Citation Nr: 0204986 Decision Date: 05/23/02 Archive Date: 06/03/02 DOCKET NO. 98-19 425A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether the veteran has submitted an adequate substantive appeal with respect to the issue of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy. 2. Whether the veteran has submitted an adequate substantive appeal with respect to the issue of entitlement to service connection for osteoarthritis of both knees. 3. Whether the veteran has submitted an adequate substantive appeal with respect to the issue of entitlement to service connection for hearing loss. 4. Whether the veteran has submitted an adequate substantive appeal with respect to the issue of entitlement to service connection for tinnitus. 5. Whether the veteran has submitted an adequate substantive appeal with respect to the issue of entitlement to a permanent and total disability rating for nonservice- connected pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Saadat, Counsel INTRODUCTION The veteran had active military service from August 1954 to August 1956. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the above claims. In June 1999, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) and (e) (West Supp. 2001). A transcript of the hearing is of record. This case has been advanced on the docket because of administrative error resulting in significant delay in docketing the case. 38 C.F.R. § 20.900(c) (2001). In January 2000, the Board determined that the veteran had failed to perfect an appeal through the filing of an adequate substantive appeal, and dismissed his claims of entitlement to service connection and nonservice-connected pension. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2001, the Court vacated the Board decision and remanded for readjudication of whether the substantive appeal was adequate and for consideration of the applicability of the Veterans Claims Assistance Act of 2000 by the Board in the first instance, and, if necessary, to readjudicate the issues on the merits. The current decision of the Board responds to the mandate of the Court. FINDINGS OF FACT 1. The veteran's VA Form 9 received in December 1998 did not discuss any errors of fact or law regarding the claims of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and entitlement to nonservice-connected pension benefits. 2. The written argument presented by the veteran's representative in April 1999 did not discuss any errors of fact or law regarding these claims. 3. The veteran did not file an adequate substantive appeal with respect to these claims. CONCLUSION OF LAW An adequate substantive appeal of the claims of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and entitlement to a permanent and total disability rating for nonservice- connected pension purposes was not filed, and the Board lacks jurisdiction to consider these issues. 38 U.S.C.A. §§ 7104(a), 7105(a), (d)(3) and (5), and 7108 (West 1991 & Supp. 2001); 38 C.F.R. §§ 20.200, 20.202, and 20.203 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The salient facts are procedural. By a July 1998 rating decision, the RO, in pertinent part, denied service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and denied entitlement to nonservice-connected pension benefits. The veteran was advised of this decision in a letter dated on August 11, 1998, and he filed a notice of disagreement (NOD) in August 1998. A statement of the case (SOC) was issued in September 1998, which included these five issues. The veteran submitted a VA Form 9 on December 8, 1998. On this form, he checked a box indicated that he wanted to appeal all the issues listed on the statement of the case, and checked a box indicating that he wanted a hearing before a Board member at the RO. The veteran also wrote the following sentence: "I will give my arguments and contentions at a hearing before a member of the Board of Veterans Appeals." In a VA Form 646 dated in April 1999, the veteran's representative listed the five issues referenced in the SOC, and stated that contentions of the veteran and his representative would be expressed during a Board video conference hearing. The veteran testified at a video conference hearing before the undersigned Board member on June 28, 1999. At the beginning of the hearing, the veteran was advised that the issue of the adequacy of the substantive appeal may have been raised. He was given the option to present evidence or argument on this procedural issue at the hearing, or during a subsequent 60 day period, with notice being provided by letter. The veteran proceeded to testify concerning the merits of his claims. In a September 1999 letter, the veteran was advised that the Board had raised the issue of the adequacy of his substantive appeal. He was provided references to the pertinent laws and regulations concerning the requirements of substantive appeals, and was given 60 days from the date of the letter to present written argument or request a hearing on this issue. Neither the veteran nor his representative responded to this letter. II. Analysis A. Appeal Adequacy Questions as to timeliness or adequacy of appeals shall be determined by the Board of Veterans' Appeals. 38 U.S.C.A. § 7105(d)(3) (West 1991); 66 Fed. Reg. 53,339-53,340 (Oct. 22, 2001) (to be codified at 38 C.F.R. § 20.101(d)). The initial question that must be resolved is whether the Board has jurisdiction to consider the issues of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and entitlement to nonservice- connected pension benefits. Although the Board has the obligation to assess its jurisdiction, it must consider whether doing so in the first instance is prejudicial to the veteran. Cf. Marsh v. West, 11 Vet. App. 468 (1998); see also Bernard v. Brown, 4 Vet. App. 384 (1993). As noted by the United States Court of Appeals for the Federal Circuit, "it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must be adjudicated." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (citations omitted). In this case, the Board concludes that its consideration of this issue does not violate the veteran's procedural rights. The September 1999 letter to the veteran provided him with notice of the regulations pertinent to the issue of adequacy of the substantive appeal, as well as notice of the Board's intent to consider this issue. He was also advised of the Board's intent to consider this issue at his June 1999 hearing. The veteran was given 60 days to submit argument on this issue and provided an opportunity to request a hearing on this issue. He did not request a hearing, nor did he submit any argument concerning the adequacy of his substantive appeal. In order to perfect an appeal of an adverse determination, governing statutory and regulatory provisions require the submission, following an adverse rating action and adequate notice thereof, of a NOD and, following issuance of a statement or supplemental statement of the case, an adequate substantive or formal appeal. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. §§ 20.200, 20.202 (2001). In this case, there is no question that the veteran received adequate notice of the July 1998 rating decision, that he filed a timely NOD properly identifying the issues with which he disagreed, and that a statement of the case was issued. The question, then, is whether an adequate substantive appeal was submitted. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 C.F.R. § 20.202 (2001). The substantive appeal should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.202 (2001). To the extent feasible, the argument should be related to specific items in the SOC. 38 C.F.R. § 20.202 (2001). The Board will construe such arguments in a liberal manner for the purposes of determining whether they raise issues on appeal. Id. Questions as to the adequacy of allegations of a substantive appeal will be made by the Board, which may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(3),(5) (West 1991); 38 C.F.R. §§ 20.202, 20.203 (2001). An appeal must be filed within a year of notice of the adverse rating decision, or within 60 days of the issuance of the SOC, whichever is longer. 38 U.S.C.A. § 7105(b)(1), (d)(3) (West 1991); 38 C.F.R. § 20.302(b) (2001). Since the SOC in this case was issued shortly after the September 1998 rating decision, a substantive appeal had to be filed within one year of notification of that decision. An appeal must be filed with the activity which entered the determination with which disagreement is expressed, also called the "agency of original jurisdiction." 38 U.S.C.A. § 7105(b) (West 1991). The agency of original jurisdiction in this case is the Montgomery RO. Following the issuance of the September 1998 SOC, the veteran submitted a VA Form 9 in December 1998. On this form, he checked a box indicating that he wanted to appeal all the issues listed on the statement of the case, and checked a box indicating that he wanted a hearing before a Board member at the RO. He also wrote that he would present arguments and contentions at a Board hearing. In an April 1999 Form 646, the veteran's representative listed the five issues referenced in the SOC, and stated that contentions would be expressed during the Board hearing. The Board does not find either these documents to be an adequate substantive appeal. Neither document even attempts to make specific contentions regarding the veteran's claims, and there were no identified errors of fact or law cited by the veteran or his representative with respect to these issues. In his October 2000 brief, the veteran's attorney argued that neither statute nor regulation requires that a claimant offer a specific argument explaining why the RO's decision was wrong. This is technically correct, as the operative word in both the statute and regulation is not "must" but rather, "should" (i.e., the substantive appeal should set out specific arguments, etc.). However, both statute and regulation also state that the Board shall determine the adequacy of the substantive appeal and "may dismiss" any appeal which fails to allege specific error of fact or law. 38 U.S.C.A. § 7105(d)(3), (5) (West 1991); 38 C.F.R. § 20.202 (2001). While the Board is to liberally construe arguments made by the veteran in this case, there was not even an attempt to make any arguments in either the VA Forms 9 or 646. The Board does not suggest that a VA Form 9 is the only document which can constitute a substantive appeal. Rather, it is any "correspondence" which sets out specific arguments relating to errors of fact or law made by the RO in the SOC. Neither the Form 9 nor the Form 646 contain such arguments, and thus the Board finds that neither document, whether viewed individually or jointly, constitutes an adequate substantive appeal. The next question is whether the transcript of the veteran's video conference hearing conducted on June 28, 1999, constitutes an adequate substantive appeal. In general, a claimant's testimony before the RO can be accepted in lieu of a VA Form 9 once it is reduced to writing when the hearing is transcribed. Cf. Tomlin v. Brown, 5 Vet. App. 355 (1993) (hearing testimony before the RO, when reduced to writing, can constitute an NOD). Having been given to an agent of the RO (hearing officer or decision review officer), and having been reduced to writing, it may be reasonably said to have been filed at the RO. However, in this case, the veteran's testimony cannot constitute an adequate substantive appeal, since the hearing was before the Board, not the RO. This distinction is important. Federal statute provides that substantive appeals "must be in writing and be filed with the activity which entered the determination with which disagreement is expressed (hereafter referred to as the 'agency of original jurisdiction')." 38 U.S.C.A. § 7105(b)(1) (West 1991) (emphasis added). Likewise, the pertinent regulation states that a substantive appeal "must be filed with the [VA] office from which the claimant received notice of the determination being appealed . . ." 38 C.F.R. § 20.300 (2001). The RO was the agency of original jurisdiction which denied the veteran's claims, and is the entity with which a substantive appeal must have been filed. The Board is bound by Federal law. 38 U.S.C.A. § 7104(a), (c) (West 1991 & Supp. 2001); 38 C.F.R. § 20.101(a) (2001). In Beyrle v. Brown, 9 Vet. App. 24, 28 (1996), the Court, citing Tomlin v. Brown, 5 Vet. App. 355 (1993), noted that hearing testimony before the Board, even though given within the one-year NOD filing period, cannot constitute a valid NOD, because it was taken before the Board and not the RO, and thus it did not serve to trigger or initiate appellate review. The Court also noted that the Board had waived the filing of a Form 1-9 appeal in that case by proceeding to decide the claims without requiring that one be filed. In an October 2000 brief, the veteran's counsel argued that reliance on Beyrle is inapposite to this case. In a January 2001 motion in "opposition," VA's general counsel utterly conceded this point, apparently because the facts of the Beyrle case are different from the instant appeal and because it pertains to the adequacy of an NOD rather than a substantive appeal. The Board recognizes that there is a difference between an NOD and a substantive appeal, and that Beyrle is not strictly on point with this case. The Board's citation of Beyrle was not intended to blur the distinction between an NOD and a substantive appeal. The Board's citation was intended to point out that, in Beyrle, the Court recognized the important distinction between a hearing before the Board and a hearing before the RO, in the context of determining whether such a hearing could initiate an appeal (i.e., as a substitute for a written notice of disagreement). The case now before the Board involves the question whether a hearing before the Board can perfect an appeal. To date, there has been no Court case specifically addressing the question of whether hearing testimony before the Board may constitute a written substantive appeal. The Board therefore looked to Beyrle for guidance rather than controlling authority. In Beyrle, the Court recognized the distinction between the agency of original jurisdiction and the Board and recognized the significant line drawn, in statute and regulation, between the process of initiating an appeal and having that appeal decided by the Department's appellate body. Statute and regulation make the same distinction between the agency of original jurisdiction and the Board with respect to the place of filing or perfecting a written appeal. It must be filed at the agency of original jurisdiction. Statute and regulation draw the same line with respect to where an appeal is perfected (the agency of original jurisdiction) and where it is decided (the Board). To give effect to the statutory and regulatory language dictating where a notice of disagreement is filed, while at the same time ignoring statutory and regulatory language dictating where an appeal is perfected would leave appellants and their representatives in a quandary. If the same statutory language means one thing with respect to notices of disagreement, but another with respect to substantive appeals, those who would appeal adverse determinations are left uncertain. Do they fulfill the statutory and regulatory requirements, which require both a notice of disagreement and a timely and adequate substantive appeal, both to be presented to the agency of original jurisdiction? 38 U.S.C.A. § 7105(a), (b)(1) (West 1991); 38 C.F.R. §§ 20.200, 20.300 (2001). If they do not have to meet the statutory and regulatory requirements, what unwritten or unstated requirements must they meet? While the Court in Beyrle found that the Board in that case had waived the filing of an appeal and thus had assumed jurisdiction over the appeal, the Board in the instant case has not waived the requirements of statute and regulation as to adequacy and place of filing an appeal. For the Board to ignore the statutory and regulatory requirements for perfecting an appeal would be to render both statute and regulation meaningless. The Board is bound by statute and regulation. 38 U.S.C.A. § 7104(a), (c) (West 1991 & Supp. 2001); 38 C.F.R. § 20.101(a) (2001). The Board is bound in fairness to all would-be appellants to give meaning to the statute and regulation. The veteran's counsel also notes that VA's Adjudication Procedures Manual (M21-1) expressly provides that hearing testimony may be accepted as a substantive appeal in the same manner as a notice of disagreement. Indeed, the pertinent section of M21-1 directs that a "statement from a transcript of a personal hearing may be accepted as a substantive appeal in the same manner as notices of disagreement see paragraph 8.05)." M21-1, Part IV, 8.15 (emphasis added). Yet this merely reiterates the essential principle set out in Beyrle, that a hearing before the RO, may equate a notice of disagreement, or under this provision of M21-1, a substantive appeal. In the present case, there was no such hearing before the RO. Rather, the June 1999 hearing was before the Board, via videoconference. The fact that the veteran was physically at the RO when he proffered his testimony is not relevant. Federal statute simply does not permit hearing testimony before the Board to substitute as an adequate substantive appeal. The veteran's counsel seems to suggest that the phrase "personal hearing" in M21-1, Part IV, 8.15 is inclusive of a hearing before the Board. There is no authority for such a proposition. In fact, in a 1996 case, the Court requested briefs on several questions, including the applicability of M21-1, Part IV, 8.15, and the cross- reference to 8.05(a)(1), insofar as whether a statement from a personal hearing can fulfill the requirement of 38 U.S.C. § 7105(b)(2) for a substantive appeal, and insofar as whether the date when the transcript is certified will be the date of receipt of the substantive appeal. Swan v. Brown, 9 Vet. App. 450 (1996). However, this appeal was dismissed pursuant to a settlement agreement reached by the parties, and no briefs were submitted. Nevertheless, the fact that the Court sought briefing on these questions suggests that it is incorrect to assume that the phrase "personal hearing," as used in M21-1, Part IV, 8.15, is inclusive of a hearing before the Board and thus interchangeable with a substantive appeal. To interpret M21-1, Part IV, 8.15 as permitting testimony before the Board as an adequate substitute for a substantive appeal would clearly run afoul of the congressional intent manifested in 38 U.S.C.A. § 7105(b)(1). The Supreme Court has consistently held that for an agency's interpretation or action to be entitled to any deference or judicial enforcement, it must be consistent with the framework of a statute. Cf. Brown v. Gardner, 513 U.S. 115 (1994) (longstanding VA regulation not entitled to deference because of clear inconsistency with governing statute). The veteran's representative has also argued that, because the VA claims process is informal, ex parte, and pro- claimant, a veteran is neither expected or required to present formal legal arguments concerning why he believes a rating decision is incorrect. It is correct that the VA claims process is informal, and that the Board must review all issues reasonably raised from a liberal reading of a substantive appeal. Myers v. Derwinski, 1 Vet. App. 127, 130 (1991). However, neither the VA Form 9 nor the Form 646 contained any argument. Thus, even a most liberal reading of the Form 9 and the Form 646 fails to indicate what errors of fact or law were allegedly made by the RO. As noted above, Federal statute prohibits the Board from considering the veteran's hearing testimony before the Board to constitute his substantive appeal. The veteran's representative before the Court correctly noted that M21-1 requires that the RO determine whether a substantive appeal is deficient and advise the claimant and his representative of the substantive deficiencies noted. M21-1, Part IV, 8.17 (March 24, 2000). In this case, the veteran was never informed by the RO of any deficiencies in his specification of errors of fact or law, and in fact the RO prepared a VA Form 8 "Certification of Appeal." The veteran's attorney argued that because of these actions, the RO effectively waived any deficiencies in the veteran's substantive appeal. Whether the RO concluded in this case that the VA Form 9 or Form 646 were adequate (and thus chose not to advise him otherwise) is irrelevant. It is ultimately the Board, not the RO, that determines the adequacy of a substantive appeal and the Board may reject an application for review on appeal. 38 U.S.C.A. §§ 7105(d)(3), 7108 (West 1991); 38 C.F.R. § 20.203 (2001). Moreover, a certification by the RO is for administrative purposes only and "does not serve to either confer or deprive the [Board] of jurisdiction over an issue." 38 C.F.R. § 19.36 (2001). Finally, the veteran's attorney has argued that between the VA Form 9, Form 646, and the June 1999 video conference hearing, the Board was fully informed of the issues appealed by the veteran, and it was improper to dismiss his appeal. There is no question that it is clear what issues the veteran wanted to appeal. He said on his Form 9 that he wanted to appeal all the issues listed in the statement of the case. This argument by the attorney misses the point. The issue is whether the veteran asserted in a substantive appeal errors of fact or law made by the RO in its adjudication, and whether he asserted these errors in writing presented to the RO. The veteran's hearing was, as pointed out previously, before the Board and not the RO. Yet the transcript of the hearing reflects that the veteran was advised that the issue of the adequacy of substantive appeal may have been raised, and he was given the option to present evidence or argument on this procedural issue at the hearing, or during a subsequent 60 day period, with notice being provided by letter. The fact that the veteran proceeded to testify concerning the merits of his claims does not signify that the Board waived adequacy of the substantive appeal in this case. An application for review on appeal shall not be entertained unless it is in conformity with chapter 71, Title 38, United States Code. 38 U.S.C.A. § 7108 (West 1991). There has not been an adequate appeal of these issues, so any purported appeal is not in conformity with the law. Furthermore, the veteran and his representative were put on notice on the date of the Board hearing, June 28, 1999, that his appeal may not have been adequate. It was discussed with them before the hearing began, and it was mentioned on the record during the hearing. The veteran had been notified of the RO's adverse determination on August 11, 1998. When the Board hearing was held, he still had until August 11, 1999, a period of some six weeks, in which he could have corrected any inadequacy in his purported substantive appeal by filing at the RO an appeal stating what errors of fact or law had been made in the RO's adverse determination. Neither he nor his representative chose to take this corrective action. Therefore, the appeal was not perfected, and the Board does not waive the statutory and regulatory requirement for presenting an adequate substantive appeal. The Board exercises it discretion to dismiss these purported appeals for failure to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. §§ 7104(a), 7105(a), (d)(3) and (5), and 7108 (West 1991 & Supp. 2001); 38 C.F.R. §§ 20.101(a), 20.200, and 20.202 (2001); YT v. Brown, 9 Vet. App. 195 (1996). B. Veterans Claims Assistance Act of 2000 During the pendency of this claim, there has been a substantial change in the law. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which redefined VA's duty to assist, enhanced its duty to notify a claimant as to the information and evidence necessary to substantiate a claim, and eliminated the well-grounded-claim requirement. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West Supp. 2001). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions (West Supp. 2001). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA has promulgated regulations implementing the VCAA. See 66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The Board has determined that it lacks jurisdiction to consider the underlying claims made by the veteran. Lacking jurisdiction to decide the claims, it is beyond the Board's purview to determine whether the RO's notice and development actions were compliant with the VCAA. However, the Board herein does address whether the Board substantially complied with the VCAA in giving the veteran notice of applicable laws and regulations and sufficient information for him to be able to present evidence and argument pertinent to the issues addressed by the Board. The Board finds that the veteran is not prejudiced by the Board's consideration of its own VCAA compliance in the first instance, because the issue of adequacy of the substantive appeal is one that first arose before the Board. It would be anomalous to refer to the RO for primary consideration the issue of whether the Board complied with VCAA in its consideration of an issue first raised and adjudicated at the Board. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. In this case, the veteran was given notice of the Board's consideration of the issue of adequacy of substantive appeal at his Board hearing in June 1999. On September 24, 1999, the Board wrote to the veteran, with a copy to his representative, notifying him of the requirements of the law with respect to adequate appeals. The veteran was told the Board's reason for questioning the adequacy of his appeal, and he was given a period of 60 days to present additional argument or to request a hearing. The Board therefore provided notice to the veteran of what was lacking in his purported appeal and told him the applicable law. There is no issue as to required information or evidence (cf. 38 U.S.C.A. § 5103 (West Supp. 2001)) or records requiring the assistance of the Secretary to develop (cf. 38 U.S.C.A. § 5103A (West Supp. 2001)). Likewise, the regulations adopted pursuant to the VCAA are pertinent to questions involving notice and development by an agency of original jurisdiction with respect to claims turning on evidentiary development and analysis. This is not such a case. The issue before the Board in this case is one involving application of law to undisputed facts, and there is no potential assistance relevant to the issue of adequacy of substantive appeal, at least under the facts in this case. Accordingly, the Board finds that the Board did, in notifying the veteran of the applicable law regarding adequate substantive appeals and of its reasons for addressing the issue, comply with relevant notice requirements of the VCAA. ORDER The veteran having failed to perfect an appeal through filing of an adequate substantive appeal, the claims of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and entitlement to a permanent and total disability rating for nonservice- connected pension purposes are dismissed. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.