Citation Nr: 0335476 Decision Date: 12/17/03 Archive Date: 12/24/03 DOCKET NO. 02-18 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from January 1969 to January 1971, and was discharged under honourable conditions. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in November 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that the RO originally described the issue in this case as one of entitlement to service connection for PTSD. It was, in this way, appealed to the Board. Yet, the Nashville, Tennessee RO previously denied the claim for entitlement to service connection for PTSD in a November 1999 rating decision. The veteran did not appeal this decision. The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted, it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). FINDINGS OF FACT 1. The RO denied entitlement to service connection for PTSD in a November 1999 rating decision. Notice was given the veteran by letter dated in the same month. He did not appeal this decision. 2. The additional evidence received since the November 1999 decision bears directly and substantially upon the specific matter under consideration and is so significant that it must be considered in order to decide fairly the merits of the claim for entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The November 1999 rating decision denying entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302(a) (2003). 2. Evidence submitted to reopen the claim of entitlement to service connection for PTSD is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5100 et. seq., 5108 (West 2002); 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION There was a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date, such as the one in the present case. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board observes that the VCAA appears to have left intact the requirement that a claimant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the Act shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C.A. § 5103A(f) (West 2002). The Board also acknowledges that the implementing regulations modify the definition of new and material evidence and provide for assistance to a claimant on claims to reopen. 38 C.F.R. §§ 3.156(a), 3.159(c). However, the regulatory provisions affecting the adjudication of claims to reopen a finally decided claim are applicable only to claims received on or after August 29, 2001. Because the veteran's request to reopen the previously denied claim of service connection PTSD was received prior to that date (in a September 2000 statement proffered by the veteran's representative), those regulatory provisions do not apply. The Board is granting the veteran's claim to reopen the previously denied claim for service connection for PTSD. No additional evidence is required to make a determination in this case and, hence, any failure to comply with VCAA requirements as to this issue would not be prejudicial to the veteran. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Bernard v. Brown, 4 Vet. App. 384 (1993). In a November 1999 decision, the RO denied the veteran's claim seeking entitlement to service connection for PTSD. In making this determination, the RO observed that while VA treatment records and the report of a VA examination indicated that he was diagnosed with PTSD, the stressors had not been verified. The medical evidence reflected stressors relating to combat, but available service personnel records did not confirm the veteran's participation in combat. The veteran himself declined to respond to requests for information giving specific information about his stressors so that they could be verified. Hence, the RO concluded that the evidence then of record did not support a finding of PTSD that was the result of verified stressors related to active service. The veteran did not appeal the November 1999 RO decision. The November 1999 RO decision thus became final. Prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302(a) (2003). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). When determining whether the evidence is new and material, VA must determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002); and if the claim is reopened, the VA must determine whether VA's duty to assist has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Specifically, under 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001), new and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. The Board notes that the regulations have been amended to define "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. Under the amended regulations, if the evidence is new and material, the question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). However, as previously pointed out, these regulations are effective prospectively for claims filed on or after August 29, 2001, and are therefore not applicable in this case as the veteran filed his claim to reopen the previously denied decision in September 2000. In the instant case, the Board finds that evidence submitted since the November 1999 decision provides a sufficient basis to reopen the previously denied claim. This evidence includes additional VA medical records dated in September- October 1998, lay statements proffered by the veteran's son in November 2001 and by the son's friend in December 2002, and statements submitted by the veteran identifying his stressors, submitted in July and September 2001, and in May 2002. The VA treatment records are nurses' notes and records of psychological assessment during the veteran's inpatient treatment that were not of record or considered in the November 1999 rating decision. In addition, the new evidence includes a statement from Steven M. Silver, Ph.D., Director, PTSD Program, and VA Medical Center in Coatesville, PA, also not of record at the time of the November 1999 rating decision. Both the psychological assessment notes and Dr. Silver's statement relate the veteran's PTSD to combat stressors the veteran experienced during his active service. These entries also reflect details of the veteran's service, such as his assertion that he served as an infantryman and truck driver, in addition to as an auto mechanic. The lay statements describe observations of the veteran's continuing deteriorating condition, including his neglect of self, tendency to isolate, and tendency to drink, an activity he has identified as self-medicating. The veteran's own statements give specific information about his stressors that now allow them to be verified. In addition, the veteran identified a new stressor that has not been considered. Specifically, he identified a friend who he reported had died as a result of a grenade explosion near an enlisted man's club, and gave the time frame of the explosion as approximately a month prior to his incarceration. He also reported that he was raped while incarcerated. Service personnel records show that the veteran was incarcerated while on active duty from February through April 1970. He was still in Vietnam and affiliated with H&S Company Maintenance Battalion, 1st FSR/FLC FMFPac during this time. The record now contains details about specific stressful events, and the veteran's averred duties during active service in Vietnam that will allow for verification. In addition, the newly acquired medical evidence clearly finds a diagnosis of PTSD that is linked to experiences the veteran encountered during his active service in Vietnam. Lay statements testify to the veteran's continuing symptomatology. Hence, this evidence is significant enough that it must be considered in order to fairly decide the merits of the claim. Thus, the Board finds that evidence submitted since the November 1999 RO decision provides a basis to reopen this claim. However, the evidentiary record lacks verification of the veteran's service in combat and, in the alternative, verification of the averred inservice stressors. Moreover, the Board notes that the veteran has averred that he was raped while incarcerated. As noted above, available service personnel records reflect that he was, in fact, incarcerated while in Vietnam. However, the claim has not been developed as one involving personal assault (see M21-1, Part III, 5.14(c)(5)). In addition, the record is bereft of current medical records of treatment the veteran reported receiving for his PTSD. Finally, the Board notes that the RO has not obtained the veteran's entire service personnel file. This must be obtained. Hence, the Board finds that further development is required to fairly adjudicate this claim. Accordingly, the claim is reopened and the issue for adjudication now before the Board is entitlement to service connection for PTSD. However, as indicated above, the Board finds that remand to the agency of original jurisdiction for additional development is required as to this issue. The issue of entitlement to service connection for PTSD, will be the subject of a later decision. ORDER The previously denied claim for entitlement to service connection for PTSD is reopened. To that extent only, the claim is granted. REMAND As noted above, the Board has reopened the previously denied claim for service connection for PTSD. The Board has reviewed the records and finds that additional development is necessary before appellate action may be completed. First, the record reflects that the veteran is receiving treatment for his PTSD from the Vineland Veteran's Center in Vineland, New Jersey, and from a Dr. Willis at the VAMC in Coatesville, Pennsylvania, and that he has been medically retired from employment. These records must be obtained, and the veteran's diagnosis must be clarified. Second, the veteran has offered statements concerning his averred stressors, including the death of a friend, details about his participation in combat, and that he was raped while incarcerated. In addition, available service personnel records reflect that the veteran was incarcerated for approximately 2 and 1/2 months while on active service in Vietnam. The RO has not obtained the veteran's entire service personnel record, nor has it had an opportunity to verify these additional inservice details. Furthermore, the RO has not had an opportunity to fully develop this claim in accordance with M21-1, Part III, 5.14(c)(5). This must be done. The Board notes that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Disabled Veterans of America v. Secretary of Veterans Affairs (DAV v. Sec'y of VA), 327 F.3d 1339 (Fed. Cir. 2003) invalidated the Board's ability to cure VCAA deficiencies. Therefore a remand is required in this appeal so that additional development may be undertaken in order to fulfill the Department's duty to assist the veteran with his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2003). In addition, in a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs (PVA v. Sec'y of VA), 345 F.3d 1334 (Fed. Cir. Sept. 22, 2003), the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C. § 5103(b)(1). The Court made a conclusion similar to the one reached in DAV v. Sec'y of VA. The Federal Circuit found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, since this case is being remanded for additional development or to cure a procedural defect, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice. To ensure that the VA has met its duty to assist and to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following actions: 1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent (including all provisions under 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 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)); as well as the holdings in Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Charles v. Principi, 16 Vet. App. 370 (2002)). The claims file must include documentation that there has been compliance with the VA's redefined duties to notify and assist a claimant as set forth in the VCAA and as specifically affecting the issues on appeal. 2. The RO should request that the veteran identify all VA and non-VA health care providers who have treated him for his claimed PTSD. The RO should procure duly executed authorization for the release of private medical records. 3. The RO should then obtain the veteran's medical records from all identified health care providers for treatment accorded him for his claimed PTSD. The RO should request inpatient and outpatient records, to include any and all mental hygiene records, including any and all copies of group and individual therapy. In particular, the RO should request any and all treatment records not already of record from the VAMCs in Vineland and Newark, New Jersey, and Coatesville, Pennsylvania. In addition, the RO should obtain any and all treatment records from the Vineland Veterans Center and Newcome Hospital in Vineland, New Jersey. 4. The RO should send the veteran a letter asking him to identify the office and address of Kimble Glass Company, or any other employer from which he is medically retired, and to give authorization for the release of private medical and employment records. 5. The RO should then request from Kimball Glass Company, or other employer as the veteran identifies, the medical and employment records upon which it was determined that the veteran be medically retired. 6. The RO should obtain any additional service medical records, including any and all medical records and mental hygiene records. In addition, the RO should make specific attempts to obtain the veteran's entire service personnel record, including any and all evaluation reports, proceedings of disciplinary actions, and prison records. The RO is further requested to make a specific attempt to obtain any and all hospital records-including any and all mental hygiene records-of treatment accorded the veteran ? while incarcerated at the III MAF Brigg associated with H&S Company Maintenance Battalion, 1st FSR/FLC FMFPac from February to April 1970 ? stationed at Marine Corps Base, Camp Lejeune, from April 1969 to August 1969 ? stationed at Marine Corps Base, Camp Pendleton, from September 1969 to November 1969, and in January 1971. 7. If the service medical or personnel records, medical records, mental hygiene records, or hospital records are unavailable, the RO should use alternative sources to obtain such records, using the information of record and any additional information the veteran may provide. The RO should consider special follow-up by its military records specialist and/or referral of the case for a formal finding on the unavailability of the service medical or service personnel records. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part III, chapter 4, paras. 4.28 and 4.29. If necessary, the RO should request that the veteran augment the information that he has already provided. 8. The RO should send the veteran a development letter asking him to give as comprehensive a statement as possible regarding the stressors he experienced during his active duty service. Please remind the veteran that it is necessary to give as specific and detailed information about the persons, places, and events involved as possible, including as accurate dates as possible, so as to enable verification of the identified stressors. 9. Offer the veteran an opportunity to procure "buddy statements" from service members who may have witnessed the events he identifies as his stressors or his behavior, overall, during this time. In addition, please explain that he may also obtain statements from individuals including friends or family members to whom he may have confided these events or who may have witnessed changes in his behavior either during his active service or immediately following his discharge from active service. 10. Whether or not the veteran responds to the request to identify his stressors, the RO should make every attempt to verify the veteran's averred inservice stressors, including appropriate development for instances of personal assault. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part III, 5.14(c)(5). The stressors the RO should seek to verify include, but are not limited to the following: ? The veteran's participation in or exposure to combat as an infantryman, automechanic, or truck driver when assigned to o H&S Company Maintenance Battalion, 1st FSR/FLC FMFPac, from November 1969 to October 1970 o Truck Company, H&S Battalion (Rein), 1st FSR/FIC, from October 1970 to January 1971 ? The death of his friend, [redacted] (spelling unverified), and injury of others at an enlisted club when a grenade was detonated during approximately December 1969 to February 1970 ? His assault and rape during incarceration at the III MAF Brig associated with H&S Company Maintenance Battalion, 1st FSR/FLC FMFPac, during the approximate time period from February to March 1970 In addition, the RO should obtain any and all unit reports, morning reports, lessons learned and operating reports for the H&S Company Maintenance Battalion, 1st FSR/FLC FMFPac for the following time periods: ? January to March 1970 ? April through June 1970 ? July through September 1970 ? October through December 1970 And for Truck Company, H&S Battalion (Rein), 1st FSR/FIC for the time periods: ? October through December 1970 ? January through March 1971 The RO should complete any and all follow-up actions necessary as directed by the NPRC or the service department. 11. When the above development has been completed, the RO should make arrangements to afford the veteran a VA psychiatric examination to determine the nature, extent, and etiology of any manifested neuropsychiatric disability, to include PTSD. All indicated tests and studies should be performed. If other examinations by specialists are indicated, they should be conducted. The claims folder, including all newly obtained evidence, must be sent to the examiner(s) for review. The examiner(s) should address the following matters. ? Summarize the medical history, including the onset and course, of any neuropsychiatric disorder, to include PTSD. ? Describe any current symptoms and manifestations attributed to any neuropsychiatric symptoms, to include PTSD. ? Complete any diagnostic and clinical tests required and provide diagnoses for all neuropsychiatric symptoms identified. ? Provide an opinion as to the date of onset and etiology for any currently manifested neuropsychiatric disabilities identified. 1. In particular, the examiners are requested to provide an opinion as to whether it is at least as likely as not that any diagnosed PTSD is the result of stressors the veteran underwent during his active service. 2. The examiner is requested to clearly record and make part of the report any and all stressors the veteran identifies, and to identify which, if any, are the cause of his PTSD. 12. After receipt of any and all newly acquired evidence, the RO should again review the veteran's claim for service connection for PTSD. If the decision remains in any way adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and with a reasonable period of time within which to respond. The case should thereafter be returned to the Board for further review, as appropriate. The veteran need take no action until he is so informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is reminded that it is his responsibility to appear for any and all scheduled examinations and that failure to do so could result in the denial of his claim. 38 C.F.R. § 3.655 (2003). The Board intimates no opinion as to the ultimate outcome of this case. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. ______________________________________________ A. BRYANT 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