Citation Nr: 0209271 Decision Date: 08/07/02 Archive Date: 08/12/02 DOCKET NO. 94-00 015A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial compensable evaluation for infectious hepatitis, type C. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from June 1968 to June 1973. This case comes before the Board of Veterans' Appeals (the Board) on appeal from January 1993 and January 1997 rating decisions of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). In the January 1993 rating decision, the RO granted service connection for infectious hepatitis, type C, and assigned a noncompensable evaluation. In the January 1997 rating decision, the RO denied reopening the claim for service connection for post- traumatic stress disorder. In December 1997, the veteran presented oral testimony before a Hearing Officer at the RO; a transcript of which has been associated with the claims file. FINDINGS OF FACT 1. Infectious hepatitis, type C, is currently healed and nonsymptomatic. 2. The RO denied service connection for post-traumatic stress disorder in January 1993, and the veteran did not appeal this decision as to this claim within one year of the decision. 3. The veteran has brought forth competent evidence of a diagnosis of post-traumatic stress disorder, which must be considered in order to fairly decide the merits of the claim. 4. The veteran does not have post-traumatic stress disorder based upon a verified stressor. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for infectious hepatitis, type C, have not been met. 38 U.S.C.A. §§ 1151, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.321(b), 4.114, Diagnostic Code 7345 (2001). 2. The January 1993 rating decision denying service connection for post-traumatic stress disorder is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (2001). 3. Evidence submitted to reopen the claim of entitlement to service connection for post-traumatic stress disorder is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2001). 4. Post-traumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.304(f) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist VA has issued final rules to amend adjudication regulations to implement the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). 66 Fed. Reg. 45,620 (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 intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. The Board finds that VA has met its duty to notify and assist in the veteran's case. A review of the record discloses that the veteran's service medical records have been requested and received by the RO, and such records appear to be intact. Additionally, in the January 1993 and January 1997 rating decisions, the November 1993 and April 1997 statements of the case, and the April 1997, April 1998, May 1998, February 1999, and February 2001 supplemental statements of the case, the RO informed the veteran of the evidence necessary to establish a higher evaluation for infectious hepatitis, type C, and of the evidence necessary to establish service connection for post-traumatic stress disorder. The Board notes that the RO initially denied the veteran's claim for post-traumatic stress disorder by stating that he had not submitted new and material evidence. The RO subsequently determined that the veteran had submitted new and material evidence and reopened the claim and adjudicated it on the merits. In the November 1993 and April 1997 statements of the case, and the April 1998 supplemental statement of the case, the RO also provided the veteran with the relevant regulations that applied to his claims. Correspondence copies of these determinations were mailed to the veteran's accredited representative at the respective times, Veterans of Foreign Wars of the United States and the Disabled American Veterans (the veteran is currently represented by the Disabled American Veterans). These determinations were not returned by the United States Postal Service as undeliverable, and thus the veteran and his representative are presumed to have received these notifications. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992) (discussing that the presumption of regularity of the administrative process applies to notices mailed by the VA)). Additionally, the veteran has stated that he has received VA treatment for both of these disabilities. The record reflects that the RO obtained the VA treatment records, dated from 1992 to 2000 and associated them with the claims file. The veteran has submitted private medical records, and the RO also obtained relevant private medical records that the veteran had indicated existed, which pertained to the veteran's claims. The veteran had indicated he had received treatment at the medical center at the University of California, Davis. The RO requested those records. The University of California wrote to VA and informed it that it would need to submit the cost of copying the records prior to it sending them. In a statement received in August 1997, the veteran stated that while he was treated at the University of California, Davis, it was only once and did not relate to treatment for post-traumatic stress disorder. Rather, he stated that it was a short meeting with a physician, who educated him on hepatitis. He stated that he was not examined. Thus, the Board finds that VA need not obtain that one record. Finally, in accordance with its duty to assist, the RO had the veteran undergo VA examinations related to his claims. The Board notes that the veteran had an RO hearing in December 1997. In April 1998, the Hearing Officer issued a supplemental statement of the case, wherein he continued the denial of service connection for post-traumatic stress disorder and continued the noncompensable evaluation for infectious hepatitis, type C. In May 1998, the veteran submitted a VA Form 9, Appeal to the Board of Veterans' Appeals. Next to the questions where it asked him what kind of hearing he wanted, he stated, "See attached VA Form 21- 4138." The attached form was typed and indicated that the veteran wanted a hearing. In July 1998, the veteran's representative asked him whether he wanted a hearing for his claim for an increased evaluation for hepatitis or his claim for service connection for post-traumatic stress disorder or both. The representative stated that he would await the veteran's reply. The record reflects that no reply was made. The Board finds that another clarification as to the subject of the RO hearing is not needed. The veteran had a hearing in December 1997. In July 1998, less than one year after his hearing, he was asked to clarify the subject of his subsequent hearing, and he chose to ignore it. The Board finds that to request another clarification would be a waste of government resources. Thus, the Board has determined that there is no hearing request pending at this time. The Board has reviewed the facts of this case in light of the new VCAA regulations. As discussed above, VA has made all reasonable efforts to assist the veteran in the development of his claims and has notified him of the information and evidence necessary to substantiate his claims. Consequently, the case need not be referred to the veteran or his representative for further argument as the Board's consideration of the new regulations in the first instance does not prejudice the veteran and the changes articulated in the new legislation are less stringent. See generally Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992). II. Infectious Hepatitis, Type C Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2001). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran is contesting the disability evaluation that was assigned following the grant of service connection for infectious hepatitis, type C. This matter therefore is to be distinguished from one in which a claim for an increased rating of a disability has been filed after a grant of service connection. The United States Court of Appeals for Veterans Claims (the Court) has observed that in the latter instance, evidence of the present level of the disability is of primary concern, Fenderson v. West, 12 Vet. App. 119, 126 (1999) (citing Francisco v. Brown, 7 Vet. App. 55 (1994)), and that as to the original assignment of a disability evaluation, VA must address all evidence that was of record from the date the filing of the claim on which service connection was granted (or from other applicable effective date). See Fenderson, 12 Vet. App. at 126-127. Accordingly, the evidence pertaining to an original evaluation might require the issuance of separate, or "staged," evaluations of the disability based on the facts shown to exist during the separate periods of time. Id. Infectious hepatitis, which is healed and nonsymptomatic warrants a noncompensable evaluation. 38 C.F.R. § 4.114, Diagnostic Code 7345. Infectious hepatitis with demonstrable liver damage with mild gastrointestinal disturbance warrants a 10 percent evaluation. Id. When there is minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures, a 30 percent evaluation is warranted. Id. With moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression, a 60 percent evaluation is warranted. Id. With marked liver damage manifest by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy, a 100 percent evaluation is warranted. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After having reviewed the evidence, the Board concludes that the preponderance of the evidence is against an evaluation in excess of 0 percent. In December 1992, denied a history of abnormal liver function, weight loss, chronic fever, and night sweats. The veteran stated that he had a liver biopsy done, which showed mild fatty infiltration. The examiner entered a diagnosis of history of hepatitis C. In February 1998, the veteran reported that he had no symptoms from his liver. The examiner stated that the physical examination was limited to systems affected by the liver. The findings were negative. The examiner noted that he had reviewed the laboratory testings from 1992 to the present time in relation to the veteran's liver function, which had shown normal findings. He entered a diagnosis of status post hepatitis B and C with no evidence of chronic active hepatitis or chronic persistent hepatitis. The Board finds that the above-described findings show that the service-connected infectious hepatitis, type C, is no more than 0 percent disabling. See 38 C.F.R. § 4.114, Diagnostic Code 7345. The VA examiner who conducted the examination in 1998 stated that the veteran had no evidence of active hepatitis. There have been no clinical findings of any liver damage or active hepatitis, to include any symptoms. The Board has determined that the preponderance of the evidence is against an evaluation in excess of 0 percent. The Board must now consider whether an evaluation in excess of 0 percent is warranted and finds that it is not. The evidence of record has not shown that the veteran has demonstrable liver damage with mild gastrointestinal disturbance to warrant a 10 percent evaluation. At the time of the 1992 and 1998 VA examinations, the veteran denied any symptoms related to his liver. However, in the veteran's VA Form 9, submitted in January 1994, he stated that he lied at the time of the 1992 examination, when he denied fever, fatigue, and chills because he was worried that it could affect his job. The Board finds that the veteran's report of symptoms at the time of the examinations to be more probative of his symptoms than his allegation in the VA Form 9. The laboratory findings were reviewed by the examiner in February 1998, which included findings from 1992 to 1998, and he determined that the findings related to the veteran's liver were normal. When this finding is weighed against the veteran's allegations, the Board finds that a medical professional's opinion is more probative than the veteran's subjective complaints, particularly when the subjective complaints are contradictory to his report of medical history at the times of his examination. Thus, the veteran's infectious hepatitis, type C, is no more than 0 percent disabling. The veteran is competent to report his symptoms; however, his statements do not serve to warrant an evaluation in excess of 0 percent for infectious hepatitis, type C. To the extent that the veteran has asserted that he warrants a compensable evaluation, the medical findings do not support an increased evaluation. The Board attaches far greater probative weight to the clinical findings of skilled, unbiased professionals than to the veteran's statements, even if sworn, in support of a claim for monetary benefits. To this extent, the preponderance of the evidence is against his claim, and there is no doubt to be resolved. Gilbert, 1 Vet. App. at 55. Review of the record reveals that the RO has expressly considered referral of the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2001). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Under Secretary or Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). III. Post-Traumatic Stress Disorder The Board notes that the record reflects that the RO found that new and material evidence had been presented to reopen the claim for service connection for post-traumatic stress disorder, as the claim was adjudicated on its merits. While the Board agrees that new and material evidence has been presented, the issue of whether new and material evidence has been submitted to reopen a previously disallowed claim is a material issue. Before the Board may reopen such a claim, there must be a finding that new and material evidence has been presented. See 38 U.S.C.A. § 5108; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In addition, 38 U.S.C.A. § 7104 (West 1991 & Supp. 2001), requires that each decision of the Board include a "written statement of the Board's findings and conclusions, and the reasons and bases for those findings and conclusions, on all material issues of fact and law presented in the record." As such, the Board will herein conduct a brief discussion of the reasons and bases for its conclusion that new and material evidence has been presented, thereby reopening the claim for service connection for post- traumatic stress disorder. At the time of the January 1993 denial of service connection for post-traumatic stress disorder, the veteran had not brought forth competent evidence of a diagnosis of post- traumatic stress disorder. In the current appeal, the veteran has brought forth competent evidence of a current diagnosis of post-traumatic stress disorder. As such, the record now includes evidence indicating a diagnosis of and treatment for post-traumatic stress disorder, which was missing at the time of the 1993 decision, bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of a claim for service connection. See 38 C.F.R. § 3.156(a). Therefore, the Board finds that the additional evidence submitted since January 1993 rating decision constitutes new and material evidence which is sufficient to reopen the claim for service connection for post-traumatic stress disorder, and the claim is reopened. The Board notes that the veteran is not prejudiced by this determination, as the RO adjudicated the claim on the merits in supplemental statements of the case. As stated above, the veteran has been provided with the evidence necessary to substantiate his claim for service connection for post- traumatic stress disorder on the merits. Additionally, the veteran's arguments have been based on his asserting that he has post-traumatic stress disorder, which is related to service. Thus, the veteran has been provided with the opportunity to argue his case on the merits. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2001). While this appeal was pending, the applicable regulations regarding service connection for post-traumatic stress disorder, 38 C.F.R. § 3.304(f), were amended on June 18, 1999, effective March 7, 1997. See 64 Fed. Reg. 32807-32808 (June 18, 1999) (to be codified at 38 C.F.R. § 3.304(f) (1999)). The amended 38 C.F.R. § 3.304(f) states that, if the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to this combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the veteran's service, the veteran's testimony alone may establish the occurrence of the claimed inservice stressor. Service connection for post-traumatic stress disorder requires: (1) medical evidence diagnosing post-traumatic stress disorder, (2) medical evidence establishing a link between current symptoms and an inservice stressor, and (3) credible supporting evidence that the claimed inservice stressor occurred. See 64 Fed. Reg. 32807-32808. With respect to the first element (a diagnosis of post- traumatic stress disorder), the United States Court of Appeals for Veterans Claims (the Court) has held that "a clear (that is, unequivocal) post-traumatic stress disorder diagnosis by a mental-health professional must be presumed . . . to have been made in accordance with the applicable [Diagnostic and Statistical Manual of Mental Disorders (DSM)] criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor." Cohen v. Brown, 10 Vet. App. 128, 139 (1997). Moreover, the Court concluded that "under the DSM-IV, the mental illness of post-traumatic stress disorder would be treated the same as a physical illness for purposes of VA disability compensation in terms of predisposition toward development of that condition." Id. at 141. If the "claimed stressor is not combat related, a veteran's lay testimony regarding inservice stressors is insufficient to establish the occurrence of the stressor and must be corroborated by 'credible supporting evidence.'" Cohen, 10 Vet. App. at 142 (citing Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Doran v. Brown, 6 Vet. App. 283 (1994)). Instead, the record must contain evidence which corroborates his testimony as to the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); see also VA ADJUDICATION PROCEDURE MANUAL M21-1, Part VI, 11.38 (Aug. 26, 1996). Regarding non-combat stressors, the Court has held that "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an inservice stressor consist solely of after-the-fact medical nexus evidence. See Cohen, 10 Vet. App. 128; Moreau, 9 Vet. App. 389; Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The VA ADJUDICATION MANUAL M21-1 (M21-1) provides that the required "credible supporting evidence" of a non-combat stressor "may be obtained from" service records or "other sources." See M21-1, part VI, formerly 7.46. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for post-traumatic stress disorder. The reasons follow. The Board will concede that a diagnosis of post-traumatic stress disorder has been entered based upon the veteran's report of the inservice stressors. However, the veteran's claim fails because he has not brought forth evidence to corroborate his inservice stressors. The veteran's occupational specialty was that of an ammunition storage specialist. He did not receive any awards that would indicate that he engaged in combat. The veteran alleged various stressors since 1992, which stressors, as reported, have changed throughout the appeal process. When the veteran first reported his stressors in 1992, he stated that he was close to death on many occasions. He stated that he had to take the lives of others and watched many of his comrades killed. The veteran stated that one of the things that bothered him "more than anything" was seeing children zipped into body bags. He stated that he had a girlfriend while he was in Vietnam and when he went to see her one day, he found that she had been decapitated. At a December 1992 VA psychiatric evaluation report, the veteran stated that he was under pressure all the time because he was around ammunition and that he was concerned that a mortar or some type of shell would ignite the ammunition. He stated that as it turned out, there were no significant explosions. The examiner stated that the veteran reported that the only particularly traumatic event that he could recall was when he and a friend were leaving the commissary and that it blew up seconds after he and his fellow comrade left the store. The veteran stated that he saw a lot of dead bodies. In October 1996, the veteran reported that he was on guard duty one night and that the next morning, a sergeant came around waking up other men. He stated that when the sergeant attempted to wake up one man, that his head fell off because he had been decapitated. The veteran asserted that he killed 30 to 40 Viet Cong and 10 to 12 civilian Vietnamese children. He also reported that he had been stabbed by a Vietnamese person in the armpit while sitting outside of a brothel. The veteran stated that he then pulled out a gun and killed this person. He stated that he never told anyone this story, which is why he did not receive a Purple Heart. At the December 1997 RO hearing, the veteran told the story of being in a truck and a Vietnamese person coming over to him and attempting to steal his watch. He stated that the guy drove by and grabbed his watch and pulled his arm and that he pulled out his gun and shot him four times. He also told the story of when he was stabbed. The veteran stated that he was treated at a Vietnamese hospital for his stab wound. In February 1998, the veteran stated that he was wounded in Vietnam when a bullet ricocheted and hit him in the left leg. The RO attempted to verify these stressors by submitting them to the United States Army Service Center for Research of Unit Records (USASCRUR). None of the stressors that the veteran alleged could be verified. The USASCRUR had enclosed a unit history, which did not show that the veteran's unit had engaged in combat. The Board finds that the veteran's allegations of his various stressors are not credible. The veteran initially stated that he saw his girlfriend in a decapitated state. After he mentioned her in his 1992 statement, he never mentioned her again. He stated that he missed being blown up at a commissary by minutes. He later claimed that he was stabbed but did not tell anyone because he was outside of a brothel. The veteran stated that a fellow soldier had been decapitated. In February 1998, the veteran alleged that he had been hit with a bullet when it ricocheted. The veteran's varying stories as to what happened in Vietnam are not consistent. The veteran has attempted to explain why he varies his stories and it is because he has such difficulty remembering everything that happened while he was out there. The Board finds that the inconsistent statements are too varying for VA to believe his allegations, and the Board is reluctant to extend credibility to this argument. In support of the Board's finding, the USASCRUR was unable to verify any of the veteran's inservice stressors. The report from the USASCRUR does not show that the veteran's unit was exposed to combat. Thus, the veteran's allegations of all these inservice stressors are given little probative value. Regardless, the veteran has not brought forth any corroboration as to these inservice stressors, and the Board finds that the preponderance of the evidence is against a finding that such inservice stressors occurred. As stated above, a noncombat stressor must be supported by "credible supporting evidence." Here, the only evidence that supports the veteran's allegation of the inservice stressors are his statements and testimony, to include his reporting the history of the incident to examiners when being evaluated. The veteran's statements, by themselves, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an inservice stressor consist solely of after- the-fact medical nexus evidence. See Cohen, 10 Vet. App. 128; Moreau, 9 Vet. App. 389; Dizoglio, 9 Vet. App. at 166. While the Board has considered the doctrine of affording the veteran the benefit of the doubt with regard to the issue on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. See 38 C.F.R. § 3.102 (2001); Gilbert, 1 Vet. App. at 51. The Board does not dispute that the veteran has a psychiatric disorder; however, the record does not support a finding that the veteran has post-traumatic stress disorder attributable to his military service, or any incident therein. As stated above, the evidence of record does not verify that the veteran engaged in combat, and there is no credible supporting evidence that his alleged combat and non-combat stressors occurred, apart from the veteran's lay statements and testimony. Therefore, the veteran's claim for service connection for post-traumatic stress disorder, fails on the bases that all of the elements required for a such a showing under 38 C.F.R. § 3.304(f) have not been met. Thus, the preponderance of the evidence is against entitlement to service connection for post-traumatic stress disorder. ORDER Entitlement to an initial compensable evaluation for infectious hepatitis, type C, is denied. Service connection for post-traumatic stress disorder is denied. JEFF MARTIN 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.