Citation Nr: 0415101 Decision Date: 06/14/04 Archive Date: 06/23/04 DOCKET NO. 02-17 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased evaluation for left maxillary and ethmoid sinusitis, residuals of a nasal bone fracture, post operative, currently evaluated as 50 percent disabling. 2. Entitlement to an increased evaluation for chronic external hemorrhoids, currently evaluated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from September 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico (RO) which denied the benefits sought on appeal. By a rating decision dated April 2003, the veteran was granted service connection for headaches as secondary to the service connected disability of left maxillary and ethmoid sinusitis, residuals of a nasal bone fracture, post operative, and assigned a 10 percent evaluation effective December 11, 2002. FINDINGS OF FACT 1. The veteran has the maximum schedular rating available for sinusitis under VA regulations. 2. The record does not reflect that the veteran's sinusitis presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 3. The veteran's chronic external hemorrhoids are not manifested by persistent bleeding and with secondary anemia, or with fissures. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for the veteran's left maxillary and ethmoid sinusitis, residuals of a nasal bone fracture, post operative are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.97, Diagnostic Code 6510 (2003). 2. The criteria for a rating in excess of 10 percent for the veteran's chronic external hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.114 including Diagnostic Code 7336 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Introduction The Veterans Claims Assistance Act of 2000 (VCAA), implemented in 38 U.S.C.A. §§ 5103, 5103A (West 2002), now requires VA to assist a claimant in developing all facts pertinent to a claim for VA benefits, including a medical opinion and notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the VA Secretary, that is necessary to substantiate the claim. VA has issued regulations to implement the Veterans Claims Assistance Act of 2000. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003)). The veteran filed a claim for the above-cited disabilities in January 2001. In April 2001, the RO sent the veteran a letter providing the notices required under the VCAA. In the April 2001 letter, the RO explained the information and evidence needed to substantiate his claims for increased evaluations for his service connected sinusitis and external hemorrhoids with specific references to what the evidence must show to establish an increase in disability. The veteran was also advised that he needed to provide the name of the person, agency, or company who had records that the veteran believed would help in deciding the claims; the address of this person, agency, or company; the approximate time frame covered by the records; and the condition for which he was treated, in the case of medical records. The veteran was also informed that if there were any private records that would support his claims, he had to complete the authorization form, which was provided, and the VA would request those records. The letter explained what portion of the evidence and information would be obtained by VA, noting, for example, that VA would attempt to obtain such things as medical records, employment records, and records of other Federal agencies. Finally, the veteran was asked to tell VA about any information or evidence he wanted VA to try to get for him. The letter indicated that the VA would also assist the veteran by providing a medical examination or getting a medical opinion if necessary to make a decision. Thus, the letter of April 2001, as well as several other documents sent to the veteran during the course of the development of the claim, provided notices as required under the provisions of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). A. Left maxillary and ethmoid sinusitis, residuals of a bone fracture, post operative Background Outpatient treatment records from B.P.G., dated January 1996 to April 2001 show that in November 1998, the veteran complained of a sore throat, plugged ears due to a combination of sinus and a cold. In May 1999, the veteran indicated that due to his allergies he believed he could not hear at times. In April 2000, the veteran reported a drainage, facial pressure, cough with phlegm. A statement from V.T.P., M.D., dated February 2001, indicated that the veteran had been treated for sore throat due to sinus infection and by spring and fall allergies for the past few years. He had received Depo Medrol injection, steroid nasal spray and antibiotics as needed for sinusitis. It was noted that the veteran was last treated in February 2001 with Depo Medrol injection, Nasareal nasal spray and Doxyccycline for 7 days. At his February 2001 VA examination, the veteran testified that despite treatment he has flare-ups of sinusitis about every 6 to 8 weeks lasting about 2 to 4 days. He indicated that when he had flare-ups of sinusitis, he would develop nasal congestion, postnasal drip, rhinorrhea, itchy watery eyes, and maxillary and frontal sinus pressure. It was also difficult for him to breath through his nose because of nasal congestion bilaterally. He develops a discharge from the nose at the time of the fare-ups of sinusitis. He stated that the sinusitis was not better or worse however it continued to occur. He further stated that this sinusitis did interfere with his daily activities in that he was unable to perform his household chores especially during flare-ups. The examination showed the head, face, eyes, and ears essentially within normal limits. Nose, sinuses, mouth, and throat revealed that there was a moderate nasal congestion bilaterally with a 1 percent obstruction in each nostril due to the nasal congestion bilaterally. There was also tenderness to palpation of the maxillary sinus. Examination of the mouth and throat was essentially unremarkable at the present time. The diagnosis was allergic rhinitis with recurrent acute exacerbations secondary to allergies, sinusitis. A statement by V.T.P., M.D., dated November 2001 indicated that the veteran had been a patient for several years for his problem with chronic rhinosinusitis. He had empyema of the left maxillary sinus for which he underwent Caldwell luc procedure in 1980. He recovered well from surgery. He had chronic allergic rhinitis for which he had been treated with oral antibiotics and occasional Depo Medrol injection and periodic antihistamines for his sinusitis. A statement from B.P.G., M.D., P.A., dated December 2002, indicated that the veteran had been under this physician's care since May 1985. Since that time the veteran suffered chronic and recurrent sinusitis and headaches, requiring antibiotics and other treatments. He had nasal surgery on two occasions and the physician indicated that this had aggravated his other medical conditions which included: GERD; sleep problems; recurrent pharyngitis; recurrent serous otitis media; neck spasms; irritable bowel syndrome, constipation and diverticulosis and hemorrhoids. At his December 2002 RO hearing, the veteran testified that he had two operations on his sinuses and now has to use two pillows in order to sleep, because of choking. He indicated he could not breathe and that way, he was about half sitting up. He described his sinus headaches as unbearable. He stated that if he got a real bad sinus infection, his doctor would give him some antibiotics. He indicated that he slept a lot better when he was in his recliner. The veteran testified that he had told his doctors at the VA about his sinuses, but indicated that they did nothing. He went to his own private doctor when he had a big infection. A statement from the veteran's wife dated January 2003 indicated that the veteran had sleepless nights because of the bad sinus infections and headaches. She indicated that sometimes he had to sleep sitting up because of the problems breathing. At his January 2003 VA examination, the veteran reported headaches associated with episodes of acute sinusitis. The veteran indicated that he had episodes of flare-ups of sinus condition at least every four weeks and that was when he had these headaches. CT scan of the sinus showed sinusitis involving the maxillary sinuses. Deformity was present of the walls of the left maxillary antrum, which suggested the presence of sequela of trauma. In an undated letter from V.T.P., M.D., the examiner noted that the veteran was recently seen in May 2003 for evaluation of recurrent sinus infection. The veteran had been treated for recurrent sinus infection with antibiotics and he returned back for a follow-up. The examination showed some minimal sinusitis and was placed again on doxycycline for another 10 days of antibiotic therapy. He was also advised to use some hypertonic nasal solution irrigation to minimize the recurrence of the sinus infection. It was noted that after the veteran's surgeries he had been having chronic recurrent sinusitis, being treated with antibiotics on and off. The Examiner noted that the veteran had been in his office since 1976 for evaluation and management of recurrent sinusitis and felt that in all probability, his infection probably started with exposure to tropical climate during the Second World War service, which perpetuated even after coming to the United States. At his September 2003 Travel Board hearing, the veteran testified that he got a lot of sinus infections and headaches. He indicated that when he got sinus infections he had discharge and had pressure around his face and eyes. He indicated that he could not tell how often he got sinus infections, because all of a sudden they would come. He testified that he could have it maybe two, three times, four times a month, maybe sometimes every week. He stated that he got his antibiotics from a private doctor and he also took Advil that he bought over the counter. He indicated that the seasons did not affect his infections. The veteran explained that he had to sleep half sitting up because it hurt in his back and he could hardly breathe. Criteria Under VA regulations, sinusitis is evaluated pursuant to the criteria found at 38 C.F.R. § 4.97, Diagnostic Code 6510. The veteran has been rated 50 percent for his sinus disability. A 50 percent evaluation is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, which is the maximum evaluation under this criteria. Analysis As noted above, Diagnostic Code 6510 does not provide for a schedular rating in excess of 50 percent, and there is no basis to award a schedular rating in excess of 50 percent. At his January 2003 VA examination the veteran reported episodes of flare-ups of his sinus condition at least every four weeks and this was when he had his headaches. Based on the foregoing, it is found that the veteran's sinusitis does not present such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Thus, extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted. For the reasons stated above, it is found that the veteran does not meet or nearly approximate the criteria for a rating in excess of 50 percent for his sinusitis on either a schedular or extraschedular basis. Thus, it is concluded that the preponderance of the evidence is against the claim, and it must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). B. Chronic external hemorrhoids Background Outpatient treatment records from B.P.G., dated January 1996 to April 2001 show that in April 1998, the veteran was seen for complaints of abdominal pressure and constipation. It was noted that he was taking Metamucil and felt better. The examiner noted no hematemesis or melenia. November 1998 entry indicates that the veteran was using Anusol HC. At his February 2001 VA examination, the veteran reported flare-ups of external hemorrhoids at least 3 to 4 times a month lasting for a few days. It was precipitated by constipation and straining with bowel movement. He indicated that it was relieved with increased fiber intake and Preparation-H ointment and suppositories. The veteran denied fecal leakage or involuntary bowel movements and loss of sphincter control. He denied fever, chills, nausea, vomiting, diarrhea or constipation, chest pain, abdominal pain, dysuria, melena, hematochezia, hematemesis, weight loss, shortness of breath, palpitations and syncope. The veteran stated that the external hemorrhoidal condition did interfere with his daily activities especially during flare- ups. Digital rectal examination showed two external hemorrhoids at 3 o'clock and 9 o'clock in position and each measuring approximately 1 x 1 cm in size. There were no signs of thrombosis of either of the hemorrhoids at the present time. The stool was brown in color and was guaiac negative. The diagnosis was chronic external hemorrhoids. A December 2002 letter from B.P.G., M.D., P.A., indicated that the veteran had been under his care since May 1985 and that his recurrent sinusitis and headaches had aggravated his other medical conditions to include his irritable bowel syndrome, constipation and diverticulosis and hemorrhoids, noting that the veteran had had two massive diverticular bleeds. At his December 2002 RO hearing, the veteran testified that he has been told by doctors to take a lot of roughage. He indicated he took something every night, like stool softener and sometimes it did not work. He stated he had two big hemorrhoids and the other ones were fissures. He testified that doctors in the 1960s and 1970s injected them to shrink them. He indicated they were always hurting and could no longer eat spicy food. The veteran testified that he receives Hydrocortisone Primaxin from a clinic in Las Cruces. The veteran indicated that he took it every night and also took Lactulose and Metamucil. A statement from the veteran's wife dated in January 2003 indicated that the veteran had a lot of problems with painful hemorrhoids and got constipated and went through a lot of pain. At his January 2003 VA examination, the veteran reported having trouble with his hemorrhoids daily. Basically he indicated the symptoms were rectal pain that was constant and moderate in intensity. He indicated that his pain was usually worsened when he had spicy foods, so he tried to avoid this. He denied having any problems with his sphincter control. He denied having any fecal leakage and denied having any involuntary bowel movements. He reported having occasional rectal bleeding, but his rectal bleeding was mild, only streaks of blood on the toilet paper. He indicated that he never had any thrombosed hemorrhoids in the last year. He stated that the last time he had an episode of thrombosed hemorroids was 25 years ago. He reported that the treatment he received presently involved taking Lactulose syrup where he took one tablespoonful at bedtime. He tried to use a lot of food with fiber. Besides that, he stated that he used Cascara sagrada for his hemorrhoids as well. He indicated that this condition affected his daily activities because he had to watch very carefully his diet. He tried to avoid any food that could cause that worsening of his hemorrhoids. The rectal examination showed two mild external hemorrhoids, one at the 3 o'clock area and one at the 7 o'clock area. These hemorrhoids were small and not thrombosed or inflamed at this time. The rectal examination was mildly painful with good rectal tone. The examiner did not palpate any internal hemorrhoids. Guaiac test was done and it was negative. At his September 2003 Travel Board hearing, the veteran testified that his family doctor would shrink his hemorrhoids approximately 50 years ago and right now they had become fissures. He described leakage from the fissures and described having pain. He stated that he saw his private doctor approximately every four or five months and he had prescribed a foam insert for his hemorrhoids. The veteran testified that he never saw blood in the toilet, but did see blood when he wiped. He indicated that as long as he was regular the blood was not bad, but when he ate spicy foods it would do it. The veteran testified that he did not wear anything special to keep himself clean and only had a problem when he wiped. He indicated that he still used ointment. Criteria Regarding the veteran's claim for an increased evaluation for service-connected hemorrhoids, it is noted that, effective July 2, 2001, the schedular criteria for the evaluation of service-connected digestive system disorders underwent revision. Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant must apply unless Congress or the Secretary provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1991). As there is no indication that the Secretary has precluded application of either the old or amended version of the pertinent regulations, due process considerations dictate that the veteran's claim for an increased evaluation for service- connected hemorrhoids be evaluated under the pertinent regulations effective both before and after the July 2, 2001 changes to the rating schedule. Bernard v. Brown, 4 Vet. App. 384 (1995). However, in the case at hand, that portion of the regulations governing the veteran's claim for an increased evaluation has undergone no substantive change. Accordingly, application of either the old or amended version of the regulations will produce an identical result. The veteran's hemorrhoids are currently rated as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7336, for hemorrhoids, external or internal. Under this Code a 10 percent evaluation is contemplated where the hemorrhoids are shown to be large or thrombotic, and which are irreducible with excessive redundant tissue, and with evidence of frequent recurrences. Where there is persistent bleeding and with secondary anemia or fissures, a 20 percent evaluation is warranted. Under Diagnostic Code 7336, a 20 percent evaluation is the highest rating available. Id. Analysis It is concluded that that a disability evaluation in excess of 10 percent is not warranted for the service connected hemorrhoids under the provisions of Diagnostic Code 7336. The veteran's February 2001 VA examination found two external hemorrhoids at 3 o'clock and 9 o'clock in position and each measuring approximately 1 x 1 cm in size. There were no signs of thrombosis of either of the hemorrhoid. The stool was brown in color and was guaiac negative. The veteran reported flare-ups of the external hemorrhoids at least 3 to 4 times a month lasting for a few days. It was precipitated by constipation and straining with bowel movements. It was relieved with increased fiber intake and Preparation-H ointment and suppositories. The veteran denied fecal leakage or involuntary bowel movements and loss of sphincter control. He denied fever, chills, nausea, vomiting, diarrhea or constipation, chest pain, abdominal pain, dysuria, melenia, hematochezia, hematemesis, weight loss, shortness of breath, palpitations and syncope. The veteran stated that the external hemorrhoidal condition did interfere with his daily activities especially during flare-ups. A December 2002 letter from B.P.G., M.D., P.A., indicated that the veteran had been under his care since May 1985 and that his recurrent sinusitis and headaches had aggravated his other medical conditions to include his irritable bowel syndrome, constipation and diverticulosis and hemorrhoids. The examiner noted that the veteran had had two massive diverticular bleeds, but did not give a date or circumstances. At his January 2003 VA examination, the veteran reported having trouble with his hemorrhoids daily. Basically he indicated the symptoms were rectal pain that was constant and moderate in intensity. He indicated that his pain was usually worsened when he had spicy foods, so he tried to avoid this. He denied having any problems with his sphincter control. He denied having any fecal leakage and denied having any involuntary bowel movements. He reported having occasional rectal bleeding, but his rectal bleeding was mild, only streaks of blood on the toilet paper. He indicated that he never had any thrombosed hemorrhoids in the last year. He stated that the last time he had an episode of thrombosed hemorrhoids was 25 years ago. He reported that the treatment he received presently involved taking Lactulose syrup where he took one tablespoonful at bedtime. He tried to use a lot of food with fiber. Besides that, he stated that he used Cascara sagrada for his hemorrhoids as well. He indicated that this condition affected his daily activities because he had to watch very carefully his diet. The rectal examination showed two mild external hemorrhoids, one at the 3 o'clock area and one at the 7 o'clock area. These hemorrhoids were small and not thrombosed or inflamed at this time. The rectal examination was mildly painful with good rectal tone. The examiner did not palpate any internal hemorrhoids. Guaiac test was done and it was negative. Although the veteran testified in his September 2003 Travel Board hearing that he had fissures and had leakage, the veteran indicated that he did not wear any special protective under clothing for this problem and denied leakage in his VA examinations. As is clear from the above, the veteran's presenting symptomatology warrants no more than a 10 percent evaluation. While it is true that, at present, the veteran continues to experience various problems, there is no indication that, as a result of the hemorrhoids, he experiences persistent bleeding productive of secondary anemia, or anal fissures. Under such circumstances, the 10 percent evaluation currently in effect is appropriate, and an increased rating is not warranted. ORDER Entitlement to an evaluation in excess of 50 percent for left maxillary and ethmoid sinusitis, residuals of a nasal bone fracture, post operative is denied. Entitlement to an evaluation in excess of 10 percent for chronic external hemorrhoids is denied. ____________________________________________ G. H. SHUFELT 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