Citation Nr: 21040294 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 13-28 615 DATE: July 3, 2021 ORDER Service connection for glaucoma (claimed as secondary to service-connected type II diabetes mellitus (DM II)) is denied. Service connection for hypertension is denied. Service connection for a heart disorder (left bundle branch block) is denied. REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Veteran's glaucoma is proximately due to or aggravated by service-connected DM II. 2. The preponderance of the evidence weighs against finding that the Veteran's hypertension was incurred in or is causally related to service; or is proximately due to or aggravated by a service-connected disability, to include obesity as an intermediate cause. 3. The preponderance of the evidence weighs against finding that the Veteran's heart disorder (left bundle branch block) was incurred in or is causally related to service; or is proximately due to or aggravated by a service-connected disability, to include obesity as an intermediate cause. CONCLUSIONS OF LAW 1. The criteria for service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b), 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b), 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a heart disorder (left bundle branch block) have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b), 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to February 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2013 and August 2013 rating decisions. In February 2016, the Board remanded the issues of service connection for glaucoma and a heart disability and a higher rating for PTSD. The Board also denied service connection for sleep apnea and hypertension. The Veteran appealed these denials to the United States Court of Appeals for Veterans Claims (Court), which in May 2017 issued a judgment that set aside the Board's denials of service connection for OSA and hypertension, and remanded these matters for readjudication consistent with instructions outlined in its April 2017 memorandum decision. Following the Court's remand, the Board, in November 2017, remanded the issues of service connection for OSA and hypertension for additional development. In January 2019, the Board again remanded these matters for additional evidentiary development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Service Connection Legal Criteria In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may 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). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In Walsh v. Wilkie, the Court further held, that the Board needs to consider the obesity-intermediate step theory predicated on aggravation where appropriate. Thus, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Walsh v. Wilkie, 32 Vet. App. 300 (2020). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all of the evidence in the claims file, including the medical and lay evidence, to determine its probative value. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). 1. Service connection for glaucoma (claimed as secondary to service-connected DM II) Factual Background & Analysis The Veteran has a diagnosis of primary open angle glaucoma, bilaterally. See January 2013 VA examination. He asserts that his glaucoma is secondary to his service-connected DM II. See June 2012 VA 21-526 Veterans Application for Compensation or Pension; May 2013 NOD. In February 2016, the Board remanded this issue for an addendum opinion. Shortly thereafter, a VA examiner opined that the Veteran's glaucoma was not caused or aggravated by his service-connected DM II. See February 2016 VA examination. The examiner's rationale consisted of a single sentence, indicating that there is no direct link between the two diseases. Consequently, the Board again remanded this issue for an addendum opinion in January 2019. The Veteran underwent an in-person VA examination in April 2021. As to the issue of secondary service connection, the examiner opined that it is less likely than not that the Veteran's glaucoma is proximately due to or aggravated by service-connected DM II. The examiner explained that the Veteran has a thick healthy retinal nerve fiber layer in both eyes, indicating a very mild disease. Although glaucoma can be exacerbated by diabetes, the examiner noted, the fact that both the Veteran's glaucoma and diabetes are of mild severity belies the existence of a nexus between the two disabilities. The Board finds that this opinion is entitled to significant probative value because the examiner based their opinion on the medical evidence of record and their training, experience, and expertise as a medical professional. The Board has considered medical treatise evidence submitted in support of this claim. Particularly, a meta-analysis regarding the increased risk of glaucoma in patients with diabetes. See December 2018 Remarks to SSOC (Exhibit 2). Medical treatise evidence can, in some circumstances, constitute competent medical evidence, especially when combined with an opinion of a medical professional. See Sacks v. West, 11 Vet. App. 314, 317 (1998); see also 38 C.F.R. § 3.159(a)(1). However, generic information in a medical journal or treatise is normally too general and inconclusive to constitute the sole basis for establishing a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 227 (1999). The Board has considered lay testimony and opinions from the Veteran and his representative regarding a causal relationship between his glaucoma and his DM II. Crucially, they are not competent to provide the requisite cause of glaucoma here because this determination requires medical expertise and training which they have not been shown to possess. 38 C.F.R. § 3.159(a)(1); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, there is no competent medical evidence which substantiates a nexus or otherwise suggests a causal relationship between the Veteran's service-connected DM II and his glaucoma. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). A VA examiner found that it was less likely than not that the Veteran's service-connected disability DM II caused or aggravated his glaucoma. The examiner offered an adequate rationale to support that opinion. The Board affords that opinion substantial probative weight as the examiner reviewed the claims file and explained the basis for her opinion. On the other hand, the Veteran provided generic treatise-type evidence to support his claim. While that evidence is entitled to some probative weight, it is less than the probative value afforded to the VA examiner's opinion. As such, the Board affords the most probative evidence to the VA examiner's opinion, which is against a finding of causation or aggravation. Accordingly, the preponderance of the evidence weighs against finding that the Veteran's glaucoma is proximately due to aggravated by his service-connected DM II. The criteria for secondary service connection are not met and the claim must be denied. 38 C.F.R. § 3.310(a). 2. Service connection for hypertension 3. Service connection for a heart disorder (left bundle branch block) Factual Background & Analysis The Veteran has a diagnosis of essential hypertension. A 2013 VA examination report reflects an onset of hypertension around 2000 that is associated with weight gain. The Veteran originally claimed that his hypertension is proximately due to or aggravated by his service-connected PTSD. In November 2017, the Board remanded this issue for an addendum opinion. In detail, the Board requested an opinion as to whether the Veteran's hypertension was related to herbicide exposure in service or secondary to the Veteran's service-connected PTSD, to include medications used to treat PTSD. In a November 2018 opinion, a VA examiner opined that the Veteran's hypertension is linked to his diagnosis of metabolic syndrome and less likely than not related to medications used to treat his service-connected PTSD. The examiner explained that metabolic syndrome is a combination of weight, lipids abnormalities, and hypertension, and noted that the Veteran's treatment records were consistent with weight gain. The Veteran's attorney subsequently contended that the Veteran's hypertension is due to weight gain caused by the Veteran's service-connected disabilities, including PTSD, effectively seeking service connection under the obesity intermediate-step theorem. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Consequently, the Board again remanded this issue for addendum opinions in January 2019. In an October 2020 VA addendum opinion, the examiner opined that it is less likely than not that the Veteran's left bundle branch block and hypertension are directly related to service, to include exposure to herbicide agents. The examiner explained that there is no objective medical evidence or reputable medical literature which tends to establish a nexus. Moreover, there is no mechanism of action for a left bundle branch block and hypertension to be caused by herbicide exposure. Further, if these disabilities manifested at the time of exposure there would have been some documentation of symptoms. Conversely, the Veteran had normal blood pressure (112/78) documented in a February 1968 separation examination with no heart or hypertension pathology noted. Regarding secondary service connection, the examiner stated that there is no mechanism of action for proximate causation or permanent aggravation of left bundle branch block and hypertension by PTSD, DM II, or medications to treat those disabilities. The Veteran's greatest risk factor for these disabilities was noted to be "unknown post-service etiologies." The Veteran's hypertension was noted to be "essential" which is defined in medical dictionaries as meaning "of unknown etiology." Finally, the examiner opined that it is less likely than not that the Veteran's obesity is proximately due to or permanently aggravated by decreased activity due to service-connected disabilities or medications used to treat those disabilities. The examiner explained that the Veteran's obesity is due to his diet, specifically his high caloric intake. The examiner cited to an April 2019 VAMC mental health treatment note which documents that the Veteran has been able to intentionally lose weight by adopting a more calorically restricting diet. Initially, the Board finds that service connection on a direct basis for left bundle branch block and hypertension is not warranted. In that regard, the Board finds that the October 2020 VA addendum medical opinion is the most probative evidence of record. The examiner reviewed the evidence of record, including the Veteran's STRs, and determined it to be less likely than not that his left bundle branch block and hypertension are causally related to his service, to include exposure to herbicide agents. The examiner explained that there is no basis for finding a causal relationship when considering the evidence and pertinent medical literature. The examiner based their opinion on the medical evidence of record and their training, experience, and expertise as a medical professional which warrants affording their opinion significant probative weight. There is also no competent medical evidence which cuts against this examiner's findings and conclusions. In sum, the reasoned opinions of the VA examinerswhich weigh against the claimoutweigh any lay assertions made by the Veteran or his representative. The preponderance of the evidence therefore weighs against finding that service connection for a left bundle branch block and hypertension is warranted on a direct basis and to that extent, the claim must be denied. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). The Board next finds that the preponderance of the evidence weighs against finding that secondary service connection for left bundle branch and hypertension is warranted based on proximate causation or aggravation by service-connected disabilities, to include medication to treat those disabilities. As discussed, the November 2018 VA examiner opined that the Veteran's hypertension is linked to his diagnosis of metabolic syndrome (obesity) and less likely than not related to medications used to treat his service-connected PTSD. Further, the October 2020 VA examiner opined that there is no mechanism of action for proximate causation or permanent aggravation of left bundle branch block and hypertension by PTSD, DM II, or medications to treat those disabilities. The Veteran's greatest risk factor for these disabilities were noted to be "unknown post-service etiologies." The Veteran's hypertension was noted to be "essential" which is defined in medical dictionaries as meaning "of unknown etiology." The Board affords these opinions significant probative value because the examiners based their opinions on the medical evidence of record and their training, experience, and expertise as medical professionals. The Board has considered lay contentions made by the Veteran's representative, including citation to medical literature proposing that patients with DM II are at increased risk for developing cardiovascular diseases. See December 2018 Remarks to SSOC (Exhibit 1). Medical treatise evidence can, in some circumstances, constitute competent medical evidence, especially when combined with an opinion of a medical professional. See Sacks v. West, 11 Vet. App. 314, 317 (1998); see also 38 C.F.R. § 3.159(a)(1). However, generic information in a medical journal or treatise is normally too general and inconclusive to constitute the sole basis for establishing a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 227 (1999). The Board has also considered lay testimony and opinions from the Veteran and his attorney regarding a relationship between his left branch block and hypertension and service-connected PTSD, DM II, and/or prescribed medications to treat those disabilities. Crucially, they are not competent to provide the requisite cause of his cardiovascular disabilities here because this determination requires medical expertise and training which the they have not been shown to possess. 38 C.F.R. § 3.159(a)(1); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, there is no competent medical evidence which substantiates a nexus or otherwise suggests a causal relationship between the Veteran's service-connected disabilities and his cardiovascular disabilities. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In sum, a VA examiner found that it was less likely than not that the Veteran's service-connected-disabilities caused or aggravated his left branch block and hypertension. The examiner offered an adequate rationale to support that opinion. The Board affords that opinion substantial probative weight as the examiner reviewed the claims file and explained the basis for her opinion. On the other hand, the Veteran provided generic treatise-type evidence to support his claim. While that evidence is entitled to some probative weight, it is less than the probative value afforded to the VA examiner's opinion. As such, the Board affords the most probative evidence to the VA examiner's opinion, which is against a finding of causation or aggravation. Accordingly, the preponderance of the evidence weighs against finding that secondary service connection is warranted, and, to that extent, the claim must be denied. 38 C.F.R. § 3.310(a). Finally, the Veteran's representative alternatively argues that the Veteran's service-connected disabilities caused him to become obese which is a substantial factor in causing or aggravating his hypertension. The October 2020 VA medical opinion addresses this contention, the examiner opined that it is less likely than not that his service-connected disabilities, to include PTSD, DM II, and the prescribed medications to treat those disabilities, caused or aggravated his obesity. The examiner explained that the Veteran's obesity results from his hypercaloric diet and that his mental health treatment records reflect that he has adopted a calorically restrictive diet to intentionally lose weight. The Board finds that this opinion is entitled to significant probative value because the examiner based their opinion on the medical evidence of record and their training, experience, and expertise as a medical professional. The Board finds that this opinion is entitled to significant probative value because the examiner based their opinion on the medical evidence of record and their training, experience, and expertise as a medical professional. The Board has considered lay contentions made by the Veteran's representative, specifically that the Veteran's PTSD puts him at a heightened risk for obesity, including citation to a medical study that explores the link between these disabilities. Medical treatise evidence can, in some circumstances, constitute competent medical evidence, especially when combined with an opinion of a medical professional. See Sacks v. West, 11 Vet. App. 314, 317 (1998); see also 38 C.F.R. § 3.159(a)(1). However, generic information in a medical journal or treatise is normally too general and inconclusive to constitute the sole basis for establishing a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 227 (1999). Additionally, lay testimony and opinions are not competent to provide the requisite cause of obesity here because this determination requires medical expertise and training which the they have not been shown to possess. 38 C.F.R. § 3.159(a)(1); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, there is no competent medical evidence which substantiates a nexus or otherwise suggests a causal relationship between the Veteran's service-connected disabilities and his obesity. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In sum, a VA examiner found that it was less likely than not that the Veteran's service-connected disabilities caused or aggravated his obesity. The examiner offered an adequate rationale to support that opinion. The Board affords that opinion substantial probative weight as the examiner reviewed the claims file and explained the basis for her opinion. On the other hand, the Veteran has provided generic treatise-type evidence to support his claim. While that evidence is entitled to some probative weight, it is less than the probative value afforded to the VA examiner's opinion. This is because the referenced treatise evidence is generic in nature and does not necessarily apply to the Veteran's situation. As such, the Board affords the most probative evidence to the VA examiner's opinion, which is against a finding of causation or aggravation. Accordingly, the preponderance of the evidence weighs against finding that the Veteran's service-connected disabilities caused or aggravated his obesity, service connection for left branch block and hypertension is not warranted under the obesity-intermediate step theorem. Walsh v. Wilkie, 32 Vet. App. 300 (2020). REASONS FOR REMAND 4. Service connection for OSA (to include as secondary to PTSD) The claim for service connection for OSA was remanded by the Board for further evidentiary development in January 2019 along with the other issues currently before the Board in this appeal. This claim however was not included in the April 2021 SSOC and the evidence does not show that this benefit has been granted. The Agency of Original Jurisdiction (AOJ) is required to issue an SSOC which contains a summary of the evidence, the applicable laws and regulations and an explanation as to the decision previously reached. 38 C.F.R. §§ 19.26, 19.29. However, to fulfil these requirements, it must be complete enough to allow an appellant to present argument before the Board and must contain a summary of the applicable laws and regulations with appropriate citations and a discussion of how such laws and regulations affect the determination. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.29. As it is, generally, a SSOC will be furnished to an appellant when a material defect in a prior SOC or SSOC is discovered, making it inadequate. 38 C.F.R. § 19.31(b)(2), (3). In this case, because the claim for service connection for OSA left out of the April 2021 SSOC, the Veteran has not been apprised as described above, effectively depriving him of due process. As such, adjudication of the most recent evidence and promulgation of a SSOC is needed as indicated The matters are REMANDED for the following action: 1. Contact the Veteran and his representative for information pertaining to any current treatment for OSA at any VA facility and by any private treatment provider. 2. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 3. After all additional records have been obtained and associated with the claims file, but whether records are obtained or not, arrange for any additional development, if needed. 4. Readjudicate the claim for service connection for OSA. If any of the benefits sought remain denied, issue an appropriate SSOC and provide the Veteran and his representative the requisite period in which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Michael Sanford Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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