Citation Nr: 0207380 Decision Date: 07/08/02 Archive Date: 07/17/02 DOCKET NO. 96-09 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, her daughter, service officer ATTORNEY FOR THE BOARD W.L. Pine, Counsel INTRODUCTION The veteran had active service from October 1954 to September 1958. This appeal is from an October 1995 rating decision of the Department of Veterans Affairs (VA) Columbia, South Carolina, Regional Office (RO). In April 1998 the appellant and other witnesses testified at a hearing before the undersigned, who is the member of the Board of Veterans' Appeals (Board) designated to hold the hearing and to decide this appeal. 38 U.S.C.A. § 7107(c) (West Supp. 2001). In October 1998, the Board of Veterans' Appeals denied a claim for service connection for the cause of the veteran's death due to radiation exposure, which was then an issue in the instant appeal. The Board remanded the claim for service connection for the cause of the veteran's death due to asbestos exposure. In September 2000, the Board remanded the case again for VA to assist the appellant to develop evidence in her claim pursuant to the Board's finding that the claim was well grounded under then-applicable law. See 38 U.S.C.A. § 5107(a) (West 1991). The case is again before the Board. FINDINGS OF FACT 1. The veteran died in May 1995 of pneumonia due to or as a result of lung cancer without other contributing cause. 2. At the time of death the veteran's sole service-connected disability was the residual of a left index finger injury, rated 10 percent disabling since January 1960. 3. The veteran's and others' lay reports of asbestos exposure in service are uncorroborated speculation. 4. The veteran had extensive industrial exposure to asbestos subsequent to his separation from service. 5. Intercurrent asbestos exposure unrelated to service caused or contributed to the veteran's fatal lung cancer. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or substantially or materially contribute to the veteran's death. 38 U.S.C.A. § 1110, 1131, 1310, 5107 (West 1991 & Supp. 2001); 38 C.F.R. § 3.312 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and to Assist The November 9, 2000, enactment of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West Supp. 2001), prescribed VA's duties to notify claimants for VA benefits of forms and information necessary to submit to complete and support the claim, to provide necessary forms, and to assist the claimant in the development of evidence. VA has promulgated regulations implementing the VCAA. See 66 Fed. Reg. 45,620- 45,632 (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 VCAA prescribed only 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 Supp. 2001). 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 claim at issue. VA must provide forms necessary to prosecute a claim for VA benefits. 38 U.S.C.A. § 5102 (West Supp. 2001); 38 C.F.R. § 3.150(a) (2001). The appellant filed the form to apply for dependency and indemnity compensation (DIC) in Jun 1995. No other form is necessary or need be provided to prosecute her claim. VA must notify the claimant of evidence and information necessary to substantiate her claim. 38 U.S.C.A. § 5103(a) (West Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(b)). In October 1995, VA provided the appellant a copy of the rating decision of that month, which stated there was no evidence of asbestos exposure in service. The appellant was thereby informed that VA viewed the evidence of record as devoid of evidence of asbestos exposure in service and on notice to submit such evidence. The January 1996 statement of the case (SOC) further informed the appellant that the record lacked evidence that the veteran had had asbestos- related lung disease, thereby informing her that the record lacked evidence that asbestos-related illness caused or contributed to the veteran's death. An October 1996 VA letter to the appellant requesting authorization to obtain certain evidence inherently informed her that such evidence was necessary to substantiate her claim, and that VA would obtain it for her. A supplemental SOC (SSOC) provided the appellant in November 1996 informed her of medical conditions associated with asbestos exposure, the status of the evidence pertinent to the veteran's medical condition at death and history of asbestos exposure, and the deficiencies in the evidence to substantiate a medical opinion submitted on the appellant's behalf. The transcript of an April 1998 hearing before the undersigned transcribed discussion between the appellant and her representative about the need for evidence showing the veteran's work activities in service to corroborate his assertions during his life of exposure to asbestos, thus demonstrating the appellant's actual knowledge of the necessity of submitting such evidence to substantiate her claim. The Board provided the appellant and her representative copies of the October 1998 remand, which set forth in detail elements for VA to consider in adjudicating a claim of disability based on alleged asbestos exposure and the evidence necessary to substantiate such a claim. A November 17, 1998, VA letter to the appellant set forth in detail the types of evidence and specific medical evidence, identified by provider and date, that she should submit to substantiate her claim. An April 1999 SSOC again informed the appellant of the state of the evidence and of the deficiencies to be overcome to substantiate her claim. The Board provided the appellant and her representative copies of the September 2000 remand, which again set forth in detail the evidence necessary to substantiate the claim. A December 2000 VA letter to the appellant informed her of specific evidence necessary to substantiate the claim, identifying and distinguishing between evidence requested of her and evidence VA would seek on her behalf upon provision of authorization to do so. Finally, a July 2001 VA letter informed the appellant explicitly in terms of the VCAA of the evidence necessary to substantiate her claim, of her obligation to submit or authorize VA to obtain evidence on her behalf, including obtaining medical opinions if necessary, of the time allowed for submission of evidence or authorization for VA to obtain evidence, and of the consequences of non- or untimely submission of evidence or information. The most recent SSOC, February 2002, provided the appellant and her representative an update on the status of the evidence and thus of the evidence yet necessary to substantiate the claim. Incidentally, in March 1995, prior to his death, VA requested the veteran to provide information to substantiate his November 1994 statement asserting the possibility of his exposure to asbestos while in the service. Thus, although not responsive to the VCAA as it pertains to this claimant, notice of the evidence necessary to establish service connection related to asbestos exposure has been in the record pertinent to this appeal since March 1995. In sum, VA has discharged its duty to inform the appellant of the evidence and information necessary to substantiate her 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 Supp. 2001); 66 Fed. Reg. 45,620, 45,630-31 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(c), (d)). 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) and (c) (West Supp. 2001); 66 Fed. Reg. 45,620, 45,630-31 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(c)(1-3)). In November 1995, VA requested the National Archives and Records Administration (NARA) and the Navy to provide information on the veteran's duties in service or other documentation of asbestos exposure in service. The NARA and the Navy provided available Navy personnel records on the veteran, showing assignments and duties in service and information about the ships on which he served. The Navy reported that it did not create the specific form of ship history that VA requested until after the veteran's time in service. VA sought evidence and information from private sources as authorized by the appellant through letters of October 1996 to Tuomey Hospital; December 2000 to DuPont Nylon May Plant; April 2001 to Dr. F. McCorkle Jr., Dr. J. Sutton, Kershaw County Memorial Hospital, and Providence Hospital. VA sought government records and information through letters of December 2000 and July 2001 to the Southeastern Program Service Center (Social Security Administration) and of December 2000 to U.S. Naval Historical Center. VA obtained evidence from all parties from whom requested, except as revealed in the record, noted below. The appellant submitted evidence that VA requested she submit. In addition to compliance with the VCAA generally, the development implemented VA's internal program guidance for the development of claims based on exposure to asbestos. See VA Manual M21-1, Part VI, 7.21 b, d (Change 84 Mar. 20, 2002). VA has discharged its duty to assist the appellant to obtain evidence to substantiate her claim. Assistance shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West Supp. 2001); 66 Fed. Reg. 45,620, 45,631 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(c)(4)). The veteran's death certificate reveals no autopsy was performed, and no other examination is possible. The appellant has submitted two medical opinions and no others are deemed necessary, as the medical opinions resolve the essential medical question at issue in the case. These opinions satisfy VA internal program guidance regarding diagnosis in claims based on asbestos exposure. See VA Manual M21-1, Part VI, 7.21 c (Change 84 Mar. 20, 2002). There is no outstanding duty to obtain medical opinion in support of the appellant's claim for VA to discharge. VA must notify the veteran of a failure to obtain evidence from any source. 38 U.S.C.A. § 5103A(b)(2) (West Supp. 2001); 66 Fed. Reg. 45,620, 45,631-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(e)). VA's letter of July 2001 notified the appellant of VA's failure to obtain requested evidence from Social Security Administration and from DuPont Nylon May Plant. A subsequent July 2001 letter to VA from the Social Security Administration reported that it did not have the veteran's records and could not report the reason for his receipt of SSA disability benefits, but that it could confirm the period during which he received them. There are no deficiencies in notice or assistance that might benefit the claimant. The requirements of the VCAA and the implementing regulations have been substantially met by the RO, and the RO has considered and applied the provisions of the VCAA, notifying the appellant of its requirements and the assistance available to her in the July 2001 letter. Although the implementing regulations were not yet final at that point, there is no prejudice for the Board to consider the regulations in the first instance, because the regulations do not provide any rights beyond those provided by the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. There would be no possible benefit to remanding the case for the RO to consider the regulations in the first instance. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the [claimant]); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the [claimant] are to be avoided). II. Service Connection for Cause of Death In seeking service connection for the cause of the veteran's death, the appellant seeks to establish that the veteran's death resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001). Such a disability is called "service connected." 38 U.S.C.A. § 101(16) (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2001). The appellant must establish that the veteran died of a service-connected or compensable disability. 38 U.S.C.A. §§ 1310(a) (West 1991). Under the pertinent regulation, service connection is established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (2001). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In this case, there are two factual questions to decide: first, whether asbestos exposure caused or contributed to the veteran's death within the meaning of the regulation; and second, if so, whether the causative or contributing asbestos exposure occurred in service. The immediate and next proximate cause of death, pneumonia due to lung cancer is not in dispute. The Board disposed of another theory of latent cause of lung cancer in a prior decision. There is no contention of record that the veteran actually developed lung cancer in service, and no contention of other temporally remote cause than asbestos exposure is for review in this decision. VA has developed internal guidance for the process of developing and evaluating evidence in claims based on exposure to asbestos. See VA Manual M21-1, Part VI, 7.21 (Change 84 Mar. 20, 2002). Except for paragraph 7.21d. (2), inapplicable in this case, neither these manual provisions nor their predecessor provisions confer any presumption of asbestos exposure in service or other substantive rights. VAOPGCPREC 4-2000; Dyment, 287 F.3d 1377. The Board's review takes into consideration both the medical facts that inform a determination whether asbestos caused the veteran's lung cancer and the historical facts that inform the determination whether there was asbestos exposure in service as set forth in M21-1, Part VI, 7.21. A South Carolina certificate of death indicates the veteran died in May 1995 from pneumonia due to lung cancer. A March 1996 statement from a private physician noted the veteran recalled supplying and distributing pipe covered with asbestos during service from 1954 to 1958 and working near the installation and removal of pipe insulators containing asbestos and using such insulating materials while working as a spinner at a DuPont plant from 1967 to 1972. The physician indicated that the veteran's exposure to asbestos and latency between asbestos exposure and development of a cancer histologically consistent with asbestos exposure were consistent with the conclusion the veteran had lung cancer related to asbestos exposure and asbestosis. A December 1998 statement from a private physician noted extensive review of the veteran's medical records. The examiner noted the veteran's report of loading and unloading asbestos containing material, and of ripping out and replacing insulation on steam lines during service from 1954 to 1958. The veteran also reported subsequent asbestos exposure while working at a DuPont plant from 1967 to 1972 when he worked around high temperature machinery and steam lines insulated with asbestos with exposure to dust during removal and application of asbestos insulation. The physician identified the medical evidence informing his opinion that the case met the clinical criteria for a diagnosis of asbestosis and that the veteran's tumor must be considered an asbestos related neoplasm. Both physicians addressed his opinion to the law firm representing the appellant in a civil suit against asbestos manufacturers. Neither opinion distinguished between the reported sources of asbestos exposure as the causative source. The medical opinions cited are sufficient evidence to support the conclusion that asbestos exposure caused or contributed to the cause of the veteran's death. No other evidence of record outweighs the evidence supporting that finding. The remaining question is whether the veteran in fact sustained the causative asbestos exposure in service as alleged. The veteran's service personnel records include his enlistment papers showing his occupation prior to service as a farm hand on his father's farm. There is no evidence that the veteran had exposure to asbestos prior to service. Consequently, he must be presumed to have been sound on entrance in that regard. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (2001). The veteran's service personnel records show he served with Naval Cargo Handling Battalion Two from February 1955 to September 1955, the USS Chimon (AKS-31) from September 1955 to February 1958, and the USS Rainier (AE-5) from April 1958 to September 1958. His grades in service were SA (Seaman Apprentice), SN (Seaman), and SK (storekeeper). He qualified to take the test for SK third class in January 1958 during service on the USS Rainier. He was a storekeeper when transferred for hospitalization in February 1958. His grade was SN at the time of discharge from service. Service medical records are uninformative about whether the veteran sustained asbestos exposure in service. There is no medical record of respiratory problems in service. A January 2000 statement from Navy Medical Liaison Office indicated that there was no way of determining the extent of the veteran's exposure to asbestos during his naval service. The report stated that ships of the period of his service required insulation of heated surfaces, and it was highly probable that asbestos products were used on pipe fittings, flanges, valves, fittings, machinery, boilers, evaporators and heaters. The veteran's occupation as a seaman (SN) had a minimal probability of exposure to asbestos. The Medical Liaison Office could not make a positive statement whether he was exposed. The Navy provided an excerpt from the Seaman (SN) Apprenticeship Occupational Standards: SEAMEN (SN) maintain ship's compartments, decks, deck machinery and equipment, external structure, lines and riggings; stand deck watches, such as helmsman, lookout and messenger watches underway[,] stand pier sentry, fire security, anchor and other special watches in port; man and operate small boats, booms, cranes and winches; act as members of gun crews and damage control parties. In multiple statement during his lifetime, the veteran reported his exposure to products containing asbestos and to asbestos dust in service. In November 1994 he stated that part of his duty aboard ship was making repairs, and he was possibly exposed to asbestos. In a statement of December 1994 he reported his employment after service. In another, undated statement, he reported that he built and repaired Quonset huts while stationed on Guam, which required handling asbestos-bearing products such as cement and wall board, that he handled such products as a longshoreman, and that aboard ship he repaired pipe insulation and worked as a steam fitter using asbestos-laden products. In other statements he reported that as a storekeeper he handled products containing asbestos and that he worked in the vicinity of pipe maintenance with asbestos insulators that made dust. Seven affidavits from the veteran, dated in April 1995, show that he claimed he worked in the vicinity of asbestos containing products, which produced visible dust during his service in the Navy. The veteran named the products and manufacturers. Documents from a private law firm that represented the appellant in a civil lawsuit for damages resulting from the veteran's death include a July 1995 summons and complaint naming 22 defendants. An October 1995 letter from the appellant's attorney indicated that the defendants were named to preserve legal rights while determination continued of the brand names and manufacturers of products to which the veteran may have been exposed. The complaint declared that the veteran "was, for years, an asbestos plant worker employed at the [redacted], and in the course of his duties was exposed to asbestos materials, which exposure directly and proximately caused him to develop a disease known as lung cancer and other industrial dust diseases caused by breathing defendants' asbestos-containing products." Documents of record reveal the total of the appellant's settlements with certain of the defendants as in excess of $100,000.00 net of attorney fees and costs. The appellant stated in April 1996 that her civil suit had reached settlements with companies that made and sold asbestos to the U.S. Government to go in Navy ships. In a hearing before the undersigned in April 1998, she testified that, as a member of a construction battalion, the veteran performed pipe fitting duties and worked as a pipe fitter and steam fitter, and also worked with asbestos products as a roofer and as a longshoreman. She reported that she married the veteran in 1960. He reported his employment history as working for a furniture company, in insurance, and then in a DuPont nylon plant. A December 1996 statement from DuPont Nylon confirmed the veteran's employment from November 1967 to September 1972 as a manufacturing operator. DuPont did not comment on asbestos exposure, reporting that he resigned for personal reasons. An August 1991 report from Tuomey Hospital of hospitalization for major depression revealed that he left work in 1972 for psychiatric reasons. Determination of service connection requires consideration of places, types, and circumstances of service. 38 C.F.R. § 3.301(a) (2001). The veteran's service personnel records reveal he was not a veteran of combat, thus no presumption of credibility attaches to his reports of asbestos exposure in service, nor are they rebuttable only by "clear and convincing evidence to the contrary." 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (2001). The Navy provided ship histories showing that the veteran served on ships built during World War II. The Navy reported the several uses of asbestos in ships built then. Hence, the possibility exists of the veteran's exposure to asbestos aboard those ships. To that extent asbestos exposure would have been consistent with the place of his service. 38 C.F.R. § 3.301(a). The specific allegations of exposure during alleged activities do not comport with the veteran's grade, according to the same Navy office, and hence asbestos exposure was not consistent with his type and circumstances of service. Id. The Board infers from the Navy's specifications of the duties of the seaman grade and the statement that asbestos exposure for a seaman would probably have been minimal that the tasks listed for the seaman's grade did not include those tasks reported by the veteran and widely known to result in high levels of asbestos exposure. See VA Manual M21-1, Part VI, 7.21 b. If the veteran's grade included the duties the veteran reported, then the Navy could not reasonably have reported that because the veteran was a seaman, the probability of asbestos exposure was minimal. Although the Navy could not state the veteran was not exposed to asbestos, the statement of the Navy Medical Liaison Office weights the probability against more than minimal exposure. Taken together, the service record weighs against the credibility of the veteran's specific allegations of exposure. Even assuming that the veteran saw dust aboard ship or in buildings on land, that fact is not probative evidence of asbestos exposure. The veteran's November 1994 statement reveals pure speculation about asbestos exposure. Subsequent statements were more detailed and definite. The Board does not find them credible. The veteran's reports of exposure in service are impeached by the obvious omission from any report to VA of asbestos exposure while he "was, for years, an asbestos plant worker." The appellant's testimony in April 1998 indicated that she obtained her information about the veteran's alleged asbestos exposure in service from the veteran. Consequently, her testimony on that matter has the same degree of credibility as the veteran's statements. Significantly, for purposes of asserting civil liability, the alleged asbestos exposure leading "directly and proximately" to the veteran's death by lung cancer was during civilian employment. The civil complaint made no mention of exposure in the Navy. The appellant's April 1996 statement that she had won settlement from companies that supplied the Navy with asbestos products is not evidence of the veteran's exposure to asbestos in service, even if true that the settling companies supplied asbestos products to the Navy. Significantly, the evidence she submitted in February 2001 shows settlements from defendants named in the summons and complaint in her civil suit, which identified only post- service occupational exposure to asbestos. The "principal or contributory" cause of the veteran's death, 38 C.F.R. § 3.312 (2001), cannot have been asbestos exposure in service while the "direct and proximate" cause, Civil Complaint para. 3, was simultaneously asbestos exposure in post-service employment. The two physicians' statements are dispositive only of the medical question whether the veteran's fatal lung cancer was asbestos related. They are informative about the source of the exposure only to the extent that the exposure can be inferred to be one or both of the sources reported to the physicians. Whereas the record manifestly reveals that neither the veteran nor the appellant was forthcoming about the history of exposure, any inference to be drawn that the cancer resulted from the exposures reported is tainted. The Board will not, because of that taint, find the medical opinions to be evidence of asbestos exposure in service. Rather, the inconsistency between the veteran's and the appellant's factual assertions of historical exposure to asbestos render them not credible. See Madden v. Gober, 125 F.3d 1477 (weighing the overall quality and credibility of evidence is inherently within the Board's obligation to find facts in the cases before it). In sum, the preponderance of the evidence is against finding the veteran's asbestos-related lung cancer resulted from asbestos exposure in service. Consequently, the preponderance of evidence weighs against finding disease or injury incurred in or aggravated by service was either the principal or a contributory cause of death. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R. § 3.312 (2001). Finally, the Board cannot give the appellant the benefit of the doubt in this case, as the benefit of the doubt is given only where the evidence for and against a material question in a claim is approximately balanced. 38 U.S.C.A. § 5107 (West Supp. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where the preponderance of the evidence is against a claim, the benefit of the doubt rule does not apply. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for the cause of the veteran's death is denied. 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.