Citation Nr: 0405601 Decision Date: 03/01/04 Archive Date: 03/11/04 DOCKET NO. 97-07 484 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to waiver of recovery of an overpayment of improved pension benefits in the amount of $7,765. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from April 1946 to February 1949. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1995 decision of the Committee on Waivers and Compromises (the Committee) of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The veteran's waiver claim is presently before the Board for reconsideration on the basis of a change in the law under 38 C.F.R. § 1.969(a). See VAOPGCPREC 22-90, 55 Fed. Reg. 40991 (1990). In February 1999, the veteran and his spouse testified at the RO before the undersigned at a personal hearing. In July 1999, the Board determined that the veteran's actions leading to an overpayment of VA pension benefits in the amount of $7,765 did not constitute fraud, misrepresentation or bad faith. The Board remanded the matter of entitlement to waiver of recovery of an overpayment of improved pension benefits in the amount of $7,765 to the RO for consideration by the Committee under the standard of equity and good conscience. The case was transferred to the Louisville, Kentucky RO because the veteran relocated. The Committee at that RO determined that a waiver of the recovery of the debt in question was not against equity and good conscience. FINDINGS OF FACT 1. In a July 1999 determination, the Board concluded that the overpayment of VA improved pension benefits in the amount of $7,765 was not due to the veteran's fraud, misrepresentation or bad faith. 2. The creation of the debt was due in part to fault on the part of VA and due in part to fault of the veteran. 3. The recovery of the pension benefits did not nullify the objective for which benefits were intended, and the veteran would have been unjustly enriched if the benefits were not recovered, since failure to make restitution would have resulted in unfair gain to the veteran. 4. The veteran did not change his position to his detriment, and reliance on these VA benefits does not result in relinquishment of a valuable right or incurrence of a legal obligation. 5. There is no financial hardship in this case. CONCLUSION OF LAW The recovery of the overpayment of VA improved pension benefits in the amount of $7,765 was not against equity and good conscience and, therefore, is not waived. 38 U.S.C.A. §§ 5107, 5302(a) (West 2002); 38 C.F.R. §§ 1.963(a), 1.965(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) There has been a significant change in the law with the enactment of the VCAA. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). To implement the provisions of the law, the VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). Although the veteran was provided a VCAA letter in July 2003, the notice and duty-to-assist provisions of the VCAA do not apply in waiver of overpayment. Barger v. Principi, 16 Vet. App. 132, 138 (2002). Background At the outset, the Board notes that there are certain income limitations in place for veterans eligible for pension benefits. For each 12-month period, there is a statutory limitation. If the veteran's family income is below the applicable limit, he/she may be granted pension benefits to make up the difference between his/her family income and the applicable annual statutory limit. For 1985, this limit was $7,478; for 1986, it was $7,710; and for 1987, it was $7,811. In February 1985, the veteran submitted a VA Form 21-527, Income-Net Worth and Employment Statement, in support of a claim for VA pension benefits. The veteran was informed therein that the rate of pension benefits was dependent on family income and that he was responsible for reporting all income and the sources of all income. At that time, the veteran reported that his marital status was divorced and that he did not have any income or assets. In a July 1985 rating decision, entitlement to pension benefits was granted. In a July 1985 notification letter, the veteran was informed that his claim for pension had been approved effective March 1985. He was advised of the rate of pension and was informed that it was based on his report of no income for himself. He was also furnished a 21-8768 which informed him that the rate of pension paid to a veteran depended on the amount of family income and the number of dependents, that he was obligated to notify VA immediately if there was any change in income or net worth, that he was obligated to report all income from all sources, that any reduction or discontinuance of benefits caused by a change in income would be effective the first day of the month following the month the change occurred, and that a failure to notify VA of changes would result in an overpayment which would be subject to recovery. In September 1985, a VA Form 21-686c, Declaration of Marital Status, was received. In that form, the veteran indicated that he had married H. J. in June 1985. He submitted supporting documentation of their marriage and that her former spouse was deceased. He also submitted documentation showing that his former marriage had ended in divorce. The veteran reported that he personally had no income the previous year, that year, or that he expected to have any income the following year. He reported that during the past year, his spouse had income consisting of $2,144.05 in annuities and retirement monies as well as $2,548.38 in dividends/interest monies. He reported that during the current year, she had income of $2241.23 in Social Security benefits, $1,698.48 in annuities and retirement monies, and $2,000.10 in dividends/interest monies. For the next year, he reported that she expected to have income of $2,050.62 in Social Security benefits, $1,554.04 in annuities and retirement monies, and $1,830 in dividends/interest monies. All denominations were reported in United States currency. The veteran reported that he had debts totaling over $33,000. He reported that his spouse had $30,000 in debt and had assets of over $40,000. In his form, he also indicated that his spouse, who was a Canadian citizen, and he had signed a prenuptial agreement in which it was stated that her estate would pass to her children upon her death and his estate would pass to his children, although he indicated that he had nothing to leave his children. He stated that he was not privy to her financial affairs per their legal arrangement, apparently to other than what he had reported. The veteran indicated that he assumed that he would remain entitled to VA pension benefits. At this juncture, the Board notes that the veteran reported his marriage within a reasonable period of time. In October 1985, an Eligibility Verification Report (EVR) was received from the veteran. On that form, he reported that he had no income and that all of his expenses were paid for by his wife. In this form, the veteran failed to report his wife's income. In an October 1985 letter, VA informed the veteran that his "family" income was used to determine his entitlement to VA benefits and that he needed to furnish additional information with regard to his spouse's income. The veteran's pension was suspended pending receipt of this information. In December 1985, a letter was received from the veteran in which he indicated that he did not understand why he was not receiving his pension checks. He related that he had been separated from his wife for the month of November, but was again living with her. In January 1986, further correspondence was received from the veteran in which he indicated that he did not have any income and did not contribute to his wife's support. He supplied information showing that his wife had a pension payment of approximately $280 per month from the time of their marriage and of approximately $212 prior to their marriage. This information was from the source of the income and is therefore found to be credible. Therefore, although he previously had reported that she had income from this source, a Canadian pension plan, he had incorrectly reported the amount of that income, presumably because he had made estimation. In a February 1986 notification letter, the veteran was notified that his pension had been reinstated effective September 1985 and was based on his report of no income alone. The Board notes that this was an error by the RO. The veteran had just reported that his wife had income. In October 1986, an EVR was received from the veteran in which he reported that he was married and living with his spouse. He reported his sole income and assets. This information furnished by the veteran was incomplete since he did not report his wife's income. In an October 1986 letter, VA advised the veteran that his pension benefits were being suspended pending receipt of his VA Form 21-6897, showing his and his wife's income. In response, in November 1986, correspondence was received from the veteran. In that correspondence, he reported that he shared everything that he had with his wife, which consisted of his pension, and that she matched that income with her Canadian retirement funds. He stated that he needed an increase in his pension, not a suspension. He requested that his wife be added as a dependent to his award. He reported that his wife had married him with the knowledge that he had pension income and that she had separated from him when the pension had been suspended, then reconciled when it was reinstated. The veteran submitted a VA Form 21-6897, Statement of Income and Net Worth-Disability. In that form, in United Stated currency, he reported that during the past year, he had interest income of $100 and his VA pension income. He reported that during the current year and for the next year, his income was the same. He further reported that during the past year, his spouse had income consisting of $2,144.05 in annuities and retirement monies as well as $2,548.38 in dividends/interest monies. He reported that during the current year, she had income of $2241.23 in Social Security benefits, $1,698.48 in annuities and retirement monies, and $2,000.10 in dividends/interest monies. For the next year, he reported that she expected to have income of $2,050.62 in Social Security benefits, $1,554.00 in annuities and retirement monies, and $3,930 in dividends/interest monies. Thus, the income was expected to change. All denominations were reported in United States currency. The veteran reported that he had assets of $2,140, but also had debts totaling over $31,000. He reported that his spouse had $4,000 in assets. The Board notes that the veteran underreported his wife's pension income. The Board finds that the statement provided by the Canadian pension authority showed that her pension for 1986 and 1987 was higher than what he reported, as previously noted by the Board above. In using this pension information along with the information regarding income from other sources as furnished by the veteran, the Board finds the following. In 1985, his wife received pension of $212 for 6 months and of around $280 for 6 months; thus, she received $2952 from that source. She also received $2548 in dividends/interest, and $2241 from Social Security. Thus, their income for 1985 (not including VA pension) was approximately $7,741. For 1986, she had income from pension of approximately $3,420, income of $2,241 from Social Security; and they had income of $2,100 (his and hers) from interest/dividends. Thus, their income for 1986 (not including VA pension) was approximately $7,761. Therefore, their combined income for 1985 and 1986 exceeded the statutory limits. It was projected to well exceed the limit for 1987 as income was projected to be over $9,000. In a December 1986 letter, the veteran reported that he had his wife had separated a few days earlier since his pension had been suspended. He requested that his pension be reinstated. In January 1987, the veteran was notified that his pension had been retroactively terminated effective July 1985 based on his family income. This retroactive termination resulted in the creation of an overpayment of $7,765. In February 1987, correspondence was received from the veteran in which he reported that he and his wife were divorced. He also submitted a VA Form 21-6897, Statement of Income and Net Worth-Disability. In that form, he crossed out the section provided for a spouse's information. He reported that his past income for the preceding year was $118 in dividends/interest. He reported having no other income. He reported having no assets and debts of over $29,000. He requested that his VA pension benefits be reinstated. In March 1987 correspondence, the veteran requested a waiver of the overpayment debt. He related that he had reported all of his income to VA and was currently staying with his 76 year old mother because he had nowhere else to go. In March 1987, VA requested additional information from the veteran. In a June 1987 decision, the Committee of the St. Petersburg, Florida, RO, determined that the veteran was materially at fault in the creation of the overpayment, thus waiver was precluded by law. In July 1987, a VA Form 4-5655, Financial Status Report, was received from the veteran. In that form, he indicated that he was again married to H. J., and that he had monthly income of VA pension and she had monthly income of $793. He indicated that when they needed money to pay debts, she sold stocks. The veteran reported that he had no assets, but his wife had $4,000 in cash, $68,000 in Canadian stocks, and $116,000 in a Canadian retirement savings plan. He indicated that he was over $35,000 in debt. The veteran stated that he had no way to repay his debts. He emphasized that his and his wife's monies were completely separate per the prenuptial agreement. He also maintained that whenever VA cut off his benefits, he and his wife separated. The veteran submitted information showing that his and his wife's divorce had been annulled. The Board notes that this financial status report showed that the veteran's family income for 1987 was over $9,500, not including his VA pension. Also, in July 1987, an EVR was received from the veteran. In that form, the veteran reported having no income and that his wife had monthly income consisting of $300 in Canadian Social Security benefits and $438 and $65 in Canadian pension monies. He reported that his wife's assets totaled $188,000 and that he only had debts which totaled over $35,000. In an August 1987 notification letter, the veteran was advised that his VA pension had again been terminated, effective March 1987 due to his family income which exceeded the statutory rate for pension benefits. In April 1988, a VA form 21-6897, Statement of Income Net Worth-Disability, was received from the veteran. In that form he reported that during 1987, he had no annual income and his wife had annual income of $1,554 from annuities/retirement and $2,050 from other income. During 1988, he reported that he had no income and his wife's was the same as in 1987. For 1989, the veteran reported the exact same information. The veteran emphasized that the prenuptial agreement precluded his access to his wife's assets which were being willed to her son. He stated that his wife provided their food, lodging, clothing, and personal expenditures. The Board notes at this point that this form did not accurately reflect the income received by the veteran's family in that the income reported by the veteran on this form was less than he had previously reported and which had previously been substantiated. In April 1988, the veteran testified at a personal hearing before the Committee at the St. Petersburg, Florida, RO. At that time, the veteran related that when he applied for VA pension benefits he had no income and was not married. In June 1985, the veteran and H. J. married. He related that he could not fully report her income because she would not reveal that information to him. He related that he knew that she received Canadian Social Security benefits as well as Canadian retirement benefits. The veteran indicated that prior to their marriage, he and his wife signed a prenuptial agreement which precluded his access to her assets. He related that his wife paid for their food, lodging, clothing, and necessities. Her son owned their home. The veteran indicated that his wife had refused to provide financial information because she felt that it was not VA's business, she is a Canadian citizen. Thereafter, the veteran submitted a VA Form 21-8049 in which he indicated that his wife supported him and that she was depleting her savings to support them. In a July 1989 decision, the Board determined that the veteran was materially at fault in the creation of the overpayment of improved pension benefits in the amount of $7,765 and that this precluded a waiver of the recovery of the debt. The veteran's waiver claim was thereafter reconsidered on the basis of a change in the law under 38 C.F.R. § 1.969(a). See VAOPGCPREC 22-90, 55 Fed. Reg. 40991 (1990). However, in a September 1995 decision, the Committee again determined that waiver was precluded by law by finding that the veteran had acted in bad faith in the creation of the overpayment at issue. The veteran appealed this matter to the Board. In March 1996, the veteran testified at a personal hearing before the Committee. The veteran related that he tried to give an accurate report of his marital situation and their financial situation to VA. The veteran again indicated the nature of the prenuptial agreement. He related that any mistakes that he made were out of ignorance. In February 1999, the veteran testified at a personal hearing before the undersigned. The veteran testified to the nature of his prenuptial agreement. He related that he tried to accurately report dependency and financial information to VA. In July 1999, the Board determined that the veteran's actions leading to an overpayment of VA pension benefits in the amount of $7,765 did not constitute fraud, misrepresentation or bad faith. The Board remanded the matter of entitlement to waiver of recovery of an overpayment of improved pension benefits in the amount of $7,765 to the RO for consideration by the Committee under the standard of equity and good conscience. Thereafter, a financial status report was received from the veteran. In this form, he reported that his monthly income was $1579; he had no living expenses (he is in a nursing home); he had assets of $18,000; and that his debts total $800. In February 2003, the Louisville, Kentucky Committee at that RO determined that a waiver was not warranted under the standard of equity and good conscience. Analysis As noted, the Board determined that there is no fraud, misrepresentation, or bad faith on the veteran's part with respect to the creation of the overpayment at issue. In cases where there is no fraud, misrepresentation, or bad faith on the veteran's part with respect to the creation of the overpayment at issue, and, therefore, waiver is not precluded pursuant to 38 U.S.C.A. § 5302(a), in order to dispose of the matter on appeal, the Board must determine whether recovery of the indebtedness would be against equity and good conscience, thereby permitting waiver under 38 U.S.C.A. § 5302(a) and 38 C.F.R. §§ 1.963(a), 1.965(a). The pertinent regulation in this case provides that the standard of "equity and good conscience" will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the Government's rights. 38 C.F.R. § 1.965(a). The elements of equity and good conscience are as follows: (1) fault of debtor, where actions of the debtor contribute to creation of the debt; (2) balancing of faults, weighing fault of debtor against VA fault; (3) undue hardship, whether collection would deprive debtor or family of basic necessities; (4) defeat the purpose, whether withholding of benefits or recovery would nullify the objective for which benefits were intended; (5) unjust enrichment, failure to make restitution would result in unfair gain to the debtor; (6) changing position to one's detriment, reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation. The first and second elements pertain to the fault of the debtor versus the fault of the VA. The Board finds that there is fault on both sides here. First of all, it is clear that the veteran's former wife, H. J., had a considerable estate. However, the veteran's pension benefits were not terminated based on this estate. The Board must question why there was no corpus of estate determination. Specifically, the statutes and regulations governing pension benefits provide that pension shall be denied or discontinued when the corpus of the estate of the veteran and his spouse is such that under all circumstances, including consideration of annual income of the veteran, and his spouse, it is reasonable that some part of the corpus of such estates be consumed for the claimant's maintenance. 38 U.S.C.A. §§ 1521, 1522; 38 C.F.R. § 3.274(a). Nevertheless, there was no corpus of estate determination. Rather, pension was granted and eventually terminated based on income. When the pension benefits were granted, the grant was based on the veteran's report of having no personal income. He was not married when he applied for pension. Shortly thereafter, he married H. J. and reported their marriage. He was forthcoming about her having an estate, which he had no access to, and that she had monthly income. The veteran made errors in reporting her income as noted above.. His reporting at times was convoluted and inaccurate. He reported his wife's pension benefits inaccurately when he apparently had access to that information. He also reported various amounts for her assets which varied greatly. However, VA also was at fault. VA improperly continued pension benefits based on the veteran's income alone in February 1986 even though the veteran had just reported H. J.'s income. While the veteran and his wife were above the statutory limits for pension benefits from 1985-1987, VA made payments when payments should not have been made. There is fault on both sides in this case. In regard to whether collection would defeat the purpose of the benefit and whether failure to collect would cause unjust enrichment to the debtor, the Board notes that the veteran received benefits he was not entitled to receive. The overpayment has long been recouped. Thus, the recoupment of those benefits did not defeat the purpose of the benefit because the veteran and H. J. had too much income to receive pension benefits. While the veteran may not feel that their income was substantial, it was above the statutory limits and that is the bottom line, not whether he personally felt that they needed the money or that they did not have enough money to live on. Their income must have been below the applicable statutory limitations for there to have been entitlement. This was not the case. A failure to recoup the benefits would have caused unjust enrichment to the debtor for the same reason, the veteran and H. J. had too much income to receive VA benefits. Likewise, there is no indication that the veteran's reliance on VA benefits resulted in relinquishment of another valuable right. The Board has also considered whether the veteran suffered/would suffer undue financial hardship if forced to repay the debt at issue. The debt has already been repaid. The record does not show that financial hardship was endured during the repayment of the debt or that the veteran was deprived of the basic necessities. Currently, as shown on his financial status report, the veteran has assets of over $18,000, and is earning monthly income while apparently not depleting monthly income, per his own report. Therefore, the Board cannot find financial hardship. In sum, VA made errors in continuing payment of VA improved pension benefits when VA had received information from the veteran showing that his family income was too high to receive those benefits. The income of the veteran's spouse was part of the veteran's family income and should have been considered at all times. However, the veteran is not without fault because he at times underreported his wife's income and reported great fluctuations in her assets. Also, his dependency status frequently changed and adjustments were ongoing in that regard. Further, significantly, all of the other elements of equity and good conscience are not in the veteran's favor. The veteran was not entitled to receive VA pension and he was unjustly enriched when he did. This unjust enrichment was rectified when the pension benefits were recouped. The veteran did not change his position to his detriment. His reliance on VA benefits did not cause him to relinquish any valuable right or incur a legal obligation. There is no showing of financial hardship here. Therefore, in viewing the elements of equity and good conscience, the Board concludes that the negative evidence outweighs the positive evidence and that the facts in this case do not demonstrate that the recovery of the overpayment was against equity and good conscience. ORDER A waiver of the recovery of an overpayment of improved disability pension benefits in the amount of $7,765 is denied. ____________________________________________ HOLLY E. MOEHLMANN 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