OSTEOARTHRITIS

T.D. JONES · 2022 · Case ID: 22036504

MIXED

Summary

The veteran, who served from June 1980 to June 1992, appeals the denial of an increased rating for his left knee degenerative arthritis and the grant of Total Disability based on Individual Unemployability (TDIU). The Board reviewed the evidence concerning the left knee, including multiple VA examinations and the veteran's own statements about pain, flare-ups, and functional limitations. The most recent examination in November 2021 indicated pain on flexion at 110 degrees and extension to zero degrees, with difficulty walking, standing, or sitting for extended periods. However, the Board found that the veteran's symptoms did not demonstrate the persistent instability or significant limitation of motion required for a higher rating under the applicable diagnostic codes, noting that the 10 percent rating for painful motion already accounted for his symptoms. The Board also noted that the veteran was awarded a separate 20 percent rating for left knee instability, which was not appealed. Therefore, the Board denied an increased rating for the left knee. Regarding TDIU, the Board considered the veteran's service-connected disabilities, including depression (50%), left knee instability (20%), right knee patellar repair (10%), left knee arthritis (10%), tinnitus (10%), and right inguinal hernia (noncompensable). The veteran met the schedular criteria for TDIU beginning August 16, 2012, with a combined rating of 70% and one disability rated at 50%. The Board reviewed the veteran's limited education and inconsistent employment history, noting that his depression, knee pain, tinnitus, and hernia disabilities impacted his ability to maintain substantially gainful employment. Private vocational and medical opinions supported unemployability. Resolving doubt in the veteran's favor, the Board granted TDIU.

Rationale

Painful motion already compensated at 10%; Did not meet criteria for higher rating based on range of motion; Instability not demonstrated to warrant higher rating

Special Benefit

TDIU

Docket No.

18-20 955

Full Decision Text

Citation Nr: 22036504
Decision Date: 06/24/22 Archive Date: 06/24/22

DOCKET NO. 18-20 955
DATE: June 24, 2022

ORDER

A disability rating in excess of 10 percent for left knee degenerative arthritis is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDINGS OF FACT

1. The Veteran's left knee disability is productive of painful and limited motion.

2. The Veteran's service-connected disabilities preclude him from following and maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 10 percent for a left knee disability are not met. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.71a, DC 5003-5260.

2. The criteria for an award of a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1-4.14, 4.21, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1980 to June 1992.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

These matters were previously before the Board in February 2019 and April 2021 and were remanded for additional development. The case is once again before the Board.

Increased rating

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).

Further, although pain may cause a functional loss, pain itself does not constitute functional loss. Under 38 C.F.R. § 4.59, at least the minimum compensable rating is warranted for actually painful, unstable, or malaligned joints. The plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).

Separate evaluations may be assigned for separate periods of time based on the facts found. These "staged ratings" are appropriate for a rating claim when the findings show distinct time periods during the appeal where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (
keletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).

Left knee

The Veteran's left knee disability is currently assigned a 10 percent rating under DC 5003-5260, the minimum compensable rating for painful motion of the knee. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the Veteran was compensated for limitation of flexion (DC 5260) due to degenerative arthritis (DC 5003).

For the reasons set forth below, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for an increased disability rating.

Legal criteria

DC 5260 provides disability ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees warrants a 0 percent rating. Flexion of the leg limited to 45 degrees warrants a 10 percent rating. Flexion of the leg limited to 30 degrees warrants a 20 percent rating. Flexion of the leg limited to 15 degrees warrants a 30 percent rating.

DC 5257 provides a disability rating based on knee subluxation or instability. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran.

Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). "Slight," as relevant to a physical condition, is defined as "small of its kind or in amount." See Merriam-Webster's Dictionary. It is similar to "mild," which is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including in Diagnostic Code 5257, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 5257, which establishes a successive, tiered rating structure, it represents the highest or most extreme level.

As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability.

Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." See Merriam-Webster's Dictionary. Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation.

Lastly, regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. Note (2).

The ratings criteria for the knee also contemplate limitation of extension under DC 5261. Extension of the leg limited to 5 degrees warrants a 0 percent rating. Extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Extension of the leg limited to 20 degrees warrants a 30 percent rating. Extension of the leg limited to 30 degrees warrants a 40 percent rating. Extension of the leg limited to 45 degrees warrants a 50 percent rating.

Other diagnostic codes relating to the knee are DC 5256 for ankylosis, DC 5258 and 5259 for symptomatic dislocation or removal of semilunar cartilage, DC 5262 for impairment of tibia and fibula, and DC 5263 for genu recurvatum. As these conditions are not shown on examination of the Veteran, or in the medical evidence of record, the Board finds that application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a.

Discussion

In May 2017, the Veteran underwent a VA examination. Active range of motion testing revealed pain on flexion at 120 degrees and extension to zero degrees. As noted in the February 2019 Board decision, the examination was inadequate for rating purposes because it did not provide an estimated loss in range of motion during flare-ups or perform non-weightbearing testing.

In August 2019, the Veteran reported flare-ups in his left knee lasting one to two days, described as mild, precipitated by the weather, and alleviated with rest and elevation. Active range of motion testing revealed pain on flexion to 125 degrees and extension to zero degrees. The Veteran was able to perform the repetitive use testing with at least three repetitions without additional loss in range of motion. The examiner estimated that the Veteran's range of motion would be 120 at flexion and zero degrees at extension after repeated use and 115 degrees at flexion to zero degrees extension during flare-ups. The examiner found no evidence of pain during non-weight bearing testing.

In January 2020, the Veteran reported he
bearing testing.

In January 2020, the Veteran reported he did not have flare-ups, but did have chronic pain that was exacerbated with repeated use. Range of motion testing revealed flexion to 90 degrees and zero at extension. Pain was noted on non-weight bearing testing, but the examiner did not indicate if his range of motion was affected.

In November 2021, pursuant to a Board remand, the Veteran underwent an additional examination. Upon examination, left knee range of motion testing revealed pain on flexion at 110 degrees and extension to zero degrees. The Veteran was able to perform a repetitive use test with at least three repetitions without additional loss in range of motion. The examiner estimated the Veteran's range of motion would be 108 degrees on flexion and 2 degrees on extension after repeated use over time, and 106 degrees on flexion and 4 degrees on extension during flare-ups. The Veteran reported flare-ups occurring five to six times a week described as increased pain occurring when walking or standing and alleviated with rest and ice. The examiner stated that the Veteran would have difficulty getting in and out of a car.

Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261.

Regarding instability and subluxation of the left knee, during the pendency of the appeal, the Veteran was awarded a separate 20 percent disability rating under DC 5003-5257 for instability. See September 2019 Rating decision. The Veteran did not appeal this evaluation. In January 2020, a Lachman's stability test resulted in +1. Subsequently, in November 2021, an examiner did not find instability upon examination. The Board finds that a 20 percent rating is appropriate under both the old and new ratings criteria as severe instability is not demonstrated and the record does not indicate that the Veteran has been prescribed a brace and an assistive device.

A disability rating in excess of 10 percent is not warranted for the left knee. Range of motion testing was at worst 4 degrees extension and 106 degrees flexion. At his most recent November 2021 examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The examiner provided his estimate based on the Veteran's assertions. While given the opportunity to describe functional limitation related to the disability, the Veteran's statements did not show the requisite limitation of motion necessary for a higher or separate rating. To the extent the Veteran has reported, and objective evidence has demonstrated, pain associated with motion of the left knee, the 10 percent rating already assigned contemplates painful motion. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Therefore, a rating higher than the 10 percent already assigned is not warranted by the record.

In sum, the Veteran did not present with sufficient limitation of flexion or extension to warrant a compensable rating based on range of motion. However, as there was evidence of painful motion resulting in some limitation of motion, the Board finds that a 10 percent rating is warranted. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Because his reported pain is already contemplated under DC 5260, entitlement to a separate rating for painful motion under DC 5261 is not warranted.

Accordingly, entitlement to a disability rating in excess of 10 percent for a left knee degenerative arthritis is denied. In denying the claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

TDIU

The Veteran asserts that he is unable to obtain and maintain gainful employment as a result of his service-connected disabilities.

Legal Criteria

VA will grant a total rating for compensation purposes based on un
. App. 32 (2011). Because his reported pain is already contemplated under DC 5260, entitlement to a separate rating for painful motion under DC 5261 is not warranted.

TDIU

The Veteran asserts that he is unable to obtain and maintain gainful employment as a result of his service-connected disabilities.

Legal Criteria

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his or her education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003).

If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating.

Discussion

The Veteran is service connected for the following disabilities: depression, rated as 50 percent disabling from June 6, 2012; left knee instability, rated as 20 percent disabling from August 16, 2012; right knee patellar repair, rated as 10 percent disabling from June 9, 1992; left knee arthritis, rated as 10 percent disabling from August 16, 2012; tinnitus, rated as 10 percent disabling from May 21, 2014; and right inguinal hernia, rated noncompens
not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating.

Discussion

Beginning August 16, 2012, the Veteran was in receipt of a combined 70 percent disability rating with one disability rating of greater than 40 percent. Accordingly, the Veteran meets the schedular criteria for consideration for the assignment of a TDIU beginning August 16, 2012. 38 C.F.R. § 4.16(a).

Regarding his educational background, the evidence reflects that the Veteran completed four years of high school and two years of college. See August 2012 VA Form 21-8940, Application for increased compensation based on unemployability.

Regarding his employment history, in March 2012, the Veteran reported that he was unemployed because he got angry at his job and walked out.

In July 2013, the Veteran reported he was a forklift supervisor for the past two weeks for a company he previously worked for about a year prior but was laid off. See July 2013 Mental health examination. Then in January 2014, the Veteran reported he had a job making medical supplies; two months later, the Veteran reported that he had a nice job and was comfortable but was fired for being 22 minutes late.

In November 2016, the Veteran reported that he last worked in 2013 as a forklift operator. However, in March 2015, the Veteran reported that he last worked in 2014 as an industrial jar washer.

With respect to his tinnitus, in October 2014, a VA examiner found the Veteran's tinnitus would not impact the ordinary conditions of daily life to include his ability to work. See October 2014 VA Audiological examination. Then in June 2017, the Veteran stated his tinnitus was annoying when asked to describe how it impacted his life, to include his ability to work.

With respect to his knee disabilities, in May 2013, a VA examiner found no significant disability that would render the Veteran unable to obtain and sustain substantially gainful employment in either a physical or sedentary occupation. In May 2017, a VA examiner found the veteran's knee disability would impact his ability to walk, bend or stand. In August 2019, a VA examiner reported that the Veteran could sit for 30 minutes before having to stand for 10 minutes and was unable to bend, squat or climb stairs. In January 2020, the Veteran's functional impact was described as the inability to climb stairs without assistance or walk for more than 3 minutes without intervals of rest. And finally, in November 2021, a VA examiner reported the Veteran would have difficulty walking, standing or sitting for an extended amount of time, getting in and out of cars, standing from a seated position, and utilizing staircases; however, the Veteran would be able to perform sedentary work because his upper extremities are not impaired.

With respect to his sleep apnea, in November 2021, a VA examiner stated the Veteran's ability to focus would be impacted due to fatigue.

Regarding his depression, in March 2015, a private examiner stated the Veteran's concentration was variable and concluded he could not sustain the stress from a competitive work environment or be expected to engage in gainful activity. In November 2016, a VA examiner determined the Veteran had occupational and social impairment with reduced reliability and productivity.

The Veteran submitted a June 2018 vocational assessment from Dr. S.G.B., a private counselor. Dr. S.G.B., concluded that the Veteran was unable to perform work at a substantial gainful level due to the severity of his service-connected depression, right and left knee, tinnitus and hernia disabilities.

The Veteran also submitted a November 2019 private opinion from Dr. M.B., a private physician. Based on a consult with the Veteran and review of his records, Dr. M.B. stated that the Veteran was unable to maintain substantial gainful employment as a result of the combination of his service-connected disabilities.

In light of the foregoing, the Board finds that there is sufficient evidence to establish that the Veteran is unable to secure or follow
June 2018 vocational assessment from Dr. S.G.B., a private counselor. Dr. S.G.B., concluded that the Veteran was unable to perform work at a substantial gainful level due to the severity of his service-connected depression, right and left knee, tinnitus and hernia disabilities.

In light of the foregoing, the Board finds that there is sufficient evidence to establish that the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. Based on the Veteran's education and employment history of operating a forklift, as described above, the Veteran has diminished concentration and knee pain that would impact his reflexes and ability to operate a forklift. Accordingly, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran has been precluded from securing and following gainful employment due to the combination of his service-connected disabilities.

T.D. JONES

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E.V. Palatt, 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
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
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
. 14.636(d).

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,

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