Citation Nr: 21029443 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-28 406 DATE: May 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 28, 2011 is denied. Entitlement to TDIU from July 28, 2011 to March 14, 2016 and from June 1, 2016 is granted. REMANDED Entitlement to service connection for a skin condition, to include dermatitis, is remanded. Entitlement to service connection for a low back condition, to include lumbar strain and pain, is remanded. FINDINGS OF FACT 1. Prior to July 28, 2011, the preponderance of the competent and probative evidence of record does not demonstrate that the Veteran was unable to obtain or maintain employment solely due to her service-connected PTSD. 2. From July 28, 2011, the Veteran was not able to obtain or retain substantially gainful employment due to her service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU prior to July 28, 2011 have not been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). 2. The criteria for entitlement to TDIU from July 28, 2011 to March 14, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). 3. The criteria for entitlement to TDIU from June 1, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1997 to August 1998 and January 2003 to March 2004 with additional National Guard service. She appeals a May 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for a skin condition and TDIU. She also appeals a November 2014 rating decision denying entitlement to service connection for a low back condition. Originally, the Veteran requested a hearing before the Board of Veterans' Appeals (Board); however, she withdrew her hearing request in June 2019. See May 2019 VA Form 646; see also 38 C.F.R. § 20.704(d). In September 2019, the Board remanded the appeal for further development and the issues are now back before the Board. The Board notes that the Veteran submitted a VA Form 21-8940 in April 2020, which the AOJ construed as an increased rating claim for PTSD and a new freestanding claim for TDIU. A subsequent August 2020 rating decision denied an increased rating for PTSD and entitlement to TDIU. In response, the Veteran filed a VA Form 10182 in December 2020. The December 2020 VA Form 10182 pointed to the August 2020 rating decision and did not reference the December 2020 Supplemental Statement of the Case (SSOC) regarding, inter alia, TDIU. The December 2020 VA Form 10182 also did not check the box indicating a desire to opt into the Appeals Modernization Act (AMA) system from the aforementioned SSOC. As such, the Board does not construe the December 2020 VA Form 10182 as a valid opt-in to the AMA system from the December 2020 SSOC and will proceed to adjudicate the TDIU claim in the instant decision in the legacy system. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Currently, the Veteran's only service-connected disability is PTSD. From March 15, 2016 to May 31, 2016, the Veteran's PTSD had a total disability rating, or 100 percent; there is no need to determine the Veteran's potential entitlement to TDIU during this period as she was already awarded a 100 percent rating for the very disability she contends renders her unable to secure and maintain substantially gainful employment. See January 2021 rating decision codesheet. Thus, the Board will only focus on entitlement to TDIU prior to March 15, 2016 and from June 1, 2016. The Veteran meets the schedular requirement for entitlement to TDIU during the entire appeal period as her service-connected PTSD was rated at 70 percent disabling. Therefore, the narrow issue before the Board is whether the Veteran was unable to secure or follow a substantially gainful occupation due to her PTSD. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board will consider the following factors: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The record reflects the Veteran completed high school and an associate degree in business. See March 2016 VA treatment records. She served in the Army and National Guard with a military occupational specialty (MOS) of motor transportation operator. See DD Form 214. During her service with the National Guard, the record reflects she worked fulltime managing a fast-food restaurant from January 1999 to June 2005. See Social Security Administration (SSA) records. Although the Veteran's representative contends her last fulltime employment ended in 2007, the record reflects otherwise. See March 2015 DRO hearing transcript at 10. In 2007, the record reflects the Veteran was "laid off from Cataler" as a factory operator, "moved to North Carolina in December 2009," and looked for employment while taking "a few business courses at Catawba Community College." See, e.g., June 2011 VA examination report; April 2020 VA Form 21-8940. Indeed, the record contains a gap in substantial employment from 2007 to 2010, but prior to the period on appeal. After moving to North Carolina in December 2009, the Veteran's employment history is less clear but it appears she worked full time as a coder for Shurtape Technologies for around five months, then was a full-time assistant manager of a fast food restaurant for approximately another five months before her unemployment in July 2011. Id.; see also May 2016 VA examination report ("stopped working in 2011 as a restaurant manager because medical appointment presented problems in attendance"); Social Security Administration records (Manager from April 2011 to July 2011). While applying for Social Security benefits in December 2011, the Veteran noted her last date of employment was July 27, 2011 and the record, noted above, corroborates her last substantial employment was in July 2011. See February 2012 SSA records. Although the Veteran entered into VA's compensated work therapy (CWT) program in August 2017 and she was offered a full time position at a local VAMC starting in May 2018, the record reflects she was arrested in June 2018 for possession and lost her job. See August 2017, May 2018, and June 2018 VA treatment records. The Board finds the Veteran's placement in the CWT program akin to a protected work environment, in that the Veteran started part-time work through a VA training program and received work accommodations as part of the rehabilitation program. Additionally, the record reflects the Veteran only worked full-time at her VAMC for one month before she became unemployed due to her PTSD symptoms; thus, she did not maintain substantial employment during this time. As such, the Board finds the Veteran is not entitled to TDIU prior to July 28, 2011 as the record reflects her ability to obtain employment prior to July 28 211 appears to be due to her move to North Carolina and she was substantially employed during. However, based on the analysis below and providing the benefit of the doubt, the Board finds the Veteran is entitled to TDIU from July 28, 2011. Overall, based on the Veteran's aforementioned education and work history, the Board finds she has the skill and training to work in unskilled labor or in a field similar to her previous occupations, including customer service-based managerial positions or typical unskilled office positions. Mentally, the Veteran is service connected for PTSD, to include substance abuse. See February 2020 VA medical opinion. The record reflects the Veteran's PTSD symptoms include anxiety, suspiciousness, panic attacks, chronic sleep impairment, and difficulty establishing relationships and adapting to stressful circumstances, including work. See August 2012 VA examination report. Her PTSD also includes substance abuse of methamphetamines and prescription drugs for which she has been hospitalized on numerous occasions. See January 2020 VA medical opinion; see also September 2015, March 2016, and July 2017 VA treatment records. In February 2012, an SSA psychiatric examiner noted the Veteran would have "extreme difficulties relating to fellow workers and supervisors due," in part, to her "depressed mood and severe anxiety with panic episodes." See July 2012 SSA records. Further, the SSA examiner noted the Veteran would have "significant problems tolerating everyday stressors." Id. The Board finds the SSA examiner's opinion corroborated by the record. For example, the Veteran testified that she had to be sent home during a panic attack at work on more than one occasion. See March 2015 DRO hearing testimony at 12. In June 2013, a vocational specialist noted the Veteran had "difficulty getting along with co-workers and supervisors as well as the general public" and she "was fired from her last job because she got in a fight with a co-worker." See June 2013 C.V. vocational assessment. After review of the record and interview with the Veteran, C.V. opined the Veteran was "not able to engage in gainful employment at any exertional level." Id. As rationale, C.V. noted the Veteran had marked limitations to completing basic work-related activities such as relating to co-workers, dealing with work stress, and behaving in an emotionally stable manner. Id. (citing to June 2013 J.A. report). The Board agrees with C.V. that any "employer would not tolerate unprovoked irritability...the inability to establish and maintain relationships with co-workers, and deficiencies in work." Id. The record also corroborates this opinion. For example, a previous employer noted the Veteran was laid-off for "violation of the attendance policy" and the Veteran testified she argued with coworkers, especially in the restaurant industry. See January 2021 VA Form 21-4192; see also March 2015 DRO hearing testimony at 16-17. Further, the Veteran consistently stated her "anxiety at work" and basic attendance requirements were the reasons she was unable to work due to her PTSD. See May 2016 VA examination report. In summation, the Board agrees with C.V.'s opinion that the Veteran does not have the mental ability to perform the activities required for substantial employment in her prior occupational fields. The severity of her psychiatric symptoms combined with her educational and occupational experience support a conclusion that the Veteran is unable to secure and follow substantially gainful employment as a result of her service-connected PTSD from July 28, 2011. Hence, resolving all doubt in the Veteran's favor, entitlement to TDIU from July 28, 2011 to March 15, 2016 and from June 1, 2016 is granted. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. However, entitlement to TDIU prior to July 28, 2011 is denied, as the record reflects the Veteran was substantially employed. REASONS FOR REMAND Skin Condition In June 2011, the Veteran was afforded a VA skin examination and was diagnosed with contact dermatitis and urticaria; however, no opinion was provided by the VA examiner regarding the etiology of these skin conditions. The Veteran, a Persian Gulf Veteran, stated her skin condition was a chronic disability that manifested shortly after her Gulf War service. See January 2011 Veteran claim. As such, the September 2019 Board remand requested a medical opinion to assess whether the Veteran's skin condition was an undiagnosed illness. In January 2020, a nurse practitioner correctly noted the Veteran's record reflected a diagnosis of dermatitis "several times." See January 2020 VA medical opinion. However, the nurse practitioner incorrectly stated "there is a twelve-year gap between [the Veteran's] separation from service and first diagnosis of dermatitis." Id. The Veteran contends a rash began "less than a year of being home" from Kuwait and she is competent to report the history of these symptoms. See, e.g. March 2015 Decision Review Officer (DRO) hearing transcript at 7; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, her DD Form 214 reflects the Veteran last served on active duty from January 2003 to March 2004 and served in Kuwait until February 2004 and medical evidence reflects she was treated for dermatitis in October 2010. See October 2010 Spring Road Family Practice records; see also June 2011 VA examination report ("treated for first rash in 2010"). This is only six years after her separation from service, not twelve years as incorrectly stated by the January 2020 VA nurse practitioner. Thus, the January 2020 medical opinion is inadequate as it was based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Further, the nurse practitioner did not consider the Veteran's competent lay statements or answer the question provided by the September 2019 Board remand. As such, a remand is required to obtain a proper medical opinion regarding the etiology of the Veteran's dermatitis. Low back condition The Veteran contends her low back pain began during her service in Kuwait. See December 2010 Unifour Pain treatment center records. Specifically, she noted her low back pain started in 2003 when she hit her head on the roof of her truck while driving on unpaved terrain in Iraq. See, e.g., February 2010 VA Form 21-526; June 2011 VA examination report; January 2020 VA examination report. The Veteran generally contends the pain was not severe enough to seek medical attention but continued to increase until she sought treatment in 2009. See April 2009 Conover Family Practice records ("low back pain for about six months"); see also March 2015 DRO hearing transcript at 5. In January 2020, a VA examiner opined that the Veteran's "lumbosacral strain" was less likely than not related to her claimed in-service injury. As rationale, the examiner noted the Veteran's in-service lumbar strain was "acute only" because the record does not note medical treatment until 2009, "five years post-service," and "there is not sufficient objective documentation to support relationship between current condition and service." See January 2020 VA examination report. The Board finds this opinion inadequate as the evidence of record does not note the Veteran was diagnosed with lumbosacral strain in-service; her service treatment records (STRs) for this time period are missing from her file. Additionally, the Veteran competently stated her low back pain continued since her in-service injury and she did not receive medical care until the pain became unmanageable. See, e.g., March 2015 DRO hearing transcript at 5. Of record, the Veteran first sought treatment for her low back pain in April 2009 when she noted "no known injury" but her pain was "worse" after helping people move. See April 2009 Conover Family Practice records. In December 2010, the Veteran sought treatment for her lumbar pain and noted "she was in the military several years ago and suffered this ongoing injury that has gotten worse over time." See December 2010 Unifour Pain Treatment Center Records. As the Veteran's competent lay statements were not taken into consideration and the VA examiner inaccurately stated the Veteran suffered lumbar strain in service, this opinion is inadequate. A January 2021 VA examiner provided a second negative medical opinion stating the Veteran's in-service "lumbosacral strain was acute only." As rationale, she stated there was "no evidence of chronicity of care," the Veteran's symptoms were "subjective only," and STRs were silent for treatment of any low back pain. See January 2020 VA examination report. However, as noted above, the Veteran's STRs for service from January 2003 to March 2004 are not on file; therefore, it is inaccurate to state the STRs are silent for treatment. See September 2012 VA memorandum. Of record, however, is a soldier's statement corroborating the Veteran's in-service account of her injury. See April 2010 M.F.P. statement. Both the Veteran and her fellow soldier are competent to report the Veteran's history and symptoms of low back pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay statements are "subjective" they are competent evidence the Veteran's low back pain continued from service to the present day. See March 2015 DRO hearing transcript at 5. As such, merely citing the absence of evidence, without explaining why it weighs against the Veteran's claim and ignoring the Veteran's lay statements of record renders this VA examiner's opinion inadequate. See Horn v Shinseki, 25 Vet. App. 231, 239, n.7 (2012). As noted above, the Veteran's STRs for active duty from January 2003 to March 2004 are not of record. See September 2012 VA memorandum. Additionally, STRs from the Veteran's National Guard service are also not of record. The record reflects the Veteran served in the National Guard from January 1999 to March 2005, not counting her year of active duty. See military personnel records. VA has a duty to obtain relevant records, including National Guard medical records, which do not appear to be on file. See 38 C.F.R. § 3.159(c)(2). On remand, the AOJ should make further attempts to locate these records. The matters are REMANDED for the following action: 1. Obtain all outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. Obtain the Veteran's complete (a). National Guard personnel and treatment records, from January 1999 to March 2005, and (b). STRs from January 2003 to March 2004 active duty service. If any identified records are not obtainable, or none exist, the Veteran and her representative should be notified, and the record clearly documented. 3. After the develop of #1-2 above is complete, schedule the Veteran for an examination to determine the nature and etiology of the Veteran's current skin condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion should include a notation that this review took place. After a thorough review of the record and examination of the Veteran, the VA examiner should provide a diagnosis for the skin condition demonstrated by the Veteran over the course of the appeal period. Then, the examiner should answer the following: (a) If no diagnosis is made, the examiner must opine whether the Veteran's skin condition represents manifestations of an undiagnosed illness. (b) If a clinical diagnosis for a skin condition is made, the examiner must opine: Whether is it at least as likely as not (a 50 percent probability or more) that the skin condition was incurred in or is otherwise related to her time in service? AND Is the etiology OR pathophysiology of this skin condition not understood AT ALL as to this particular Veteran? In rendering these opinions, the examiner should consider the Veteran competent to report her symptoms and history and the examiner is to discuss the Veteran's assertions of her skin condition. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the examiner must provide the reasons why an opinion would require speculation. As such, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the develop of #1-2 above is complete, schedule the Veteran for an examination to determine the nature and etiology of the Veteran's current low back condition, to include pain and lumbar strain. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion should include a notation that this review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) that the Veteran's low back condition, to include lumbar strain and pain, was incurred in or is otherwise related to her reported in-service injury in 2003 when she hit her head on the roof of her truck while driving on unpaved terrain in Iraq? Is the etiology OR pathophysiology of any diagnosed back condition not understood AT ALL as to this particular Veteran? The examiner should note the Veteran is competent to report her symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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