Citation Nr: 0329620 Decision Date: 10/29/03 Archive Date: 11/05/03 DOCKET NO. 96-04 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The veteran served on active duty from January 1957 to July 1959. The current appeal arose from a March 1987 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The RO determined that new and material evidence had not been submitted to reopen a claim of service connection for a psychiatric disorder. In April 1987, the veteran submitted a statement to the RO that was addressed to the Board of Veterans Appeals (Board) in which he said that "the decision in my case is not in accord with the law." The Board accepts that statement as a timely filed notice of disagreement. See 38 C.F.R. § 19.118 (1986). The RO did not issue a statement of the case with regard to the March 1987 determination. Therefore, the veteran's February 1987 claim to reopen remains pending, and the March 1987 determination - rather than the September 1994 determination in which the RO again held that new and material evidence had not been received to reopen a claim of service connection for a psychiatric disorder and for which the veteran filed another notice of disagreement - is the one on appeal. In October 1999, the Board remanded the case to the RO for further development and adjudicative action. In May 2003, the RO reopened the claim of service connection for a psychiatric disorder and then denied the claim on the merits. The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must first find that new and material evidence has been presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). Therefore, although the RO reopened and reviewed the claim on a de novo basis, the issue is as stated on the title page. The Board has duly considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). As there remains additional development of the claim of service connection for a psychiatric disorder and because the claim is being remanded, discussion of the Board's duty to assist in light of the VCAA is premature at this time. Additionally, the Board need not discuss the limited application of the VCAA in the new and material evidence claim, given the favorable disposition of that issue as decided herein. In a March 1984 determination, the RO denied the veteran's claim for nonservice-connected disability pension benefits. However, the RO did not provide the veteran with his appellate rights. See 38 C.F.R. § 19.114 (1983). Subsequent to the March 1984 determination, the veteran has repeatedly filed claims for nonservice-connected disability pension benefits, which have not been adjudicated. This matter is referred to the RO for clarification, initial consideration and appropriate adjudicative action if/as warranted. Godfrey v. Brown, 7 Vet. App. 398 (1995). FINDINGS OF FACT 1. The RO denied reopening the claim of entitlement to service connection for a psychiatric disorder when it issued an unappealed determination in March 1987. 2. The evidence added to the record since the March 1987 determination bears directly and substantially upon the specific matter under consideration; is not cumulative or redundant; and, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW Evidence received since the March 1987 determination wherein the RO denied reopening the claim of entitlement to service connection for a psychiatric disorder is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5104, 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 3.160, 20.302, 20.1103 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The evidence that was of record prior to the March 1987 determination, wherein the RO denied reopening the claim of entitlement to service connection for a psychiatric disorder, is reported in pertinent part below. Service medical records show that on the January 1957 entrance examination the veteran denied having had any psychiatric symptomatology and the psychiatric evaluation was normal. In June 1959 he was evaluated on admission to a hospital following a fracture of one of his right metacarpals. He was considered mentally sound. On May 1959 separation examination he denied having had any psychiatric symptomatology and the psychiatric evaluation was normal. The evidence received subsequent to the March 1987 determination is reported in pertinent part below. A report of a psychiatric examination performed at a state hospital in December 1960 reflects that the veteran's mother reported that he had mental confusion in October 1960. The tentative diagnosis was schizophrenic reaction, paranoid type. Criteria Finality and Materiality An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, becomes final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 C.F.R. § 3.160(d). A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of VA as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 2002). See 38 C.F.R. § 3.104(a). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 3.105. See id. When a claim to reopen is presented under section 5108, the Secretary must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Hodge, the United States Court of Appeals for the Federal Circuit (CAFC) noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Id. at 1363. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Hickson v. West, 12 Vet. App. 247 (1999); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). An RO determination as to whether evidence is "new and material" for purposes of reopening is subject to de novo adjudication by the Board. Barnett, 83 F.3d at 1383. New and material evidence is defined as evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a). It has been held that, in accordance with 38 C.F.R. § 3.156, evidence is new and material if it (1) was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (2) is probative of the issue at hand; and (3) is significant enough, either by itself or in connection with other evidence in the record, that it must be considered to decide the merits of the claim. See Anglin v. West, 203 F.3d 1343, 1345-46 (Fed. Cir. 2000) (upholding the first two prongs of the Colvin new and materiality test, while defining how materiality is established (the third prong as listed above)); see also Shockley v. West, 11 Vet. App. 208 (1998); Evans v. Brown, 9 Vet. App. 273, 283 (1996); Colvin v. Derwinski, 1 Vet. App. 171 (1991). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v. West, 12 Vet. App. 369 (1999), the United States Court of Appeals for Veterans Claims (CAVC) held that the prior holdings in Justus and Evans that the evidence is presumed to be credible was not altered by the CAFC decision in Hodge. The Board notes that 38 C.F.R. § 3.156 was recently amended, and that the standard for finding new and material evidence has changed as a result. See 38 C.F.R. § 3.156(a) (2003). However, this change in the law is not applicable in this case because the veteran's claim was filed prior to August 29, 2001, the effective date of the amendment. See 66 Fed. Reg. 45,620, 45,629 (August 29, 2001). Service Connection The United States will pay compensation to any veteran disabled by disease or injury incurred in or aggravated by active military service, who was discharged or released under conditions other than dishonorable from the period of service in which the disease or injury was incurred, provided the disability is not the result of the person's own willful misconduct. 38 U.S.C.A. § 1110 (West 2002). The CAVC has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson, 12 Vet. App. at 253. Regulations also provide that service connection may 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) (2003). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2002). This rule does not mean that any manifestation in service will permit service connection. Id. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuous service for 90 days or more during a period of war, or peacetime service after December 31, 1946, and post- service development of a presumptive disease, such as a psychosis, to a degree of 10 percent without one year from date of termination of such service, establishes a presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2003). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 38 U.S.C.A. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id. Analysis The report of a psychiatric examination performed in December 1960 is new and material evidence. These records show a tentative diagnosis of schizophrenic reaction, paranoid type. When the RO previously considered the veteran's claim in March 1987, it found that there was no chronic acquired psychiatric disorder shown by the evidentiary record. The above hospital summary shows that the veteran was in fact diagnosed with a chronic acquired psychiatric disorder approximately one year and a half following service. This additional evidence bears directly and substantially upon the specific matter under consideration; is not cumulative or redundant; and, by itself or in connection with evidence previously assembled, is so significant that it must be considered to fairly decide the merits of the claim. See 38 C.F.R. § 3.156. Therefore, the claim of entitlement to service connection for a psychiatric disorder is reopened. ORDER The veteran, having submitted new and material evidence to reopen the claim of entitlement to service connection for a psychiatric disorder, the appeal is granted to this extent. REMAND This claim must be afforded expeditious treatment by the Veterans Benefits Administration Appeals Management Center (VBA AMC). The law requires that all claims that are remanded by the Board or by the CAVC for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs (or VBA AMC) to provide expeditious handling of all cases that have been remanded by the Board and the CAVC. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The VBA AMC will be asked to accomplish additional necessary development - obtaining records and affording the veteran a VA examination. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02- 7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the CAFC invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The CAFC made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The CAFC found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. The Board observes that additional due process requirements may be applied as a result of the enactment of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003). Accordingly, this case is REMANDED for the following action: 1. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The VBA AMC should obtain any temporary claims file for the veteran from the RO. 3. The VBA AMC must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), and any other applicable legal precedent. Such notice should specifically apprise him of the evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information, and of the appropriate time limitation within which to submit any evidence or information. 38 U.S.C.A. § 5103(a) and (b) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). A record of his notification must be incorporated into the claims file. 4. The VBA AMC should ask the appellant to identify all sources of treatment or evaluation, VA and non-VA, for psychiatric symptomatology from July 1959 to the present. After obtaining any necessary authorization, the VBA AMC should obtain any medical records not currently on file. Regardless of the appellant's response, the VBA AMC should endeavor to obtain all outstanding, relevant VA treatment reports. In any event, the VBA AMC should obtain all records from the VA Medical Center in Long Beach, California, for the period from 1993 to 1997. Also, the VBA AMC should obtain all records from the following: (a) Yuba County Hospital for a hospitalization ending on December 2, 1960; (b) Merced County Hospital for a hospitalization ending in or around November 21, 1962, and for hospitalization(s) from May 1983 to March 1984; (c) The Psychiatric Hospital, in San Juan, Puerto Rico, for treatment from June 1966 to December 1967; (d) Dr. Grayson in South Gate, California, for treatment in 1985; (e) Martin Luther King Hospital for treatment from 1987 to 1990; (f) St. Francis Hospital for treatment from 1987 to 1990; (g) Mission Hospital for treatment from 1987 to 1990; (h) Dr. Ryan for treatment 1987 to 1990; (i) Dr. Hicks for treatment from 1987 to 1990; 5. The VBA AMC should inform the veteran that the Doctors Medical Center has the records of the Modesto City Hospital and that they did not have any of his records regarding treatment at that hospital from October 1962 to December 1963 because all records before 1980 from that hospital have been destroyed. 6. The VBA AMC should inform the veteran that a June 1980 letter to a Dr. "Hatter," requesting records for the period from March 1980 to the present, was returned to VA as undeliverable. The VBA AMC should inform the veteran that in March 1984 he apparently identified that doctor as Dr. "Hassar" or "Haffar" and indicated that the doctor treated him during the period from 1979 to 1984. The VBA AMC should attempt to obtain records from that doctor if the veteran is able to provide an address for that doctor's records. 7. The VBA AMC should contact the National Personnel Records Center (NPRC) and obtain any clinical (inpatient) records for the following periods of hospitalization: (a) U.S. Army Hospital, Ft. Monmouth, New Jersey, May 21, 1957, to June 7, 1957; and (b) 615th USAF Dispensary, Ent AFB, Colorado, March 18, 1958, to March 19, 1958. The VBA AMC should also obtain from NPRC or other appropriate source any additional records pertaining to the veteran's special court-martial on July 18, 1957. 8. The VBA AMC should contact the Social Security Administration and obtain all medical records and decision(s) pertaining to all claims for Social Security disability benefits filed by the veteran. 9. The VBA AMC should arrange for a VA special psychiatric examination by a psychiatrist to determine whether the veteran has a psychiatric disorder and if present whether such is related to service. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner must annotate the examination report(s) that the claims file was in fact made available for review in conjunction with the examination. Any further indicated special studies should be conducted. The examiner should review the historical evidence in the claims folder. The examiner should also elicit a detailed history of the onset of psychiatric symptoms from the veteran. For each psychiatric disorder found, the examiner should express opinion as to the following: is it at least as likely as not that such a disorder(s) is/are related to the veteran's period of active duty, or if preexisting his period of active duty, was/were aggravated thereby? Any opinions expressed by the examiner must be accompanied by a complete rationale. 10. Thereafter, the VBA AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the VBA AMC should review the requested examination report(s) and required medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the VBA AMC should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the VBA AMC must review the claims file to ensure that any other notification and development action required by the VCAA is completed. In particular, the VBA AMC must review the claims file and ensure that all VCAA notice and development obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), and any other applicable legal precedent. 11. After undertaking any development deemed essential in addition to that specified above, the VBA AMC should readjudicate the issue of entitlement to service connection for a chronic acquired psychiatric disorder under a broad interpretation of the applicable regulations and CAVC decisions, with consideration of 38 C.F.R. §§ 3.303, 3.307, and 3.309 (2003), as applicable. If the benefit sought on appeal is not granted to the veteran's satisfaction, the VBA AMC should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant need take no action unless otherwise notified by the VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim for service connection for a chronic acquired psychiatric disorder. 38 C.F.R. § 3.655 (2003). ______________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or 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. We will return your file to your local VA office to implement the BVA'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. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. 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 United States Court of Appeals for Veterans Claims. 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 then have another 120 days from the date the BVA 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 Court is filed on time. 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 web site on the Internet at www.vetapp.uscourts.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 BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED 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 BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. 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 above for the Director, Management and Administration, 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 above for the Director, Management and Administration, 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 BVA, 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: 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 VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. 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. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2