Citation Nr: 21028422 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-30 781 DATE: May 11, 2021 ORDER Entitlement to service connection for prostate cancer as secondary to the service-connected disability of prostatitis with prostate hypertrophy is dismissed. New and material evidence has been received to reopen a service connection claim for a neurologic disability, to include radiculopathy of the left upper extremity, as secondary to the service-connected disability of degenerative changes of the cervical spine. New and material evidence has been received to reopen a service connection claim for a neurologic disability, to include radiculopathy of the bilateral lower extremities as secondary to the service-connected disability of degenerative changes of the lumbar spine. New and material evidence has been received to reopen a service connection claim for hypertension. Service connection for a neurologic disability, to include radiculopathy of the left upper extremity, as secondary to the service-connected disability of degenerative changes of the cervical spine, is granted. Service connection for a neurologic disability, to include radiculopathy of the bilateral lower extremities, as secondary to the service-connected disability of degenerative changes of the lumbar spine, is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to the service-connected disability of prostatitis with prostate hypertrophy, is remanded. FINDINGS OF FACT 1. The Board received notification in October 2020 from the Veteran's representative of the Veteran's desire to withdraw from appeal the issues of service connection for prostate cancer as secondary to the service-connected disability of prostatitis with prostate hypertrophy. 2. In an unappealed August 2003 rating decision, the RO last denied the claims of service connection for peripheral neuropathy of the left upper extremity as secondary to the service-connected disability of degenerative changes of the cervical spine and peripheral neuropathy of the lower extremities as secondary to the service-connected disability of degenerative changes of the lumbar spine. 3. The evidence received since the last final August 2003 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for a neurologic disability, to include radiculopathy of the left upper extremity, as secondary to the service-connected disability of degenerative changes of the cervical spine. 4. The evidence received since the last final August 2003 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for radiculopathy of the bilateral lower extremities as secondary to the service-connected disability of degenerative changes of the lumbar spine. 5. In an unappealed July 2013 rating decision, the RO last denied the claim of service connection for hypertension. 6. The evidence received since the last final July 2013 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for hypertension. 7. Resolving reasonable doubt in the favor of the Veteran, his radiculopathy of the left upper extremity, is proximately due to his service-connected degenerative changes of the cervical spine. 8. Resolving reasonable doubt in the favor of the Veteran, his radiculopathy of the bilateral lower extremities is proximately due to his service-connected degenerative changes of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal are met as to the claim for service connection for prostate cancer as secondary to the service-connected disability of prostatitis with prostate hypertrophy. 38 U.S.C. § 7105(b)(2) (2012); 38 C.F.R. § 20.205 (2020). 2. The August 2003 rating decision that last denied service connection for peripheral neuropathy of the left upper extremity as secondary to the service-connected disability of degenerative changes of the cervical spine and peripheral neuropathy of the lower extremities as secondary to the service-connected disability of degenerative changes of the lumbar spine is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 3. New and material evidence has been received to reopen the claim of service connection for a neurologic disability, to include radiculopathy of the left upper extremity, as secondary to the service-connected disability of degenerative changes of the cervical spine. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 4. New and material evidence has been received to reopen the claim of service connection for a neurologic disability, to include radiculopathy of the bilateral lower extremities as secondary to the service-connected disability of degenerative changes of the lumbar spine. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 5. The July 2013 rating decision that last denied service connection for hypertension is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 6. New and material evidence has been received to reopen the claim of service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 7. The criteria to establish service connection for a neurologic disability, to include radiculopathy of the left upper extremity, as secondary to the service-connected disability of degenerative changes of the cervical spine are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 8. The criteria to establish service connection for a neurologic disability, to include radiculopathy of the bilateral lower extremities as secondary to the service-connected disability of degenerative changes of the lumbar spine are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, the appellant in this case, served on active duty from January 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO). In response to a request from the Veteran's representative for a 90-day extension to allow for the submission of additional evidence/argument, the Board in correspondence dated September 29, 2020 granted a 90-day extension from the date of that letter. The Board notes that no additional evidence or argument was submitted in support of the claim during the extension period. As the 90-day period has expired without a further request for extension, the Board proceeds with adjudication of the Veteran's claims, except for the claim of service connection for prostate cancer, which has been withdrawn as discussed below. As phrased on the title page of this decision, the Board has recharacterized the service connection claims to entitlement to service connection for neurologic disabilities to include radiculopathy to better reflect the information contained in the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Dismissal of Appeal Pursuant to Veteran's Request The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(b)(2) (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205 (2019). Withdrawal may be made by the Veteran or his or her authorized representative. 38 C.F.R. § 20.205 (2019). In October 2020, the Board received notification from the Veteran's representative of the Veteran's desire to withdraw the claim of entitlement to service connection for prostate cancer from the instant appeal. See Representative's correspondence (and attached statement) received October 22, 2020. The Veteran's withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action. Therefore, the Board finds that the withdrawal of the claim for entitlement to service connection for prostate cancer is effective. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Goff v. Wilkie, No. 18-0156, 2019 U.S. App. Vet. Claims LEXIS 1269 (June 23, 2019) (unpublished decision). Hence, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal of that issue, and it is dismissed. See Id.; see also Evans v. Shinseki, 25 Vet. App. 7, 15 (2011). New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly- received evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). "New" evidence is defined as existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Peripheral Neuropathies / Radiculopathies In a March 2003 rating decision, the RO denied the Veteran's claims for peripheral neuropathies of the upper and lower extremities secondary to service-connected cervical and lumbar spine disabilities on the basis that there was no evidence showing that neuropathies were related to the service-connected disorders, and noting that he failed to report for a VA examination scheduled as part of the development of his claims. See Rating Decision dated March 14, 2003. In April 2003, the Veteran notified the RO that he was hospitalized at the time of the scheduled examination and requested that a new examination be scheduled, and the Veteran was examined in May 2003. In an August 2003 rating decision, the RO denied service connection, concluding that the Veteran's peripheral neuropathies were not related to service-connected degenerative changes in the cervical and lumbar spine, that there was no evidence linking neuropathies to service, and that neuropathies did not manifest within any applicable presumptive period. Id. The Veteran did not appeal the August 2003 rating decision, nor was new and material evidence received within a year of issuance of the August 2003 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In October 2016, the Veteran sought to reopen his service connection claims for peripheral neuropathy of the left upper extremity and peripheral neuropathy of the lower extremities. Specifically, the Veteran asserted that his peripheral neuropathy of the left upper extremity is secondary to the service-connected disability of degenerative changes of the cervical spine and that his peripheral neuropathy of the lower extremities is secondary to the service-connected disability of degenerative changes of the lumbar spine. See Application for Disability Compensation received October 24, 2016. In a February 2017 rating decision, the RO reopened the service connection claims, concluding that the Veteran had submitted new and material evidence, but denied the claims on the merits. The Veteran submitted a timely NOD and timely perfected an appeal to the Board, and the instant appeal ensued. Based on the procedural history of the case, the last final decision pertinent to the Veteran's claims of service connection for peripheral neuropathy of the left upper extremity and peripheral neuropathy of the lower extremities is the August 2003 rating decision. As reflected in the electronic claims file, the evidence of record at the time of the August 2003 rating decision consisted of the Veteran's service treatment records (STRs), private and VA treatment records, the Veteran's statements received in January 2002, and a May 2003 VA examination report. Subsequent to the August 2003 rating decision, evidence added to the claims file includes the Veteran's October 2016 petition to reopen the claims, private and VA treatment records, statements in support of his claims, and VA cervical and thoracolumbar spine examination reports dated July 2015 and December 2016. The additional evidence received since the August 2003 prior final denial, particularly VA treatment records dated February and May 2018 reflecting diagnoses of cervical and lumbar radiculopathies, speaks to the unestablished question of a nexus and is therefore new and material. See Shade, supra. Accordingly, new and material evidence has been received, and to this extent only, the claims of service connection for peripheral neuropathy of the left upper extremity and peripheral neuropathy of the lower extremities are reopened. Hypertension In a July 2013 rating decision, the RO denied the Veteran's original claim for service connection. See Rating Decision dated July 19, 2013. The RO concluded that the Veteran's hypertension was not related to service and it did not manifest within one year of service separation. Id. The Veteran did not appeal the July 2013 rating decision, nor was new and material evidence received within a year of issuance of the July 2013 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In October 2016, the Veteran sought to reopen his service connection claim for hypertension. Specifically, the Veteran asserted that his hypertension is secondary to the service-connected prostatitis with prostate hypertrophy. See Application for Disability Compensation received October 24, 2016. The Board notes that a different etiological theory underlying a claimed disorder does not constitute a new claim. See Ashford v. Brown, 10 Vet. App. 120, 125 (1997). In December 2016, the Veteran submitted a medical article in support of the claim. In a February 2017 rating decision, the RO reopened the service connection claim, concluding that the Veteran had submitted new and material evidence, but denied the claim on the merits. The Veteran submitted a timely NOD and timely perfected an appeal to the Board, and the instant appeal ensued. Based on the procedural history of the case, the last final decision is the July 2013 rating decision. The evidence of record at the time of the July 2013 rating decision consisted of the Veteran's STRs, private and VA treatment records, and statements in support of the claim. Subsequent to the July 2013 rating decision, evidence added to the claims file includes a December 2016 internet article from the Blue Heron Natural Health News, which suggests a link between hypertension and prostate conditions. This new evidence is material to the claim. Accordingly, new and material evidence has been received, and to this extent only, the claim of service connection for hypertension is reopened. Service Connection Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2018). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2018); Allen v. Brown, 8 Vet. App. 374 (1995). If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Here, the Veteran's service treatment records (STRs) are negative for symptoms or treatment of peripheral neuropathies, and the post-service treatment records do not reflect symptoms or diagnosis of these diseases until many years after the Veteran's separation from service. Thus, 38 C.F.R. § 3.303(b) is not for application on this record. A lay person is competent to report on the onset and reoccurrence of 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). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran seeks service connection for neurological disorders of the left upper and bilateral lower extremities, secondary to service-connected cervical and lumbar spine disabilities. As an initial matter, the Board recognizes that the Veteran is currently diagnosed with bilateral cervical radiculopathy of the upper extremities, and bilateral lumbar radiculopathy of the lower extremities. See VA primary care physician note dated October 27, 2017; VA surgery consultation dated May 15, 2018. The service treatment records (STRs) reflect that the Veteran complained of neck and back pain and left leg pain and weakness during service; however, the STRs are silent as to a diagnosis of neurological manifestations affecting the extremities. Post-service treatment records include a December 1967 VA examination reflecting diagnoses of low back and cervical strain, and a February 1969 private examination diagnosing acute and chronic upper and low back strain. In March 1973, a VA examiner diagnosed chronic lumbosacral strain in March 1973 and associated x-ray revealed mild scoliosis, but no other abnormalities. In May 1975, the Veteran complained of neck and low back pain with numbness in the left leg and left shoulder pain. The Veteran was diagnosed with spondylosis of the lumbar and cervical spine; however, no neurological diagnoses were noted. In May 2003, a VA examiner diagnosed peripheral neuropathies of the upper and lower extremities. The examiner noted that the Veteran experienced radiation of neck and back pain on movement; however, the examiner did not attribute the neuropathies to the Veteran's neck and back disorders and found that the Veteran was negative for radiculopathy of the upper and lower extremities. A January 2013 VA cervical spine examination and July 2015 VA cervical spine and lumbar spine examinations reflect diagnoses of degenerative disc disease of the cervical and lumbar spine; however, the examiners each noted that the Veteran was negative for radiculopathy and other neurologic abnormalities of the cervical and lumbar spine. The Veteran was again afforded VA examinations in December 2016. Although the examiner diagnosed degenerative arthritis and spondylosis of the cervical and lumbar spines, he noted that the Veteran was negative for radiculopathy and other neurologic abnormalities. Nevertheless, as indicated above, the Veteran is currently diagnosed with bilateral cervical radiculopathy of the upper extremities, and bilateral lumbar radiculopathy of the lower extremities. See VA primary care physician note dated October 27, 2017; VA surgery consultation dated May 15, 2018. The current diagnoses of cervical radiculopathy and lumbar radiculopathy necessarily mean that the radiculopathies are related to those segments of the spine. See also VA physical medicine rehabilitation consultation dated September 6, 2017; VA admission note dated February 18, 2018. To the extent that the observations and conclusions of VA doctors who examined the Veteran constitute medical opinions as to the etiology of the Veteran's left upper extremity and bilateral lower extremities radiculopathy, the Board finds this evidence competent, credible and probative: The VA findings and conclusions were authored by licensed doctors who interviewed and examined the Veteran and were therefore familiar with the history of the Veteran's symptoms as well as diagnoses and treatment of his cervical and lumbar spine disabilities and radiculopathies; the findings and conclusions were based on a review of the relevant evidence at that time, including the Veteran's lay statements describing radicular symptoms of his upper and lower extremities. Additionally, the findings contain clear conclusions with supporting data. See Nieves-Rodriguez, 22 Vet. App. at 301-02. Notably, there are no medical opinions or other competent medical evidence of record that weigh against the VA findings. Accordingly, the Board finds the medical findings reflected in the Veteran's VA outpatient records dated 2017-2018 regarding the etiology of the Veteran's left upper extremity and bilateral lower extremities radiculopathy highly probative, competent and persuasive medical evidence in this case. In sum, the evidence reflects that the Veteran was diagnosed with radiculopathy of the left upper extremity and radiculopathy of the bilateral lower extremities, and competent, credible medical evidence, specifically the aforementioned VA treatment records and the Veteran's credible statements describing his radicular symptoms reflected therein, demonstrate that his radiculopathy of the left upper extremity is proximately due to the service-connected degenerative changes of the cervical spine, and his radiculopathy of the bilateral lower extremities is proximately due to the service-connected disability of degenerative changes of the lumbar spine. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for radiculopathy of the left upper extremity, as secondary to the service-connected disability of degenerative changes of the cervical spine, and service connection for radiculopathy of the bilateral lower extremities as secondary to the service-connected disability of degenerative changes of the lumbar spine, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran seeks service connection for hypertension secondary to his service-connected prostatitis with prostate hypertrophy. The January 2017 VA medical opinion concludes that the Veteran's hypertension is less likely than not related to the service-connected prostatitis with prostate hypertrophy because the prostate disorders are caused by inflammation of the prostate gland whereas hypertension is cardiovascular related and "has something to do with elevation of blood pressure." See VA medical opinion dated January 23, 2017. However, the VA examiner did not consider a December 2016 internet article from the Blue Heron Natural Health News, which suggests a link between hypertension and prostate conditions. See Web/HTML documents received December 27, 2016. Additionally, the opinion does not address direct service connection. Although the Veteran's October 2016 claim for compensation reflects that he seeks service connection only on a secondary basis, he is not precluded from establishing service connection for hypertension through proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Notably, the Veteran's STRs include evidence arguably indicating high blood pressure prior to the Veteran's separation from service. See, e.g., Report of Medical Examination dated December 16, 1966 (Section 57 "Blood Pressure" 130/70). Accordingly, on remand, an addendum opinion addressing both direct and secondary service connection must be obtained. See Barr, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Obtain an addendum opinion from an appropriately qualified VA clinician as to the etiology of the Veteran's currently diagnosed hypertension. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The need for another examination is left to the discretion of the medical professional offering the addendum opinion. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that currently diagnosed hypertension onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. (b) If the answer to (a) is negative, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed hypertension was CAUSED or AGGRAVATED by the service-connected prostatitis with prostate hypertrophy. *Any increase/aggravation is sufficient, permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). The examiner should provide a complete rationale for each opinion. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS label and receipt date in parenthesis: (i) Service treatment records reflecting elevated or high blood pressure, including the December 16, 1966 Report of Medical Examination (Pg. 2, Section 57) (see VBMS entry with document type "STR Medical," receipt date 09/04/2015, at PDF page 10 of 14); (ii) Service treatment records reflecting a diagnosis of prostatitis during service (see VBMS entry with document type "STR - Medical," receipt date 08/27/2014, at PDF pages 22, 26, and 27 of 119); and (iii) Internet article entitled "Are Prostate Problems Caused by High Blood Pressure?" from the Blue Heron Natural Health News, which suggests a link between hypertension and prostate conditions (see VBMS entry with document type "Web / HTML Documents," receipt date 12/27/2016). *The Board's reference to evidence in this context should not be construed as a determination of its credibility. See Smith v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 739 (April 27, 2020). The examiner should provide a complete rationale for each opinion. 3. Ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 4. Thereafter, readjudicate the remanded claim. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, Associate Attorney 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