Citation Nr: 0405395 Decision Date: 02/26/04 Archive Date: 03/05/04 DOCKET NO. 95-09 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether clear and unmistakable error (CUE) was shown in an administrative action dated October 10, 1975. 2. Whether CUE was shown in an administrative action dated February 5, 1980. 3. Entitlement to an effective date earlier than December 23, 1991 for the grant of service connection for post- traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The veteran served on active duty from February 1964 to January 1972. This case arose from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Briefly, the record reflects that the veteran's claim of entitlement to service connection for PTSD was initially granted in a March 1993 RO rating decision, at which time a 30 percent disability evaluation was granted, effective from December 23, 1992, the date of receipt of the veteran's claim for such benefits. By rating decision in August 1997, a 100 percent evaluation for PTSD was assigned, also effective from December 23, 1992. The veteran's claim of entitlement to an earlier effective date for the grant of service connection for PTSD was addressed in a February 1998 rating decision, at which time it was determined that an effective date of December 23, 1991 was warranted under the provisions of 38 C.F.R. § 3.114(a)(3). This section provides a basis to award an effective date one year retroactive to the date of claim where, as in this case, a liberalizing change in the law had occurred and an original or reopened claim was reviewed on the initiative of the claimant more than one year after the effective date of the liberalizing law or VA issue. In March 1998, the veteran filed a Notice of Disagreement with the assignment of the effective date of December 23, 1991. A Statement of the Case was issued in May 1998 and a substantive appeal was filed in June 1998. This case was previously before the Board of Veterans' Appeals (the Board) in March 1999 and again in January 2003. Each time, the case was remanded for additional development. Information regarding the prior procedural background of the case is set forth in those remands, and, to the extent necessary to explain the Board's reasoning, in the factual background section below. The Board's January 2003 remand in essence required the RO to adjudicate the matter of claimed CUE in an October 1975 VA administrative action and to readjudicate the other two issues then on appeal, the matter of claimed CUE in a February 1980 VA administrative action and the claim of entitlement to an effective date earlier than December 23, 1991 for service connection for PTSD. The RO provided a statement of the case to the veteran in March 2003 as to the issue of CUE in the October 1975 administrative action, and the veteran perfected an appeal as to that issue with the filing of a substantive appeal in May 2003. The RO issued a supplemental statement of the case in March 2003 as to the other two issues, which had been in appellate status for a number of years. Previously-referred claims It is noted that the Board in its March 1999 remand advised the RO to address a reopened claim of entitlement to service connection for a back disorder and a claim alleging CUE in a January 1980 decision which denied service connection for a back disability. It does not appear that any action was taken by the RO with regard to these claims, and the veteran has not mentioned them for several years. These matters are not presently before the Board on appeal, and they are again referred to the RO for appropriate action. FINDINGS OF FACT 1. The October 1975 VA administrative action disallowing the veteran's claim for service connection for a "nervous disorder" due to his failure to prosecute the claim by submitting requested evidence was supported by the evidence then of record, and was consistent with the applicable law, regulations and VA Manual M21-1 provisions extant at that time. 2. The February 1980 VA administrative action disallowing the veteran's claim for service connection for a psychiatric condition due to his failure to prosecute by submitting requested evidence was supported by the evidence then of record, and was consistent with the applicable law, regulations and M21-1 manual provisions extant at that time. 3. The date of receipt of the veteran's claim of service connection for PTSD was December 23, 1992. In March 1993, service connection for PTSD was granted and assigned a 30 percent rating effective December 23, 1992, the date of receipt of the veteran's claim. In August 1997, a 100 percent rating for PTSD was assigned effective December 23, 1992. In February 1998, an earlier effective date for the award of service connection and a 100 percent rating for PTSD was granted effective December 23, 1991. 4. There is no evidence that could reasonably be interpreted as reflecting an intent to file a formal or informal claim of service connection for PTSD prior to December 23, 1991. CONCLUSIONS OF LAW 1. The October 1975 administrative action was not clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a) (2003). 2. The February 1980 administrative action was not clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a) (2003). 3. There is no legal basis to assign an effective date earlier than December 23, 1991 for the award of service connection for PTSD. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.155, 3.157, 3.400 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has been granted service connection for PTSD, effective December 23, 1991. He veteran is seeking an earlier effective date. He has alleged CUE in two VA administrative decisions, in October 1975 and in February 1980. In essence, the veteran contends that CUE was committed by the RO in the 1975 and 1980 administrative actions because he was not properly advised of these decisions, contrary to the law, regulations and VA M21-1 manual provisions in effect at the time of issuance of these actions. Specifically, he alleges that he did not receive any notice at all of the 1975 action and that he was not given notice of his appellate rights in connection with the 1980 action. Other more specific contentions will be set forth below. In the interest of clarity, the Board will provide a common factual background, and then discuss the impact of the Veterans Claims Assistance Act of 2000 (the VCAA) on this case. The Board will then separately address the issues on appeal. Factual and procedural background The veteran served on active duty in the United States Army from February 1964 to January 1972. He served in Vietnam and was awarded the Combat Infantryman Badge and Air Medal, among other decorations. In June 1975, the veteran filed an original claim for disability benefits (VA Form 21-526), at which time he requested service connection for a number of disorders, to include a "nervous disorder/NP" [neuropsychiatric] condition. His service medical records were obtained and associated with his claims file. The RO in Baltimore, Maryland sent the veteran a letter in July 1975 informing him that it would be necessary to for him submit additional evidence to show that his claimed disability had existed continuously since the time of his discharge from service. The RO further advised him that the best type of evidence would be statements from doctors who treated him after service discharge, showing dates of examination or treatment, findings, and diagnoses. The veteran also was advised that he could submit statements from other persons who would know of his condition and who would be able to give the date they first observed the condition. Finally, the RO advised the veteran in this letter that failure to submit the requested evidence within 60 days could result in the disallowance of his claim. The RO's July 1975 letter was sent to the veteran at his address of record at the time. [The address listed on the letter does not exactly match the address the veteran provided on his June 1975 application for benefits (the street, state and zip code all match, but the veteran indicated on his claim form that the city was "Catonsville" Maryland, while the RO's letter was sent to "Baltimore", Maryland), However, the veteran's DD Form 214 lists this same address as "Catonsville (Baltimore) Maryland 21229".] The letter was not returned by the Postal Service as undeliverable, and the veteran has stated that he received the letter; see his VA Form 9 dated October 23, 2002. The RO's letter was thus sent to the veteran's correct address of record in July 1975, and he in fact received it at that time. Because it was not shown that the veteran responded to the RO's letter of July 1975, the RO issued a VA Form 21-523 (Disallowance - Disability or Death Claim) on October 10, 1975. This disallowance indicated that his claim of June 1975 was being denied for "record purpose" for failure to furnish the requested evidence. Under the special instructions section of this form, it was further indicated that no letter would be sent to the veteran. It does not, in fact, appear that a letter notifying the veteran of the RO's October 1975 action was sent to the veteran. Thereafter, nothing further was heard from the veteran by VA with respect to a claim for benefits based on a psychiatric disorder until December 20, 1979, when the Los Angeles RO received a report from a private psychologist, Dr. R. R., Ph.D. In the report, Dr. R. provided an account of the veteran's treatment since he was first seen on August 28, 1979. Dr. R.R. stated that the veteran required "outpatient psychotherapy as a result of stresses incurred while serving in Vietnam . . . . It is recommended that he be given authorization to continue his psychotherapy at VA expense." In response to Dr. R.'s report, the RO sent the veteran a letter on February 5, 1980 advising him that "before we can consider authorizing psychotherapy at government expense", more conclusive evidence showing that the psychiatric illness he was being treated for under the care of Dr. R.R. either began in service or was aggravated therein, or evidence showing a record of treatment for a psychiatric disorder within two years after service, would be needed before VA could consider authorizing psychotherapy at government expense, and that until such evidence was received, "[u]nder existing laws and regulations, we [the RO] can take no further action on the matter discussed in Dr. [R's] letter." It is not shown by the record that the veteran responded to that letter. The next communication from the veteran received by VA was reflected in a statement filed in September 1980 with regard to a March 1979 back injury claim, which had been denied by the RO in January 1980. There appears to be no reference to a claim of entitlement to service connection for a psychiatric disability in the record until a statement from the veteran which was received at the San Diego RO on December 23, 1992. The veteran stated "I wish to reopen my disability claim and request the Department of Veterans Affairs to develop PTSD as a service-connected disability." Eventually, service connection for PTSD was established and a 100 percent rating was assigned, effective December 23, 1991. As explained in the Introduction, the December 23, 1991 date (one year prior to date of filing of the veteran's PTSD claim) was assigned in a February 1998 VA rating decision, based on the provisions of 38 C.F.R. § 3.114(a). The VCAA The Board has considered VA's duty to inform the veteran of the evidence needed to substantiate his claims and to assist him in obtaining the relevant evidence, as required under the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) [codified at 38 U.S.C.A. §§ 5103, 5103A (West 2002)]; 38 C.F.R. § 3.159 (2003). However, as will be explained below, the Board finds that to the extent any VCAA duties are legally applicable to the appeal of these claims, any duty to notify the veteran of the evidence needed to substantiate his claims or to assist him in developing the relevant evidence has been met. The United States Court of Appeals for Veterans Claims (the Court) has held that the provisions of the VCAA do not apply to a claim based on a previous decision having been the result of clear and unmistakable error. See Livesay v. Principi, 15 Vet. App. 165, 174 (2001) (en banc). The Court found that an attempt to obtain benefits based on an allegation of CUE "is fundamentally different from any other kind of action in the VA adjudicative process." Livesay, 15 Vet. App. at 178. As such, an allegation of CUE does not actually represent a "claim" but rather is a collateral attack on a final decision. The Board therefore finds that the provisions of the VCAA, and its implementing regulations, are not applicable to the adjudication of the issues on appeal of CUE in the October 1975 and February 1980 administrative actions. With respect to the issue of the veteran's more general claim of entitlement to an earlier effective date for service connection for PTSD, the Court has also held that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the instant case, the pertinent facts are not in substantial dispute; resolution of the veteran's appeal is dependent on interpretation of the statutes and regulations regarding the effective date of an award of service connection. The issue of whether he is entitled to earlier effective date for his PTSD is dependent upon whether a viable claim for service connection was filed prior to December 1991. That determination is dependent on the documents and evidence received by VA prior to the initiation of the veteran's current appeal. VA has no further duty, therefore, to notify him of the evidence needed to substantiate this claim, or to assist him in obtaining that evidence, in that no reasonable possibility exists that any further assistance would aid him in substantiating the effective date claim at issue on appeal before the Board at this time. See Dela Cruz, supra; see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001). In any event, the veteran has been provided with pertinent law and VA regulations in the statements of the case and supplemental statements of the case. In addition, over the course of this appeal the veteran has been accorded ample opportunity to present evidence and argument in support of his claims. It is evident from review of the veteran's communications to VA in connection with this appeal that he has demonstrated knowledge and awareness of the pertinent issues germane to the adjudication of his appeal. The Board believes that all appropriate actions have been taken based on its two remands. The issues of CUE in the 1975 and 1980 administrative actions were fully developed and adjudicated by the RO in accord with the Board's remand instructions of January 2003. In this regard, it is noted that while the issue of CUE in the 1980 decision had been in appellate status since 1998, the veteran subsequently perfected an appeal as to CUE in the 1975 decision with his Form 9 of May 2003 following adjudication of this issue by the RO in compliance with the aforementioned Board remand. As a result, both CUE claims are now before the Board. Under these circumstances, the Board can identify no further development that would avail the veteran or aid the Board's inquiry. Accordingly, the Board will move on to a decision. 1. Whether clear and unmistakable error (CUE) was shown in an administrative action dated October 10, 1975. Relevant Law and Regulations Service connection - in general Applicable law provides that service connection will be granted if it is shown that a veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered of disease contracted in the line of duty, in active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2003). The Board observes in passing that the substance of the law and regulations in effect at all times since the veteran's discharge from military service have essentially remained unchanged. CUE Previous determinations which are final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a) (2003). The Court has held that for there to be a valid claim of CUE either the correct facts, as they were known at the time, were not before the adjudicator or the legal provisions effective at the time were improperly applied; a mere difference of opinion in the outcome of the adjudication does not provide a basis to find that VA committed administrative error during the adjudication process. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Glynn v. Brown, 6 Vet. App. 523 (1994); Mason (Sangernetta) v. Brown, 8 Vet. App. 44 (1995); Crippen v. Brown, 9 Vet. App. 412 (1996) [viable CUE claim is premised on the RO's clear failure to consider certain highly probative evidence in the first instance versus asking that the Board reweigh or reevaluate the evidence reviewed by the RO in the prior final decision]. Moreover, when considering a claim of CUE, the determination must be made based on the record and the law in existence at the time of the prior, final decision. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) [quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)]; Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). The Court also has stated that CUE is "undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313-14. Furthermore, to raise a valid claim of CUE, the Court has held that an appellant must, with some degree of specificity, identify the alleged error and provide persuasive reasons why the result would have been different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993), en banc review denied, 6 Vet. App. 162 (1994); see also Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). As such, the alleged error must be of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen, 9 Vet. App. 412 (1996). Rather, to show that a CUE error occurred the evidence must show that the law was incorrectly applied to the facts, as they were known at the time and that, had the error not occurred, the decision would have been manifestly different. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Failure to fully develop evidence is not considered CUE. See Caffrey v. Brown, 6 Vet. App. 377 (1994) [breach of duty to assist cannot form basis for CUE claim because such breach creates only an incomplete rather than an incorrect record]. Analysis The veteran's contentions The veteran has challenged the October 1975 administrative decision on the basis of CUE as to the RO's failure to apply and follow its own procedural directives with regard to the disallowance of his original claim filed in June 1975 requesting service connection for a "nervous disorder" [meaning a psychiatric disability]. The veteran does not appear to dispute that he received the July 1975 letter from VA, and he does not deny that he did not respond to it. However, he points to the disallowance action in the file, the VA Form 21-523 dated October 10, 1975, and contends that it was CUE for the RO not to send him notification of such action at that time. It is uncontroverted that the RO did not in fact send him a letter in October 1975. He indicates that because he was not advised of the October 1975 decision, the RO was not in compliance with internal claims processing procedures set forth in VA's adjudication manual, M21-1, specifically, Part 1-4, Authorization Procedures, Paragraph 5.08(2). In essence, the veteran alleges that he was not accorded appropriate due process in that he was not provided notice of his right to representation and his right to appeal. Cf. 38 C.F.R. § 3.103 (2003). Based on these contentions, the veteran avers that the one- year period in which to file a notice of disagreement in response to this decision never began to run, and accordingly, his original claim of service connection for a psychiatric disorder, filed in June 1975, remains pending final adjudicative action. In addition, the veteran alleges CUE in the October 1975 RO action on the grounds that the RO had sufficient information to consider his claim based on the service medical records themselves - which denoted in several reports his complaints of trouble sleeping, depression, worrying, etc. He contends that his claim was improperly disallowed, as he put it, "for the convenience of VA without review of the evidence". Discussion The Board initially finds that the RO's administrative action of October 1975 is a final VA decision under the law and regulations in effect at that time, and therefore is subject to collateral attack based on CUE. See 38 C.F.R. § 3.105 (2003); cf. Best v. Brown, 10 Vet. App. 322 (1997) [veteran's claim of clear and unmistakable error dismissed because rating decision was not final]. The record reflects that the veteran's original claim of entitlement to service connection for a psychiatric disability was filed in June 1975. There appears to be no dispute that the RO thereupon sent the veteran a letter requesting additional evidence in July 1975 and he did not respond to it. The July 1975 letter to the veteran informed him that it would be necessary for him to submit additional evidence to show that his claimed for disabilities had existed continuously since the time of his discharge from service. The RO further advised the veteran that his failure to submit the requested evidence within 60 days could [the RO used the word "may"] result in the disallowance of his claim. The veteran's service connection claim was disallowed by the October 1975 administrative action. The VA Form 21-523 (Disallowance - Disability or Death Claim), which was created by the RO at that time indicated that the claim was being denied for "record purpose" due to his failure to furnish requested evidence. Under the special instructions section on this form, it was indicated that "no letter" would be sent to the veteran. There is no question that the veteran received the RO's July 1975 development letter. The veteran does not appear to contend otherwise, and he essentially conceded such receipt in his October 2002 substantive appeal. Further, there is no evidence of record that the veteran responded to that letter, and he himself does not appear to contend that he did. The evidence thus shows that the RO's July 1975 development letter, which informed him that he had sixty days in which to submit additional evidence and that his claim could be denied if he did not do so, was received by him and that he did not respond. The question thus arises as to what if any additional notification to the veteran was required in connection with the October 1975 disallowance. The Board has reviewed the applicable M21-1 manual provisions in effect at the time in light of these circumstances in order to determine what was the proper course of action for the RO to take. Pursuant to the M21-1 manual provisions in effect in October 1975, the RO could disallow a claim at expiration of the control period if the claimant failed to submit the required evidence. See M21-1, Chapter 16, Paras. 16.01 et seq. (Change 98, May 3, 1973 and Change 108, April 14, 1975). This action was called a "Record Purpose" disallowance and was generally used where there had been a failure to prosecute a claim. See id., Par. 16.06. Moreover, this action was processed on a VA Form 21-523 and did not require notification of the disallowance. Id. It is clear that the RO followed these procedures in denying the veteran's 1975 claim. As detailed above, upon giving him notice that he had 60 days to submit evidence as requested, and having failed to do so within that time, the RO issued the VA Form 21-523 in October 1975 disallowing the claim. The Form 21-523 which was prepared in October 1975 stated specifically that it was for "record purpose" upon failure to submit the requested evidence and that "no letter" would be sent, which the aforementioned manual provisions specifically allowed. Given these facts, the Board finds that the RO in 1975 rightly concluded that the veteran had effectively abandoned his claim and as a result, took action to issue a determination on this claim using the Paragraph 16.06 procedures set forth in the M21-1. With respect to the above, the Board notes that the veteran had cited to a M21-1 provision, Par. 5.08(2), which, in the absence of a more specific citation, appears to refer to Chapter 5 of the M21-1 dealing with providing notice to claimants in contested claims, which is not germane to the facts in this case. It appears that the veteran is contending that M21-1 required that he be provided with notice of the action. However, it is clear that under the M21-1 provisions discussed above, no notice to the veteran was required. Although the veteran is correct in his allegation that he did not receive notice of the October 1975 decision to disallow his claim, he was not legally entitled to such notice under the procedures employed by the RO in 1975 to process his claim. In effect, he was deemed to have abandoned his claim when he failed to respond with the control period of 60 days. The veteran was effectively informed of this action in the July 1975 letter from the RO. The M 21-1 provisions, in essence, acknowledged this a priori notification and indicated that no additional notification was required. Thus, the RO took appropriate action under the M21-1 to administratively disallow his claim without further notifying him. Accordingly, the Board finds that the M21-1 provisions in effect at the time support a finding that the RO was fully empowered to take the course of action resulting in the October 1975 action under the circumstances then presented. The Board notes in passing that the adjudication procedures set forth in the M21-1 manual in effect in 1975 were equivalent to VA regulations because they narrowly limited the administrative action the RO could take given the status of a claim and as such, were substantive rules with the force of law. See Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990) [manual provision has the force of law and narrowly limits administrative action if it prescribes what action must be taken in the initial levels of adjudication]. Having found that the RO properly adjudicated his claim in October 1975 under applicable M21-1 provisions, the Board finds further that VA regulations in force at that time also make clear that the October 1975 action constituted a "final" determination, notwithstanding the lack of specific notice of such to the veteran. See 38 C.F.R. §§ 3.104, 3.158 (1975). Section 3.104 stated that a decision of the RO "on which an action was predicated" will be final and binding upon all field offices of VA as to conclusions based on evidence on file at that time. In this case, the action upon which the RO's decision disallow the claim was predicated, namely the issuance of the Form 21-523 disallowance because the veteran failed to prosecute his claim, was a final determination because no further action or adjudication, including notice, was required under the applicable M21-1 provisions discussed above. Section 3.158 of the regulations provided authority for the RO denying a claim based on abandonment, which also contemplates termination of a claim based on failure to furnish requested evidence. The Board notes in passing that there is non-precedential case law from the Court which has recognized finality in RO administrative disallowances where the veteran-claimant asserted that he did not receive proper notice. See Baughman v. Principi, No. 02-1151, 2003 U. S. Vet. App. Claims LEXIS 711 (Sept. 9, 2003) and Compston v. Brown, No. 95-245, 1997 U. S. Vet. App. LEXIS 155 (Feb. 24, 1997). These cases are single judge memorandum decisions and thus have no precedential weight. The decisions may, however, be cited "for any persuasiveness or reasoning [they] contain." See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). The main contention of the veteran alleging CUE in the 1975 action centered on his allegation that he was not given proper notice of the RO's denial of his claim. As discussed above, the veteran was in fact given a priori notice in the July 1975 letter from the RO. He as clearly warned of the possibility of a denial if he did not respond to the July 1975 letter; he chose not to do so. Moreover, the RO clearly followed existing VA procedures, found in VA manual M 21-1, in the "record purpose" denial in October 1975. The RO's actions under these circumstances do not amount to CUE. The veteran also has made contentions to the effect that RO had sufficient information to consider his claim based on the service medical records themselves. Specifically, he argues that several service medical reports noted his complaints of trouble sleeping, depression, worrying, etc. He therefore contends that his claim was improperly disallowed "without review of the evidence". The evidence of record in 1975 included the service medical records referred to by the veteran. Those records include four reports of medical history completed by the veteran. Two of these reports, on enlistment in February 1964 and on separation in January 1972, include "yes" responses to questions involving frequent trouble sleeping, depression of excessive worry and nervous trouble. The veteran reported no such problems in June 1966 and in June 1970. However, there was no evidence of any psychiatric disability diagnosed during service. Nor was there any medical evidence of a psychiatric disability diagnosed thereafter. The RO's July 1975 letter was, in fact, an attempt to secure such information. The veteran did not cooperate with the RO's efforts, and the RO therefore deemed the claim to have been abandoned and did not adjudicate it on its merits. Nothing in this scenario amounts to CUE. In short, the RO in 1975 did not adjudicate the veteran's claim on its merits because there was insufficient evidence of record upon which to do so. There were, in fact, no post- service medical examination or treatment records in the file, and the RO's efforts to identify such records and develop the evidentiary record were thwarted by the veteran. The RO clearly evaluated the file and determined that it could not make an informed decision without further information supplied by the veteran. The RO's handling of the case under these circumstances hardly amounts to CUE. Moreover, to the extent that the RO can be said to have evaluated the evidence on the merits (as is indicated immediately above the Board does not believe that such is the case), allegations which amount to expressions of disagreement as to how the facts were then weighed or evaluated cannot form the basis of a valid claim of CUE. See Crippen, 9 Vet. App. at 421. Because evidence and information requested of the veteran by the RO pertaining to the claimed psychiatric disability was not provided, the evidence before the RO in October 1975 manifestly did not support entitlement to service connection. There was in fact no medical evidence of a current psychiatric disability. In view of the above, the Board finds that the October 1975 administrative action was not fatally flawed factually or legally at the time it was made, nor when viewed in light of the entire record as constituted at that time would a different conclusion be compelled. The veteran's allegations of error amount to disagreement as to how the evidence was weighed by the RO, which does not amount to a valid claim of CUE. Accordingly, the Board concludes that the October 1975 action was supported by the evidence then of record and was not clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a) (2003). In short, it is clear the RO had the authority to take the action it did in October 1975, based on the veteran's non- response to the July 1975 letter, which clearly advised him of potential consequences. Further, such action constituted a final RO determination. CUE has not been shown because of lack of specific notice of the October 1975 decision, nor has it been shown in the RO's refusal to adjudicate the claim on its merits in light of any evidence of a current disability. The veteran's CUE claim is therefore denied. 2. Whether CUE was shown in an administrative action dated February 5, 1980. Relevant law and regulations The law and regulations set forth above in connection with the first issue on appeal apply equally to this issue and will not be repeated. Claims A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2003). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2003). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran , it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155 (2003). Combat veterans In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2003). This law has been essentially unchanged for the period since the veteran's discharge form military service. Analysis The veteran's contentions With respect to CUE in the administrative decision of February 1980, the veteran alleges the RO failed to apply the appropriate law, regulations and M21-1 manual provisions (Part 1-6, Par. 7.03) pertaining to disabilities related to combat veterans, specifically the relaxed evidentiary standard for establishing service connection for a disability incurred in combat during service. In this regard, he alleges the RO knew from his service records on file at that time that he was a combat veteran. Further, the medical report dated in December 1979 from a private psychologist, Dr. R. R., Ph.D., clearly indicated Dr. R.R.'s opinion that the veteran's psychiatric disability was combat-related. The veteran concludes that the RO's failure to apply the relaxed evidentiary standard for combat veterans amounted to CUE. The veteran also believes the RO committed CUE by informing him by letter that notwithstanding Dr. R's report of December 1979, no further action would be taken ". . . until we receive more evidence from you." Essentially, the veteran believes the RO had sufficient evidence before it in February 1980 to not only proceed with a formal decision on his claim, but also to award service connection for a psychiatric disorder under 38 C.F.R. §§ 3.303(a) and 3.304(d). In this regard, he points out that section 3.303(a) states that determinations of service connection must be based on review of the entire evidence of record. He alleges the RO failed to do this in the 1980 decision and but for this error, the outcome of his claim would have changed, resulting in a grant of service connection for a nervous disorder based on the service medical records and the report of Dr. R. dated in December 1979. Further, the veteran alleges that the February 1980 administrative action failed to properly advise him of his right to appeal in violation of VA's procedures in effect at that time, and that such an error constitutes CUE. See Veteran's VA Form 9 dated October 23, 2002. Discussion The RO informed the veteran by letter dated in February 1980 that no further action on his claim would be taken unless he submitted "more conclusive evidence" in support of his claim. The veteran has challenged that action on the basis of CUE. The Board initially finds that the administrative action taken in February 1980 was a final determination of VA under section 3.104 of 38 C.F.R., subjecting that action to collateral attack on the basis of CUE. The RO appears to have written to the veteran in February 1980 upon receipt of Dr. R.'s letter of December 1979. The veteran believes that Dr. R.'s letter was sufficient to support a claim of service connection. Setting that matter aside for the moment, a review of the record demonstrates that it was unclear at the time that a claim of entitlement to service connection had been advanced. Dr. R.'s report clearly referred to a psychiatric disorder. However, there is no specific indication in the letter that the veteran intended to seek entitlement to service connection for a psychiatric disability based on this report, which made reference only to eligibility for psychiatric treatment at VA's expense. There is no concurrent claim for service connection on file, and the veteran does not appear to contend that such a claim was in fact filed. VA regulations in effect in 1979, which have remained essentially unchanged to the present, required that a claim for disability benefits be a "specific claim" in the form prescribed by VA in order for benefits to be paid. See 38 C.F.R. § 3.151 (1979). An "informal" claim could be filed, but it as required that such claim indicate an intent to apply for one or more VA benefits, and would still have to meet the requirements of section 3.151 to be accepted as a claim to reopen. See 38 C.F.R. § 3.155(a) & (c) (1979). Moreover, the pertinent statutory provision in effect in 1979, which is also unchanged in substance to the present, provided that if a claimant's application for VA benefits was incomplete, the VA was authorized to notify him of the evidence necessary to complete the application, and if such evidence was not received within a year from such notice, no benefits could be paid by reason of such application. See 38 U.S.C. § 3003 (West 1976). There is no indication in the letter from Dr. R. that the veteran was seeking service connection for PTSD. The letter referred only to eligibility for psychiatric treatment at VA's expense. Accordingly, that letter did not meet the requirement that an intent to apply for service connection be demonstrated. The letter therefore cannot be considered to have been an informal claim of entitlement to service connection for a psychiatric disability. In February 1980, the RO contacted the veteran, stating "Before we can consider authorizing psychotherapy at government expense, we need more conclusive evidence that the condition for which you are being treated either began during military service or was aggravated while you were in military service." The RO then went on to detail the kinds of evidence which should be submitted. It is clear from the letter that the RO did not interpret Dr. R.'s December 1979 letter as anything other that it purported to be, a request for fee basis payment for psychiatric treatment rendered. In any event, the veteran did not respond to that letter. Because no response was received from the veteran in reply to the February 1980 letter from the RO, under the provisions of 38 C.F.R. § 3.158, he was deemed to have abandoned whatever claim for VA benefits he may have been attempting to file for with the submission of the December 1979 report from Dr. R. Section 3.158, as in effect in 1980, stated that no "further action" would be taken on a claim if the requested evidence was not submitted within one year, and that such failure terminates the claim. This was essentially what the February 1980 letter itself informed the veteran: "Under existing laws and regulations, we can take no further action on the matter discussed in Dr. [R's] letter until we receive more evidence from you". Because such evidence was not submitted, what was at that time an "incomplete" application for benefits under sec. 3003 of 38 U.S.C. became an abandoned claim in the absence of any reply communication from the veteran. In summary, the Board concludes that the February 1980 administrative action was a final determination of VA, which became final due to the veteran's failure to furnish requested evidence within a year after the February 1980 notice letter was sent to the veteran. See 38 C.F.R. §§ 3.104, 3.158 (1979). The Board concludes that application of the law to the facts in this case is against a finding that CUE was committed by the RO in the February 1980 administrative action. The veteran alleges the RO failed to apply the appropriate law, regulations and M21-1 manual provisions (Part 1-6, Par. 7.03) pertaining to disabilities related to combat. In this regard, he alleges the RO knew from his service records on file at that time that he was a combat veteran and in view of his submission at that time of a medical report dated in December 1979 from a private psychologist, Dr. R. R., Ph.D., which in his opinion clearly indicated that the veteran's psychiatric disorder was combat-related, the RO failed to apply the relaxed evidentiary standard for combat veterans. The veteran also alleges that the RO had more than sufficient evidence before it in February 1980 to not only proceed with a formal decision on his claim, but also to award service connection for the claimed-for nervous disorder under 38 C.F.R. §§ 3.303(a) and 3.304(d). In this regard, he points out that section 3.303(a) states that determinations of service connection must be based on review of the entire evidence of record. He alleges the RO failed to do this in the 1980 decision and but for this error, the outcome of his claim would have changed, resulting in a grant of service connection for a nervous disorder based on the service medical records and the report of Dr. R. dated in December 1979. However, in the Board's view, these allegations amount to nothing more than expressions of disagreement as to how the facts were then weighed or evaluated, which cannot form the basis of a valid claim of CUE. See Crippen, supra. The RO did not interpret the letter from Dr. R. as a claim on the part of the veteran for service connection for a psychiatric disability. The veteran was therefore notified via the February 1980 letter that he would need to furnish additional evidence and information before the RO could proceed. As discussed above, he never responded to this letter and we is deemed to have abandoned his claim under 38 C.F.R. § 3.158. Given this background, the RO was not required to adjudicate the putative claim on its merits. As discussed above, the Board does not believe that the December 1979 letter from Dr. concerning eligibility for psychiatric treatment at VA's expense constitutes a claim of entitlement to service connection for a psychiatric disability. In the absence of a service connection claim, the RO had nothing to adjudicate. The RO's February 1980 letter to the veteran, quoted above, makes it clear that the RO did not interpret Dr. R.'s letter as a claim on the part of the veteran for service connection. Such a conclusion is hardly unreasonable, given the contents of the letter, which did not mention service connection, and given that the veteran had not contacted the RO in connection with the letter. The RO's action in send a letter to the veteran rather than adjudicating a nonexistent PTSD claim hardly amounts to CUE. Moreover, even if it is conceded for the sake of argument that the veteran filed an informal claim for service connection for a psychiatric disorder based on submission of the December 1979 report from Dr. R., the RO deemed this letter to be insufficient to proceed with any kind of determination or adjudication. This resulted in the issuance of the RO's February 1980 letter advising the veteran of the need to submit additional evidence in order to proceed with "any further action". It is clear to the Board from the wording of the February 1980 letter that any application for benefits based on Dr. R.'s letter was deemed to be "incomplete" under the statutory authority cited above. Therefore, the veteran was specifically notified of the evidence required to complete his application for benefits. Based on the extreme sketchiness of the letter from Dr. R., which was unaccompanied by any clarifying information from the veteran, the Board does not believe that the RO was unreasonable to seeking additional information. The RO's not reaching a decision under such circumstances does not amount to CUE. The Board further observes that the veteran is mistaken in his interpretation of the language in 38 C.F.R. § 3.303(a), which states that determinations of service connection must be based on review of the entire evidence of record. This language means that evidence of record cannot be ignored. It does not mean that claims may be decided on an incomplete record. Here, the record was manifestly incomplete, and it was not error for the RO to ask the veteran for additional evidence. The veteran cannot now argue successfully that his claim should have been considered on the merits upon the mere submission of Dr. R.'s report in December 1979. With respect to the veteran's contention that the RO committed CUE in not addressing his combat status, as explained above the RO was not in a position to adjudicate the matter of service connection in February 1980, and therefore did not and could not reach any sub-issues, such as combat status. Hence, the Board finds that the February 1980 administrative action was not fatally flawed factually or legally at the time it was made, nor when viewed in light of the entire record as constituted at that time would a different conclusion be compelled. As with the 1975 CUE claim, it is clear that the veteran's allegations of error amount to disagreement as to how the evidence was weighed by the RO and alleged failures in its duty to assist, neither of which amount to valid claims of CUE. Accordingly, the Board concludes that the February 1980 administrative action was supported by the evidence then of record and was not clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a) (2003). Issue 3. Entitlement to an effective date earlier than December 23, 1991 for the award of service connection and disability compensation benefits for PTSD. The Board will move on to a decision on the veteran's earlier effective date claim. The Board would first like to clarify the underlying basis of the RO's assignment of the December 23, 1991 effective date for the PTSD award. It appears from the record that the veteran did not formally apply for disability benefits for PTSD prior to the date of his claim, December 23, 1992. However, because the report of Dr. R. R., Ph.D. dated December 11, 1979 showed that he was in "outpatient psychotherapy as a result of stresses incurred in Vietnam," the RO determined that he met all eligibility criteria for the liberalized benefit as of the effective date of the liberalizing change in the law which added PTSD to the VA's Schedule for Rating Disabilities (April 11, 1980). As such, section 3.114(a)(3) provided a legal basis to award payment of a one year retroactive effective date from the date of claim, thus warranting the assignment of the December 23, 1991 effective date for this award. Pertinent law and regulation Effective dates The effective date of an award of disability compensation based on service connection shall be the day following the date of discharge or release from active service if the application for such benefits is received within one year of such date; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2003); see also McGrath v. Gober, 14 Vet. App. 28 (2000) [Board must determine when the service-connected disability manifested itself under all of the "facts found"]. Once an effective date is established, actual payment of benefits may not begin until the first day of the next calendar month. 38 U.S.C.A. § 5111 (West 2002); 38 C.F.R. § 3.31 (2003). Analysis In essence, the veteran seeks entitlement to an earlier effective date for service connection for PTSD based on material in the record prior to his initial claim of entitlement to service connection for PTSD in 1992. He has specifically contended that his June 1975 claim for a nervous condition was not finally acted upon by VA and that such claim remained open thereafter. It is the conclusion of the Board that at that time the veteran filed his PTSD claim on December 23, 1992, no other such claim was pending. There is no communication in the file which reflects an intent to file a claim of service connection specifically for a psychiatric disorder diagnosed as "PTSD" prior to the date of this claim, and the veteran has pointed to no such communication. With respect to the matter of the veteran's previous interactions with the RO, specifically the June 1975 claim and the December 1979 letter from Dr. R., the Board has explained in detail above which it has concluded that the October 1975 and February 1980 actions of the RO constituted final decisions. In addition, as explained above the Board does not believe that the December 1979 letter from Dr. R. constituted a formal or informal claim of entitlement to service connection in any event. As noted above, the veteran was awarded an effective date of December 23, 1991, one year earlier than the date of his formal claim of service connection for PTSD, because he met the eligibility for such an award from the date of the liberalizing change adding PTSD as a VA disability, April 11, 1980. This eligibility was based on the December 1979 report from Dr. R. However, establishing eligibility for a benefit from the date of a liberalized law under section 3.114 does not establish entitlement to the award of benefits as of that date. See 38 C.F.R. § 3.400 [the effective date of an award of compensation will be the date of receipt of claim or the date entitlement arose, whichever is the later]. Here, even assuming that the December 1979 report could be interpreted as showing that the veteran had a diagnosis of PTSD, which it did not, the veteran did not file his formal claim for PTSD until many years later. Therefore, he would only be entitled under section 3.114 to the one year retroactive effective date from the date of his December 1992 formal claim, as was awarded in this case by the RO. The Board notes further that no other medical report or evidence in the file provides any basis to conclude that an informal claim for PTSD was filed at any time prior to the December 1991 effective date. As indicated above, the medical evidence actually reflects a first time diagnosis of PTSD subsequent to the filing of the veteran's initial claim in December 1992. The Board also has reviewed the record to ascertain whether there are any claims of entitlement to service connection for PTSD, either formal or informal, before December 23, 1991. See Servello v. Derwinski, 3 Vet. App. 196 (1992); see also EF v. Derwinski, 1 Vet. App. 324 (1991) [VA must liberally construe all documents filed by a claimant in order to determine, or even to infer, what claims have been filed]. Specifically, there is no evidence that any prior communication or action from either the veteran, his representative or a Member of Congress or some other person acting as his friend was submitted that could reasonably be interpreted as reflecting an intent to file an informal claim of service connection for PTSD prior to December 23, 1991. See 38 C.F.R. § 3.155 (2003). The Board has carefully examined the appellate record and finds that there are no other statements from the veteran or other interested party or other non-medical evidence that was received before December 23, 1991 that could be construed as either a formal or informal claim seeking entitlement to service connection for PTSD. The Board notes as well that the result in this case would be the same under 38 C.F.R. § 3.114 and § 3.400 even if the veteran's 1992 claim of service connection for PTSD was considered a "reopened" claim of entitlement to service connection for an acquired psychiatric disability on the basis of prior final decisions denying service connection for the "nervous disorder", rather than an initial claim of entitlement for service connection for PTSD. Section 3.114 of 38 C.F.R. specifically states it this provision applies equally to original and reopened claims. With respect to the veteran's main contention, to the effect that his claim lay unadjudicated since 1975, the Board reiterates its discussion as to this matter in connection with the first issue on appeal. In essence, for reasons expressed in detail above, the Board views the October 1975 disallowance as a final determination, and further finds that the veteran was provided adequate a priori notice in July 1975 under the law and regulations then in effect. Conclusion In summary, for reasons and bases expressed above, there is no legal basis to assign an effective date earlier than December 23, 1991. The Board is bound by the applicable law and regulations of the Department. See 38 U.S.C.A. § 7104(c). Where the law and not the evidence is dispositive of the issue before the Board, as in this case, the claim is denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the appeal is denied. ORDER The claim of clear and unmistakable error in the October 1975 administrative action is denied. The claim of clear and unmistakable error in the February 1980 administrative action is denied. Entitlement to an effective date earlier than December 23, 1991 for the award of service connection and disability compensation benefits for PTSD is denied. ____________________________________________ Barry F. Bohan 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