Citation Nr: 22018093 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 12-00 504 DATE: March 28, 2022 ORDER The Veteran's petition to reopen his claim for entitlement to service connection for a neck disability is granted. Entitlement to an effective date of April 23, 2015, for the grant of the 20 percent rating for osteoarthritis, thoracolumbar spine is granted. Entitlement to a 10 percent disability rating for right hallux valgus is granted. Entitlement to a 10 percent disability rating for left hallux valgus is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for right arm radiculopathy is remanded. Entitlement to service connection for left arm radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for osteoarthritis, thoracolumbar spine is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity, with paresthesias, dorsum of right foot is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity, with paresthesias, dorsum of the left foot is remanded. Entitlement to an effective date earlier than January 4, 2010, for the grant of the 10 percent rating for the Veteran's radiculopathy of the right lower extremity is remanded is remanded. Entitlement to an effective date earlier than January 4, 2010, for the grant of the 10 percent rating for the Veteran's radiculopathy of the left lower extremity is remanded. FINDINGS OF FACT 1. In final September 1994 and September 2010 rating decisions, the Agency of Original Jurisdiction (AOJ) denied service connection for a neck disability. 2. Evidence associated with the record since the issuance of the most recent decision in September 2010 became final relates to unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a neck disability. 3. The Veteran's back disability was service connected in a final September 1994 rating decision at a noncompensable disability rating, effective May 1, 1994. 4. A final April 2000 rating decision increased the rating for the Veteran's service-connected back disability to 10 percent, effective April 8, 1999. 5. A final September 2010 rating decision continued the 10 percent disability rating for the Veteran's service-connected back disability. 6. On April 23, 2015, the Veteran submitted an intent to file a claim for compensation. 7. On May 29, 2015, the Veteran filed a formal claim for increased rating for a lumbar spine disability. 8. Throughout the appeal period, Veteran's service-connected right hallux valgus has been manifested by pain with functional loss. 9. Throughout the appeal period, Veteran's service-connected right hallux valgus has been manifested by pain with functional loss. CONCLUSIONS OF LAW 1. The September 1994 and September 2010 rating decisions denying service connection for a neck disability became final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(b). 2. The criteria for reopening the previously denied claim for service connection for a neck disability are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. 3. The criteria for an effective date of April 23, 2015 for the grant of a 20 percent disability rating for a low back disability are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for a rating of 10 percent for right hallux valgus have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5280. 5. The criteria for a rating of 10 percent for left hallux valgus have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the AOJ. The Veteran was issued a statement of the case in February 2019. Subsequently, VA medical records and examination reports were added to the claims file. In cases where a substantive appeal was received on or after February 2, 2013, as in this case, there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review, if the veteran or his representative submits evidence to the AOJ or the Board; however, the automatic waiver does not apply to VA-generated evidence, such as VA examination reports or VA treatment records. Furthermore, an exception to this general rule is when the additional evidence is either duplicative or not relevant to the issue on appeal. 38 C.F.R. § 20.1305 (c). As for the VA medical records and examination reports added after February 2019, the exception to the general rule applies as they are not pertinent to the issues being decided or are duplicative with evidence already of record. Thus, the Board may proceed with adjudication. The Veteran has also appealed the previously remanded issues of entitlement to service connection for brain cancer, colon cancer, and cancer of the small intestine with metastasis to the liver. When the Veteran was informed that these issues had been returned to the Board for adjudication, his representative submitted a statement, dated January 26, 2022, indicating that he intended to submit additional evidence in support of those claims. As such, the Board has not taken jurisdiction over those issues. Claim to Reopen Neck Disability In a September 1994 rating decision, the RO denied service connection for neck pain, noting that while there was a record of treatment in service for complaints of neck pain, no specific pathology was found and no chronic condition was shown by service treatment records or in post-service medical evidence, including VA examination. The notification letter transmitting the September 1994 rating decision was initially sent to an address in North Carolina; however, the letter in the claims file reflects a correction to an address in Virginia, with a notation that the letter was remailed to that address. The Virginia address was provided by the Veteran at his VA examination in August 1994. There is no evidence showing that this letter was returned to VA as undeliverable. As such, the Veteran was notified of the September 1994 rating decision and his procedural and appellate rights in November 1994 at his address of record. The Veteran did not have representation at that time. He did not file a notice of disagreement within one year of notice of the date VA provided him with the September 1994 rating decision. No additional evidence was received within one year of notice of the decision. As such, the September 1994 rating decision denying of service connection for a neck disability became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 The Veteran applied to reopen his claim in January 2010. In a September 2010 rating decision, the RO informed him that the evidence submitted in connection with the current claim did not constitute new and material evidence as it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The Veteran was notified of the September 2010 rating decision and his procedural and appellate rights in October 2010 at his address of record. His representative was copied on the notice. He did not file a notice of disagreement within one year of notice of the September 2010 rating decision. No additional evidence was received within one year of notice of the September 2010 rating decision. For this reason, the decision denial of service connection for a neck disability became final. Id. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. Evidence received since the September 2010 rating decision became final includes a January 2019 VA examination report provided to assess whether the Veteran's current neck disability was related to service. At the examination, the Veteran reported that he had done 44 parachute jumps in his last six years of service, and that on some of them, he had a hard landing. The Veteran contended that his neck disability may be related to these landings. The January 209 VA examination report is new to the file and raises a reasonable possibility of substantiating the service connection for a neck disability. The Board concludes that the criteria for reopening service connection are met. 38 C.F.R. § 3.156(a). Earlier Effective Date Increased Rating for Back Disability The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). Regulations defining a claim were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). In general, a complete claim must be filed on a form prescribed for the purpose and will be considered filed as of the date it was received by VA. 38 C.F.R. § 3.155(d). A claimant may also submit a saved electronic application, an intent to file form, or have an oral statement of intent to file to a VA employee designated to receive such a communication may constitute an intent to file a claim. 38 C.F.R. § 3.155(b). If a complete claim is received within one year of the filing of an "intent to file," the complete claim will be considered filed as of the date of receipt of the intent to file a claim. 38 C.F.R. § 3.155(d)(1)(ii). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran first filed his original disability claim for a back disability in May 1994. In a September 1994 rating decision, the RO granted the claim, assigning an initial noncompensable disability rating. As noted above, the Veteran was notified of the May 1994 rating decision and his procedural and appellate rights. The Veteran did not file a notice of disagreement with the decision and no additional evidence was added to the record in the year following the issuance of the decision. For this reason, the September 1994 rating decision became final. 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. The Veteran requested reconsideration of his claim in April 1999. In an April 2000 rating decision, the RO increased the Veteran's disability rating for his back disability to 10 percent, effective April 8, 1999. The Veteran was provided notice of this decision in May 2000. His procedural and appellate rights were included and the notification was sent to his address of record. His representative was copied on the notice. He did not file a notice of disagreement within one year of notice of the April 2000 rating decision and no additional evidence was received within that time frame. For this reason, the April 2000 rating decision became final. Id. The Veteran filed a claim for an increased rating for his service-connected back disability in January 2010 and in a September 2010 rating decision, the RO continued the 10 percent disability rating. The Veteran was notified of the September 2010 rating decision and his procedural and appellate rights in October 2010 at his address of record. His representative was copied on the notice. He did not file a notice of disagreement within one year of notice of the September 2010 rating decision and no additional evidence was received during that time. For this reason, the September 2010 rating decision continuing the 10 percent rating became final. Id. On April 23, 2015, the Veteran submitted an intent to file a claim for compensation. On April 29, 2015, the RO sent the Veteran a letter acknowledging the receipt of his intent to file. The letter informed the Veteran that, if his completed application was received within one year from the date that his intent to file was received and he may be compensated from the date of his intent to file. The Veteran filed his claim for an increased rating for his back disability on May 29, 2015, within one year of filing his intent to file. The RO granted an increased rating to 20 percent effective May 29, 2015, the date of his claim. The RO did not address the Veteran's intent to file. In this case, as the Veteran filed his formal claim only a little over a month following his intent to file, the appropriate effective date for the Veteran's increased rating for his back disability is April 23, 2015, the date he filed his intent to file. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed in order to determine whether the evidence provides a date in the year prior to April 23, 2015 when it was factually ascertainable that his back disability met the criteria for a higher rating. 38 C.F.R. § 3.400(o). The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The pertinent evidence in the record in the year prior to April 23, 2015 is comprised of VA medical records which reflect ongoing treatment for the Veteran's lumbar spine disability; however, these records reflect only reports of ongoing pain and discomfort, and do not provide a factually ascertainable date when the symptoms of his back disability worsened to such an extent that a higher disability rating was warranted. The evidence persuasively supports a finding that there is no factually ascertainable date showing an increase in disability within the one year prior to April 23, 2015, and therefore there is no benefit of the doubt to resolve in the Veteran's favor. See 38 U.S.C. § 5110(a) and (b)(2); 38 C.F.R. § 3.400(o)(1). As such, an effective date of April 23, 2015, but no earlier, is warranted for the Veteran's service-connected back disability. Increased Rating Bilateral Hallux Valgus In ascertaining the appeal period for increased rating claims on appeal, a determination must be made as to whether the prior decisions on these issues became final. The Veteran was granted service connection for bilateral hallux valgus in a September 1994 rating decision. As noted above, the Veteran received a copy of this decision at this address of record. He did not file a notice of disagreement with the decision and no additional evidence was added during the appeal period. As such, the September 1994 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a claim for an increased rating for his service-connected bilateral hallux valgus in January 2010 and in a September 2010 rating decision, the RO confirmed and continued the noncompensable rating. The Veteran was notified of the September 2010 rating decision and his procedural and appellate rights in October 2010 at his address of record. His representative was copied on the notice. He did not file a notice of disagreement within one year of notice of the September 2010 rating decision and no additional evidence was received within one year of notice of the September 2010 rating decision. For this reason, the decision denial of service connection for a neck disability became final. Id. The Veteran filed his claim currently on appeal for an increased rating for his bilateral hallux valgus in May 2015. As such, the current rating appeal begins in May 2015. The Veteran's bilateral hallux valgus is rated as noncompensable. Hallux valgus, unilateral, warrants a 10 percent rating when operated with resection of the metatarsal head, or if severe and the equivalent of amputation of the great toe. 38 C.F.R. § 4.71A, Diagnostic Code 5280. Effective February 7, 2021, VA amended the rating schedule; however, Diagnostic Code 5280 was unchanged. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus severe, if equivalent to amputation of great toe. A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Here, the evidence shows the right and left hallux valgus are manifested by pain that warrants an initial 10 percent evaluations for each foot, based on an actually painful joint throughout the appeal period. See Id. The Veteran was provided with a VA examination in August 2015. The symptoms noted to be associated with the Veteran's service-connected hallux valgus were listed as numbness in both big toes with stabbing pain in his toes and feet, heel pain, Achille's pain, and sometimes no feeling in his feet causing him to stuble. The examiner diagnosed pes planus in addition to the service-connected hallux valgus and noted that the symptoms associated with that diagnosis included pain on use and manipulation of the feet. The Veteran was provided with a VA examination in January 2019 to assess his service-connected hallux valgus. The examiner additionally diagnosed bilateral degenerative arthritis of first metatarsophalangeal joint. The Veteran reported pain along the outsides of his big toes due to his service-connected hallux. The examiner noted that this caused functional impairment in weight bearing. The Board finds that the Veteran's service-connected bilateral hallux valgus meet the criteria for 10 percent disability ratings for each foot throughout the appeals period. The Veteran has consistently reported pain and is competent to do so. The available records consistently demonstrate that throughout the appeal, the Veteran has had pain associated with her bilateral hallux valgus with functional impairment, thus meeting the criteria for a minimum 10 percent evaluation. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For these reasons, the criteria for initial 10 percent disability ratings for right and left hallux valgus are met. As a 10 percent rating is the maximum rating under Diagnostic Code 5280, a rating higher than 10 percent under this diagnostic code is not available. There is no other diagnostic code applicable to rating this disability. See Copeland v. McDonald, 27 Vet. App. 333, 336 (2015) (the Court finding that the eight foot conditions specifically listed under 38 C.F.R. § 4.71a could not be rated under Diagnostic Code 5284 (other foot injuries)). REASONS FOR REMAND Entitlement to Service Connection Neck Disability The Veteran contends that his current neck disability, diagnosed as degenerative joint disease of the cervical spine, is due to service. At his January 2019 VA examination, he reported that while in service he was a paratrooper the last 6 years of service and that while he was not hurt on the jumps, he had some hard landings in the 44 jumps performed during his career. Service personnel records confirm that the Veteran served on parachute duty. The Veteran was provided with a VA examination in August 1994. He reported dull, intermittent neck pain that began while in service in the mid-1980's. The examiner noted neck pain but found no obvious objective findings and therefore did not provide a nexus opinion. The Veteran was provided with another VA examination in January 2010. The examiner diagnosed osteoarthritis of the cervical spine but did not provide a nexus opinion. At an examination in August 2010, the Veteran reported that he began having neck stiffness when he was a paratrooper in 1989 or 1990. The examiner noted that service treatment records reflected complaints of neck pain in 1989. In 1998 he was diagnosed with cervical radiculitis causing left hand pain and tingling and at the time of the examination, X-rays revealed degenerative disc disease and degenerative joint disease of the cervical spine. The examiner found that the documented complaints of neck pain had been episodic and infrequent and that, without more consistent documentation to establish chronicity, a determination could not be made that his current cervical spine disability was related to his complaints of neck pain during service. The Veteran was provided with a VA examination in January 2019. The examiner noted the Veteran's history and opined that, without chronicity, it was less likely that the muscle strain experienced in service was related to the degenerative changes noted in 2010. The August 2020 and January 2019 VA opinions are inadequate for the following reasons. First, these examiners did not address the Veteran's reports that his pain, albeit intermittent, had been ongoing since service. In addition, the examiners did not address the Veteran's contentions that he began having stiffness in his neck in service. Finally, the examiners did not discuss the effects of his many jumps in service as a paratrooper on his neck. As an adequate opinion has not been provided for this issue, remand is necessary to obtain a VA opinion as to whether the Veteran has a current neck disability that is related to service, to include the impact of his service as a paratrooper. Service Connection - Radiculopathy of the Right and Left Upper Extremities As the Veteran is claiming service connection for radiculopathy of the right and left upper extremities as secondary to his neck disability, the issues are inextricably intertwined. A remand of the claims for entitlement to service connection for radiculopathy of the right and left upper extremities is required. Increased Rating Osteoarthritis of the Thoracolumbar Spine The Veteran contends that he is entitled to a higher disability rating for his service-connected lumbar spine disability. He underwent a VA examination in January 2019. Unfortunately, was inadequate for the following reasons. The examiner noted that passive range of motion measurements could not be taken with regard to the Veteran's lumbar spine but did not explain why that was so. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In addition, when the examiner was asked whether functional ability was limited with repeated use over a period of time, he stated that he was unable to provide an opinion without mere speculation as the Veteran was not being examined after repeated use over time. However, the examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. In addition, he did not indicate that the speculation was due to lack of knowledge within the medical community. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As such, the Veteran should be provided with another VA examination to assess the current nature and severity of his service-connected lumbar spine disability. This is particularly true as consideration must be given to whether motion of the spine is limited to such degree that it could be considered the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Increased Ratings Radiculopathy of the Right and Left Lower Extremities As the examination for the lumbar spine disability will provide pertinent information as to the level of disability for the Veteran's radiculopathy of the right and left lower extremities, these issues are inextricably intertwined and must be remanded. Earlier Effective Dates Grant of 10 Percent Rating for Right and Left Radiculopathy of the Lower Extremities In its March 2018 remand, the Board's directive was to provide a statement of the case for several issues, including earlier effective dates for the grant of 10 percent ratings for radiculopathy of the right and left lower extremities. The Veteran was provided with a statement of the case in February 2019; however, the statement of the case did not include the issues of earlier effective dates for the ratings provided for radiculopathy of the lower extremities. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Another remand is required to comply with the Board directive to provide the Veteran with a statement of the case for these issues. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his neck disability. The examiner must review the claims file. The examiner is asked to provide an opinion as to whether the Veteran's current neck disability (1) is related to or began during service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. In particular, the examiner must address the Veteran's contentions that he began having dull, intermittent pain and ongoing stiffness in his neck in service and that he performed 44 parachute jumps in service, some with hard landings. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Send the Veteran and his representative a statement of the case that addresses the issues of earlier effective dates for the grant of 10 percent rating for right and left radiculopathy of the lower extremities. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Harrigan Smith 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