Citation Nr: 0325433 Decision Date: 09/29/03 Archive Date: 10/03/03 DOCKET NO. 02-08 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date of service connection for post-traumatic stress disorder (PTSD) earlier than August 9, 1999. REPRESENTATION Appellant represented by: John E. Howell, Attorney ATTORNEY FOR THE BOARD W.L. Pine, Counsel INTRODUCTION The veteran had active service from January 1943 to November 1945. This appeal is from a March 2000 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). In October 1999, VA granted service connection for PTSD effective August 9, 1999. In December 1999, the veteran asserted entitlement to an earlier effective date of service connection, expressly stating that he was not disagreeing with the rating. The RO denied the earlier effective date in March 2000. A statement of the veteran in April 2000, liberally construed, was a notice of disagreement with the March 2000 denial of an earlier effective date. The RO issued a statement of the case (SOC) in June 2002, and the veteran timely perfected the appeal. FINDINGS OF FACT 1. VA disallowed a claim for service connection for a nervous condition in August 1965, and the veteran was notified of this decision by letter dated September 3, 1965. 2. The veteran did not initiate an appeal from the August 1965 denial of service connection for a nervous condition during the year following September 3, 1965. 3. On August 9, 1999, the RO received the veteran's first claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The August 1965 rating decision denying service connection for a nervous condition became final when the veteran did not initiate an appeal during the year following the date of the letter notifying him of the denial. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 3.302(a) (2002) 2. Applicable law does not authorize an effective date of service connection for PTSD earlier than August 9, 1999. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. § 3.400, 3.400(b)(2), (q) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) made significant changes in VA's duty to notify and assist claimants for benefits administered by the Secretary. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)) (2002). The VCAA prescribed that the amendments to 38 U.S.C. § 5107 are effective retroactively to claims filed and pending before the date of enactment. 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West 2002). The United States Court of Appeals for the Federal Circuit has ruled that the retroactive effective date provision of the Act applies only to the amendments to 38 U.S.C. § 5107. See Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002); Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). However, the VA regulations promulgated to implement the Act provide for the retroactive effect of the regulations, except as specified. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). Whereas VA regulations are binding on the Board, 38 C.F.R. § 20.101(a) (2001), the Board in this decision will apply the regulations implementing the VCAA as they pertain to the claims at issue. But see Paralyzed Veterans of America v. Sec'y, No. 02-7007 (Fed. Cir. Sep. 22, 2003) (38 C.F.R. § 3.159(b)(1) is invalid because it imposes on claimants an arbitrary new deadline that does not represent a reasonable exercise of VA's authority). VA must provide forms necessary to prosecute a claim for VA benefits. 38 U.S.C.A. § 5102 (West 2002); 38 C.F.R. § 3.150(a) (2003). No specific forms are necessary to prosecute a claim for an earlier effective date. VA must notify the veteran of evidence and information necessary to substantiate his/her claim and inform him/her which information and evidence, if any, he/she must provide VA and which information and evidence, if any, VA will attempt to obtain on his/her behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter of April 2002, VA notified the veteran to submit any evidence to support his request for an earlier effective date for PTSD and informed him of what he must do and of what VA would do to obtain evidence, depending on the nature of the evidence. The letter specifically asks for any additional evidence to support the veteran's request for an earlier effective date for his post-traumatic stress disorder. It also informs the veteran that it will help him get evidence to support his claim. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2002). Such assistance includes making every reasonable effort to obtain relevant records (including private and service medical records and those possessed by VA and other Federal agencies) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1-3) (2002). Given the nature of a claim for an earlier effective date for service connection, materials not of record at the time of the claim for an earlier effective date cannot be necessary to substantiate the claim. See Livesay v. Principi, 14 Vet. App. 324, 325-26 (2001) (Ivers, Judge, concurring) quoting Secretary's Supplemental Brief at 13-15 in Holliday v. Principi, 14 Vet. App. 280 (2001). Likewise, the result of contemporaneous examination or medical opinion is inapposite to the nature of the claim. VA must notify the veteran of a failure to obtain evidence from any source. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e) (2002). There has been no such failure in this case. II. Earlier Effective Date The veteran, through counsel, essentially presents several arguments asserting entitlement to an earlier effective date for service connection for PTSD. First, it has been alleged that the veteran had PTSD in service and the effective date should therefore be from the time of onset of PTSD. Second, it is claimed that VA breached a duty to assist the veteran to obtain evidence pertinent to his claim for service connection for a nervous disorder of May 20, 1965, and this breach was a grave procedural error, which vitiates the finality of the August 1965 rating decision, rendering May 20, 1965, the date of the claim for service connection for PTSD ultimately granted in October 1999. Finally, the veteran argues that the 1965 claim is still pending because the veteran never received notice of the denial of service connection for a nervous disorder and never received notice of his appellate rights. These arguments are without merit. The law and regulations governing effective dates of awards of disability compensation are as follows: Unless specifically provided otherwise in [chapter 51, title 38, United States Code], the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 2002). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2003). Disability compensation-(i) Direct service connection (3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2003). Money may be paid from the Federal Treasury only in the manner expressly authorized by statute. See Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 424 (1990). The veteran has claimed that PTSD had its onset in service and that the effective date should therefore be from the time of onset. That or whether the veteran had PTSD or any other psychiatric illness in service is immaterial to the question of the correct effective date of service connection for PTSD, his argument of the facts notwithstanding. However, the statute is clear in that an effective date will not be fixed earlier that the date of receipt of application therefor. The argument that the veteran had PTSD in service is inapposite to the claim for an earlier effective date based on the date of the claim. The evidence demonstrated that the veteran did not file a claim for service connection for PTSD or any other psychiatric disorder within one year following separation from service. Thus, even if it were undebatable that he had PTSD in service, the date of separation from service could not be the effective date of his entitlement to compensation under 38 C.F.R. § 3.400(b)(2). The date of onset or diagnosis matters in assigning effective dates if the claim was filed within a year following separation from service, such that onset in service would permit an effective date earlier than the date of the claim, or if the onset was after the date of the claim, such that a date later than the date of the claim controlled as the "date entitlement arose." 38 C.F.R. § 3.400(b)(2)(i). The veteran's assertion that the "date entitlement arose" language controls and compels an effective date from onset in service states the rule out of context, ignoring that the effective date, except for claims filed during the year after separation, is the date of the claim or the date entitlement arose, "whichever is later." Id. The language referring to the "date entitlement arose" must be read in context of the whole rule to prevent rendering superfluous the rule awarding service connection effective the date following separation if a claim is filed within a year of. Id. Put another way, any finding of service connection means, as a matter of law, the disability results from disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2003). The fact that additional law and regulation controls the effective date of entitlement to benefits demonstrates that onset in service alone does not control the effective date of entitlement to service connection. In the alternative, the veteran concedes that the date of the claim giving rise to the grant of service connection for PTSD does control the effective date. In accord with that argument, the veteran asserts that a claim of May 20, 1965, was the same claim for service connection ultimately granted as entitlement to service connection for PTSD, and that it remained pending or open until VA ultimately granted it in October 1999. He acknowledges an adjudication in August 1965 of a claim for service connection for a nervous disorder, but argues that the adjudication never became final because VA failed to assist the veteran to obtain evidence in support of his claim, failed to afford him a contemporaneous medical examination, and failed to review his claim sympathetically. He argues that these breaches of duty were "grave procedural errors," which vitiate the finality of the August 1965 decision. The veteran relies on the authority of a case overruled several months after his last brief in the instant appeal. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) overruled by Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). There is no dispute that in 1965 VA had the duties to assist and afford the veteran an examination and to review his claim sympathetically as he asserts. These breaches, however, are not grounds to vitiate the finality of the August 1965 rating decision denying service connection for a nervous condition. The veteran argues at length why these breaches of duty were grave procedural errors under the Hayre case. In overruling Hayre, the Federal Circuit found that "grave procedural error," such as a breach of duty to assist the veteran when adjudicating the veteran's benefits claim does not vitiate the finality of an unappealed VA benefits decision, because "grave procedural error" is not among the legal grounds to overcome the finality of a prior decision. 318 F.3d at 1338- 39 citing 38 U.S.C.A. §§ 5108, 5109A, 7111. The August 1965 rating decision denying service connection for a nervous condition became final when the veteran did not initiate an appeal during the year following the date of the letter notifying him of the denial. 38 U.S.C.A. § 7105(c) (West 2003); 38 C.F.R. §§ 3.160(d), 3.302 (2003); see also Suttman v. Brown, 5 Vet. App. 127, 135 (1993) (section 7105(c) finality also subject to section 5108 exception). The veteran assumes without expressly stating, that the claim denied in August 1965 and the claim granted in October 1999 are the same claim. If the October 1999 adjudication of the August 1999 claim was pursuant to the reopening of a previously and finally denied claim, see 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001) (the definition of new and material evidence effective in October 1999), then the effective date is the date of receipt of the claim to reopen the previously disallowed claim. 38 C.F.R. § 3.400(q) (2003). If the August 1999 claim for service connection for PTSD was an original claim, the effective date of service connection is the date of the original claim. 38 C.F.R. § 3.400(b)(2) (2003). Whether the October 1999 rating decision granted an original or a reopened claim for service connection for PTSD is not dispositive of the effective date in this case. Either way, the effective date will be the same, and the Board need not determine in this case whether the October 1999 rating decision adjudicated a reopened or an original claim for PTSD. Finally, the veteran has claimed that he did not receive notice that his 1965 claim for nervous condition was denied, so that his claim is still pending. Veteran's Notice of Disagreement at 9 ((July 27, 2001). He also argues that he was not correctly advised of his appellate rights. He states that the September 3, 1965, letter included the works "Encl: VA Form 21-4104." His counsel admits that he has been advised that VA Form 21-4107 is the number of the form containing the advice to a claimant on his appellate rights. These points are offered as an alternate basis for the veteran's argument that his 1965 claim is still open and pending. The evidence in the claims folder shows that VA denied service connection for a nervous disorder by rating action of August 23, 1965. The RO mailed a letter, dated September 3, 1965, to the veteran advising him of the rating action and providing him with a VA Form 21-4107 (appellate rights and instructions). The mailing address on the letter is identical to the address provided by the veteran on his application for compensation, received in May 1965. The return address of a January 8, 1965, letter from the veteran contained a typographical error in the street name, " [redacted] [redacted]." instead of [redacted]. Everything else was the same as the address the veteran had previously reported. This letter is not evidence that the veteran had moved or that VA administered mailing of the September 3, 1965, in an irregular manner by addressing it to the address the veteran reported on his application for compensation. The Board concludes that the presumption of regularity that attends the administrative functions of the Government is applicable and that it is presumed that the September 3, 1965, notification letter and VA Form 21-4107 were properly mailed by the RO and properly delivered by the Postal Service. The Court has defined a presumption of regularity to the effect that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to RO procedures). In the absence of clear evidence to the contrary, it is presumed that VA properly notified the veteran of the August 23, 1965, rating decision with the September 3, 1965, letter and that he received the letter. There is no evidence that the mail was not physically received, and that it did not include the notice of appellate rights. The file does not contain any returned mail relating to the September 3, 1965, notice letter. In Mindenhall, 7 Vet. App. 271 at 274, the Court stated that the veteran's statement that he did not receive notice of a rating decision, standing alone, was not the type of clear evidence to the contrary sufficient to rebut the presumption that notice mailed by VA was regularly received. The veteran argues that the presumption of regularity is rebutted by his letter of January 8, 1966, wherein the veteran had written to the RO inquiring about his percentage rating. It is argued that there is no logical reason why he would have written inquiring about his percentage rating if he had received the letter of September 3, 1965, or the original rating decision. The veteran's January 8, 1966, letter is not clear evidence that the veteran did not receive the September 3, 1965, RO letter or of any other administrative irregularity on the part of VA. On its face, the letter requests information. Therefore any other meaning imputed to it is inferred. VA's September 3, 1965, letter did not report the percentage rating of the veteran's sole service-connected disability. The disability rating of the service-connected disability was not at issue in the August 1965 rating decision. As a historical matter, in 1965 VA did not enclose copies of rating decisions with letters notifying claimants of the rating decisions. Therefore the veteran's ignorance of the percentage rating of his sole service-connected disability, of which VA had last notified him in a letter of September 1945, is not evidence, clear or otherwise, that he did not receive the September 3, 1965, VA letter and its enclosed notice of appellate rights. Whereas the presumption that the veteran received notice of the August 1965 denial of service connection for a nervous condition is not rebutted, the finality of that denial is not tolled for failure to notify him of that decision. The veteran filed a claim for service connection for alcoholism in February 1989. VA informed him by letter of March 23, 1989, that the claim had been denied and he had been notified of the denial by letter of September 3, 1965. The March 1989 letter also informed him that the September 1965 letter also notified him of the denial of service connection for a nervous disorder. The March 1989 letter notified him that he must submit new and material evidence to reopen his claim. The RO enclosed notice of his right to appeal the requirement to submit new and material evidence. There can be no claim for service connection for PTSD pending since February 1989, because he did not claim entitlement to service connection for PTSD in February 1989, and because if the March 1989 letter was an adjudication, he did not appeal it and it became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d); 38 C.F.R. § 20.302(b) (2003). In this case, no exception to the general rule of effective dates in compensation claims applies. The date of the claim for service connection for PTSD controls the effective date of the award of service connection. 38 C.F.R. § 3.400. The statement received August 9, 1999, was the informal claim for service connection for PTSD, 38 C.F.R. § 3.155 (2003). The correct effective date of service connection for PTSD is August 9, 1999. As a final note, it is significant that the veteran does not claim there was clear and unmistakable error in any past adjudication such that evidence of record at the time of the past adjudication is material to the effective date of the claim. See 38 C.F.R. § 3.105(a) (2003); Russell v. Principi, 3 Vet. App. 310, 314 (1992) (finding of CUE in past determination must be based on law then in effect and evidence then of record). Not only does he not make an explicit claim of clear and unmistakable error, he distinguishes his theory of entitlement from an earlier effective date from entitlement based on CUE. Veteran's Brief, at 12, note 4 (Oct 15, 2002). ORDER An effective date of entitlement to service connection for PTSD earlier than August 9, 1999, is denied. REMAND In March 2003 the veteran filed at the St. Petersburg, Florida, RO a notice of disagreement with a November 2002 denial of a claim for service connection for a stomach condition. The RO has not issued the statement of the case to which he is entitled. 38 U.S.C.A. § 7105 (West 2002); Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Review the claim for service connection for a stomach condition, 38 C.F.R. § 19.26 (2003), insure complete compliance with the VCAA, 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002) , 38 C.F.R. § 3.159 (2003), and issue an SOC, 38 C.F.R. §§ 19.29, 19.30 (2002); Manlincon v. West, 12 Vet. App. 238 (1999). NOTE: the decision on this claim may not be announced in an SSOC. 38 C.F.R. § 19.31(a) (2002). Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if the veteran perfects the appeal and if otherwise appropriate. The appellant need take no further action until he is further informed. The purpose of this REMAND is to obtain additional information and to afford due process. No inference should be drawn regarding the final disposition of the claim because of this action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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 to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. ______________________________________________ MARJORIE A. AUER 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