Citation Nr: 0413552 Decision Date: 05/27/04 Archive Date: 06/02/04 DOCKET NO. 01- 07 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from January 12, 1971, to April 14, 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. During the appellate process, the veteran failed to show for a personal hearing before a member of the Board sitting in Washington, D.C., which was scheduled for March 1, 2004. He filed a motion for a new hearing, but his motion was denied by the Board member who had been scheduled to conduct the March 1, 2004, hearing. (The decision below addresses the question of whether previously denied claims of service connection should be reopened. Consideration of the underlying question of service connection for PTSD and a seizure disorder is deferred pending completion of the evidentiary development requested in the remand that follows the decision below.) FINDINGS OF FACT 1. By an unappealed June 1999 rating decision and determination letter, the RO denied service connection for PTSD and found that new and material evidence had not been submitted to reopen a claim of service connection for a seizure disorder. 2. The evidence pertaining to the veteran's PTSD and seizure disorder claims, received since the June 1999 RO rating action, is so significant that it must be considered to fairly decide the merits of the claims of service connection. CONCLUSIONS OF LAW 1. The June 1999 rating decision wherein the RO denied service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (1998). 2. The June 1999 determination wherein the RO found that new and material evidence had not been submitted to reopen a claim of service connection for a seizure disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (1998). 3. The additional evidence received subsequent to the June 1999 rating decision and determination letter is new and material; the claims of service connection for PTSD and a seizure disorder are reopened. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he currently has PTSD and a seizure disorder as a result a being kicked in the right side of the face by a sergeant/drill instructor during boot camp in April 1971 at Camp Pendleton in San Diego, California. He maintains that after the assault, he was hospitalized at Balboa Naval Hospital for two days, that tests were performed, that he told a physician about the assault and seizures, and that he was told that he had temporal lobe seizures and was placed on medication. The veteran maintains that he does not remember the specific details of the incident but that his seizures and PTSD had their onset after the in-service physical assault. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2003). Regulations also provide that service connection may 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. 38 C.F.R. § 3.303(d) (2003). The appellant's claims of entitlement to service connection for PTSD and a seizure disorder were previously addressed by the RO in a June 1999 rating decision and determination letter. That action denying the claim to reopen service connection for a seizure disorder and denying service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002). This is so because the veteran did not appeal within the time period allowed. 38 C.F.R. §§ 20.302, 20.1103. Nevertheless, a claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2003); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In September 1998, the United States Court of Appeals for the Federal Circuit issued an opinion which overturned the test for materiality established by the United States Court of Appeals for Veterans Claims (Court) in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the so-called "change in outcome" test). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Federal Circuit in Hodge mandated that materiality be determined solely in accordance with the definition provided in 38 C.F.R. § 3.156(a). (The Board notes that 38 C.F.R. § 3.156(a) was amended in August 2001. However, that amendment is applicable only to claims filed on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). The appellant's claim to reopen was filed in April 2000.) Under 38 C.F.R. § 3.156(a) (2001), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim and if it is not merely cumulative or redundant of other evidence that was then of record. See also Struck v. Brown, 9 Vet. App. 145, 151 (1996); Blackburn v. Brown, 8 Vet. App. 97, 102 (1995); Cox v. Brown, 5 Vet. App. 95, 98 (1993). "Material" evidence is evidence which bears directly and substantially upon the specific matter under consideration, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a); Hodge, supra; cf. Duty to Assist, 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.156(a)) (new and material evidence is defined differently for claims filed on or after August 29, 2001). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, in a June 1999 rating decision and determination letter, the RO denied service connection for PTSD and found that new and material evidence had not been received to reopen the veteran's claim of service connection for a seizure disorder. The June 1999 determination letter included a copy of the rating decision and notice of the veteran's right to appeal, which were provided to the veteran and his representative, Disabled American Veterans. No appeal was taken from the June 1999 rating determination. As such, it is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The June 1999 RO rating decision found that the clinical evidence of record was devoid of any diagnosis of PTSD which was related to a stressor during the veteran's active service. In the June 1999 determination letter, the RO indicated that service connection for a seizure disorder had been previously denied and that the veteran had been informed of that decision. The RO informed the veteran that because new and material evidence had not been received to reopen the claim of service connection for a seizure disorder, the previous denial remained unchanged. Evidence that was of record at the time of the RO's June 1999 rating decision and determination letter included the veteran's service medical and personnel records. A review of the records discloses that during a December 1970 enlistment examination, there was no evidence of any neurological or psychiatric abnormality found. A December 1970 Report of Medical History reflects that the veteran denied having any dizziness or fainting spells, frequent trouble sleeping, terrifying nightmares, depression or excessive worry, or nervous trouble. These records are devoid of any clinical evidence or subjective complaints of seizures or a psychiatric disability. After two and a half months of service, the veteran was referred to the recruit evaluation unit where it was determined on psychiatric examination that he exhibited no obvious signs of psychosis, neurosis or suicidal ideation. The veteran displayed an open resistance with efforts to help him, and his contentiousness caused him to be identified as unlikely to complete his training. He was recommended for further evaluation by an aptitude board. The veteran was subsequently recommended to be separated from service because of unsuitability. An April 1971 separation examination report reflects that the veteran was found to have no neurological or psychiatric impairment. Also of record at the time of the RO's June 1999 rating decision and determination letter was a statement, received by the RO in April 1972, which had been signed by ten people who had been associated with the veteran in some way during the previous eighteen years, and who indicated, to the best of their knowledge, that the appellant had not had any fainting spells or seizures before he entered military service. The veteran also submitted a statement by Mrs. B. F., who reported that the appellant did not have any problems before service, but did after he entered service. Post-service VA and private clinical treatment reports, dated from February 1972 to January 1983, were also of record in June 1999. When the veteran was evaluated by VA in February 1972, an impression of possible seizure disorder was entered. A June 1972 VA general medical examination of the veteran was essentially normal. During a July 1972 VA neuropsychiatric examination, also conducted in June 1972, the veteran indicated that he was suffering from convulsive seizures, which had their onset on February 22, 1972. He related that he had had two more since that time, one while riding in a motor vehicle and another when he was in bed. After a physical and psychiatric examination, a diagnosis of chronic brain syndrome with a definite history of convulsive disorder was recorded. The examiner further suspected intracranial neoplasm with a history of marked increase in weight in the previous fourteen months, (sixty-six pounds), the convulsive onset at the age of eighteen, the history of continuous headaches, and a history of impaired thinking ability. During a December 1972 VA hospitalization, the veteran stated that he had had his first seizure while on active duty in the Marine Corps and that witnesses had observed his body stiffen and shake for approximately three to five minutes without tongue-biting or incontinence. The veteran related that he had had a post-ictal period that lasted thirty minutes during which he did not exhibit awareness of activity in his environment and would stare in a trance. He indicated that since April 1971, he had had seven attacks, which occurred approximately every three months until July 1972, at which time he experienced seizures on a monthly basis. The veteran was noted to have had a history of an automobile accident in 1969 or 1970, in which he may have had a blackout episode following the impact. After a physical evaluation of the veteran, final diagnoses of seizure disorder, temporal lobe, focal, secondary to trauma; and personality disorder, complicated by the above were recorded. A January 1983 clinical treatment report, submitted by the Oklahoma Department of Corrections, reflects that the veteran had a history of seizure disorders. Finally, a January 1974 statement, submitted by [redacted] [redacted]., was of record in June 1999. Mr. [redacted] indicated that he was in the service with the veteran while in recruit training in the Marine Corps, that he had noticed that the veteran was affected by the physical and emotional strain more than the majority of their fellow recruits, and that he saw him become very nervous and upset emotionally, sometimes to the point where he was unable to cope with his surroundings. Mr. [redacted] did not witness any fainting spells or convulsions. Evidence received since the June 1999 rating decision and determination letter includes private medical statements, dated in November 2002, submitted by R. L. P. M.D., and W. J. S. PsyD., essentially reflecting that the veteran suffered from a seizure disorder and PTSD associated with trauma to the head during an incident while in the Marine Corps. The Board finds that the statements of R. L. P., M.D., and W. J. S., PsyD., dated in November 2002, are new and material. They were not previously of record at the time of the June 1999 determination, and they relate to previously unestablished facts, namely that the veteran currently has a seizure disorder and PTSD that are etiologically related to an incident during the appellant's service. As such, they are clearly not cumulative or redundant of evidence previously of record. Inasmuch as the credibility of such evidence is presumed for the purpose of the determination to reopen, the Board finds such statements are so significant that they must be considered to fairly decide the merits of the claims. Accordingly, reopening of the claims is in order. ORDER New and material evidence has been received to reopen the claims of entitlement to service connection for PTSD and a seizure disorder; the appeal to this extent is granted. REMAND In view of the Board's decision reopening the appellant's claims, further development of the medical evidence is required prior to consideration of the underlying question of service connection. In this regard, a review of the November 2002 opinions of R. L. P., M.D., and W. J. S., PsyD., reflects that they were based in substantial part upon medical history as reported by the appellant. VA's duty to assist a veteran in obtaining and developing available facts and evidence to support a claim includes obtaining an adequate and contemporaneous VA examination which takes into account the records of prior medical treatment or evaluation. Littke v. Derwinski, 1 Vet. App. 90 (1990). Therefore, in light of the above, the Board is of the opinion that VA examinations, as specified in greater detail below, should be performed. The Board also notes that 38 C.F.R. § 3.304(f) was amended in March 2002, during the pendency of this appeal. See 67 Fed. Reg. 10332 (Mar. 7, 2002). This regulation is specifically germane to the development and adjudication of this claim as the revision involves the standard of proof and the type of evidence necessary to substantiate a claim of service connection for PTSD based on personal assault. It also specifically provides that VA will not deny this type of PTSD claim without first advising the claimant that evidence from sources other than the veteran's service records, or evidence of behavior changes, may constitute credible supporting evidence of the stressor, and allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(3) (2003). A review of the record reveals that the RO has not sent the veteran a personal-assault development letter, or otherwise developed the record along these lines. The Board also notes that precedent holdings of the Court provide specific guidance for the adjudication of PTSD claims based on non-combat stressors. See Patton v. West, 12 Vet. App. 272 (1999) (verification of non-combat stressors); Suozzi v. Brown, 10 Vet. App. 307 (1997) (sufficiency of information to verify stressors). In the Patton case, the Court found error in the Board's decision because it did not discuss the special evidentiary procedures for the development of PTSD claims based on non-combat stressors as established by VA guidelines. Patton, 12 Vet. App. 272 (1999). Where, as in this case, the claimant did not serve in combat and the claimed stressor is not related to combat, lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Id. citing West (Carelton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In these types of cases, special development procedures for non-combat stressors are required pursuant to VA's ADJUDICATION PROCEDURE MANUAL (the M21-1) in order to provide the veteran-claimant every opportunity to verify the occurrence of the claimed stressor. See M21-1, Part III, Section 5.14 (Mar. 2002). In light of the Court's precedent holdings, the Board finds it necessary to address the matter of whether there is sufficient corroboration of the appellant's stressor (in- service physical assault) upon completion of the special development procedures under M21-1, Part III, Sec. 5.14, and upon completion thereof, further medical development to determine whether any "markers" or "behavioral changes" that occurred at or close in time to the alleged incident could possibly indicate the occurrence of the stressor, as described in detail in the M21-1. Specifically, additional evidentiary development is required, to include stressor- verification development and the scheduling of the appellant for a VA psychiatric examination to determine whether he has a DSM-IV diagnosis of PTSD based on his reported stressor and a complete review of all the evidence in the claims folders. Therefore, prior to final appellate review of the veteran's claim of service connection for PTSD, the procedural due process requirements imposed by the VCAA as well as by the regulation changes and Court decisions dealing with personal assault cases sets forth specific and unambiguous development standards that must be met before the Board issues a final decision on the merits of the claim of service connection. Although not necessarily a reason, in and of itself, to remand these claims, upon remand, the RO should comply with the duty-to-notify and duty-to-assist provisions enacted by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (the VCAA) [codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2002)]. This law redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, including which evidence, if any, the veteran is expected to obtain and submit, and which evidence will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Therefore, in order to fully adjudicate the veteran's claims, this case is REMANDED to the RO for the following action: 1. The RO should review the claims folders and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), is completed with respect to the claims of service connection for PTSD and a seizure disorder. The notice must be specific to the claims on appeal. 2. After securing the necessary authorizations from the veteran, the RO should attempt to obtain all reports of treatment of the veteran for his PTSD and seizure disorder. The RO should ensure that its efforts to obtain the identified records are fully documented in the claims folders. If private treatment is reported and those records are not obtained, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. If these records are not available, documentation as to this must be contained in the claims folders. 3. In addition, the RO should contact the appellant and inform him that he may submit any other corroborating evidence he may have pertaining to the alleged personal assault incident experienced during service at Camp Pendleton, San Diego, California. The RO should inform him that he may submit any other evidence to verify his alleged stressors from military as well as nonmilitary sources. The RO should assist the appellant in obtaining such evidence, as appropriate. In connection with this development, the RO should ensure that all appropriate special development procedures mandated by M21-1, Section 5.14 and 38 C.F.R. § 3.304(f)(3) for verification of a non- combat stressor are fully accomplished and documented in the claims folder, to include issuance of the special development letter to the appellant advising him of the steps necessary to verify his non-combat stressor. 4. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine whether the veteran has PTSD. The claims folders and a copy of this remand must be provided to the examiner prior to the examination. Psychological testing should be conducted with a view toward determining whether the veteran has PTSD. The diagnosis must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. The examiner should specifically determine whether a diagnosis of PTSD is supported, particularly with respect to whether circumstantial evidence supports a conclusion that an in-service personal assault occurred. If the diagnosis of PTSD is confirmed, the linkage of the PTSD to the veteran's service and any stressor(s) in service, should be fully discussed. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether the alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current PTSD-symptomatology and the in- service stressor found to be established by the record and found sufficient to produce PTSD. 5. After the development requested above has been performed, the veteran's claims folders, to include service medical and personnel records, and the November 2002 opinions of R. L. P., M.D. and W. J. S. PsyD., must be forwarded to a neurologist for review and to obtain an opinion as to whether it is at least as likely as not that the veteran's seizure disorder is etiologically related to the veteran's military service, to include the alleged personal assault. A complete rationale for all opinions expressed must be provided. 6. The RO should then review the record and ensure that the aforementioned development has been completed to the extent possible. See Stegall v. West, 11 Vet. App. 268 (1998). Any additional development deemed necessary should be conducted. 7. Following any additional development deemed appropriate, the RO should adjudicate the claims de novo. If any benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC) and given the appropriate opportunity to respond before the claims folders are returned to the Board for further review. After the veteran is given opportunity to respond and the period allowed for response has expired, the case should be returned to the Board. The purpose of this remand is to obtain additional development and comply with due process requirements. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §§ 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. § 5109B, and 38 U.S.C. § 7112). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY 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