right ankle. The RO then obtained the relevant service treatment records and requested an addendum medical opinion taking into consideration the new service treatment records. A different VA examiner provided a January 2021 addendum medical opinion. The examiner reviewed the record, including the new service treatment records, and found that during his current period of active duty, the Veteran demonstrated chronic and recurrent right ankle problems and complaints. However, the examiner found that there was no evidence that any of the service-connected conditions either caused or aggravated the Veteran's right ankle strain. The examiner's rationale provided that any such correlation is purely speculative as the Veteran's claims of aggravation would be speculative without evidence of chronic gait and stance changes stemming from the ankle, knee and back conditions. As multiple notations in the file indicate that the Veteran's gait has been normal, the examiner found that attributing the cause or aggravation to the other service-connected conditions is not possible. While the Board concedes that the Veteran suffers from a current right ankle disability, in light of the above evidence, the Board finds that a preponderance of the evidence of record weighs against a finding that the Veteran's current right ankle disability is causally related to or aggravated by any of his claimed service-connected disabilities or his initial period of active duty military service generally. First, the Board finds that the six VA opinions of record provide the most probative evidence regarding the nature and etiology of the Veteran's current right ankle disability. They are the only medical opinions of record, they were provided by VA examiners possessing the necessary education, training, and expertise to provide the requested opinion. These opinions were based upon a review of the Veteran's record, and cumulatively, they have adequately addressed all potential theories of entitlement to service connection in this case: direct service connection; and service connection secondary to all of the claimed service-connected disabilities, including both causation and aggravation, and considering the combined effects of all of the claimed service connected disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); 38 C.F.R. § 3.159(a)(2). In addition, the Board finds that all six VA opinions of record are consistent with the objective medical evidence of record, including the absence of any medical evidence that the Veteran suffers from an abnormal gait that caused his current right ankle disability, as well as the absence of any probative evidence that the Veteran's right ankle condition had its onset during the Veteran's initial period of active military service. Accordingly, the Board finds that all six VA opinions of record are competent and credible and therefore entitled to probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302. The Board acknowledges that the April 2015 VA examiner stated that it was "feasible" that the Veteran's shift in weight-bearing from his left ankle to his right ankle "may" be responsible for the symptoms manifested by his right ankle. However, the Board finds the speculative nature of this language insufficient to establish the requisite probative weight to justify a fair and impartial finding that the Veteran's claim is well-grounded or to support a finding of service connection in this case. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Swann v. Brown, 5 Vet. App. 229, 232 (1993). Moreover, the Board also notes that the April 2015 VA examiner expressly qualified this speculative statement with the opinion that such a possibility "cannot be used" in this particular case to establish service connection for the Veteran's right ankle disability. Accordingly, the Board finds that the speculative and qualified nature of the April 2015 VA examiner's statement renders it devoid of sufficient probative weight to overcome the cumulative weight of the remaining opinion evidence of record, which overwhelmingly opposes a finding of service connection in this case. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Finally, while the Board does not doubt that the Veteran is sincere in his belief that his right ankle disability was proximately caused or aggravated by his claimed service-connected disabilities, it finds that the Veteran's statements lack competency to the extent they attempt to provide an opinion regarding the etiology of his right ankle disability. As a lay person, the Veteran does not possess the education, training, or experience to competently opine on the matter. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although lay persons are competent to provide opinions on certain medical issues, determining the etiology of the Veteran's right ankle disability falls outside the realm of matters that are capable of being observed and described by a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). On the contrary, a competent opinion regarding the etiology of the Veteran's right ankle disability requires knowledge of the complexities of the neurological and musculoskeletal systems and is thus a complicated medical issue upon which a lay person may not competently opine. See Jandreau, 492 F.3d at 1377, n.4. Accordingly, while the Veteran is competent to identify the observable features or symptoms of his condition, including right ankle pain and a limp, he is not competent to render an opinion regarding whether such observable symptoms are etiologically related to his service-connected disabilities. See Jandreau, 492 F.3d at 1376-77. In light of the foregoing, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran's right ankle disability is causally related to or aggravated by his claimed service-connected disabilities, and therefore, an award of service connection on a secondary basis is not warranted. 38 C.F.R. § 3.310. Turning to the evidence, at his April and June 2015 VA examinations, the Veteran contended that the onset of his right ankle disability first occurred in July 2013, just a few months prior to his separation from service. However, at his August 2020 VA examination, the Veteran reported that his right ankle condition began in 2015 [after his separation from his initial period of active duty service]. The Board thus finds that the credibility of the Veteran's lay statements concerning the onset of his right ankle condition is diminished by the contradictions in his lay statements regarding the date of onset, as well as by the presence in the record of other inconsistent statements made by the Veteran. In particular, the Veteran's denial of any right ankle pain or foot problems in August 2013 and again in September 2013. As noted above, the Veteran specifically denied the presence of any right ankle or foot pain, despite positively identifying the pain he suffered from his low back and left ankle conditions. Accordingly, this denial cannot plausibly be construed as an accidental omission, and the Board finds that it operates to constructively sever any causal relationship or nexus between the Veteran's military service and his right ankle disability, as well as to further diminish the credibility of the totality of the Veteran's lay statements. The Board also notes that, despite the fact that lay statements made to medical providers during the course of medical treatment carry a high level of credibility, the Veteran had the opportunity on multiple occasions prior to his separation from his initial period of service to report to his treating physicians that he was suffering from right ankle pain possibly triggered by his 2008 left ankle injury, yet he declined to do so. See White v. Illinois, 502 U.S. 346, 355-56 (1992). Accordingly, the Board finds that the inconsistent and contradictory statements offered by the Veteran nullify the credibility of his lay testimony regarding the onset of his right ankle pain during his initial period of service, and the Board assigns no probative value to the Veteran's assertions that his right ankle condition is related to his initial period of military service. See Caluza, 7 Vet. App. at 511. Therefore, the Board finds that the Veteran has failed to establish either that the onset of his right ankle disability occurred during his initial period of active service or that it is otherwise related to any other in-service injury or incident during his initial period of service. Accordingly, the Board finds that the Veteran's right ankle disability is not causally related to his initial period of active military service, and thus service connection on a direct basis is not warranted. 38 C.F.R. § 3.303; Combee, 34 F.3d at 1043-44. (Continued on the next page) In light of the foregoing, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran's right ankle disability was caused or aggravated by his claimed service-connected disabilities or is otherwise causally related to his initial period of active military service. In reaching these conclusions, the Board has considered the doctrine of reasonable doubt; however, because a preponderance of the evidence weighs against service connection on either a secondary or a direct basis, the benefit of the doubt doctrine does not apply in this case. The Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Caban, 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