Citation Nr: 0422742	
Decision Date: 08/18/04    Archive Date: 08/24/04

DOCKET NO.  02-07 583	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, 
Nevada


THE ISSUES


1.  Entitlement to service connection for a pulmonary 
disorder due to the use of tobacco products.

2.  Entitlement to service connection for asbestosis.

3.  Entitlement to service connection for other pulmonary 
disorders, including chronic obstructive pulmonary disease, 
asthma, bronchitis, and emphysema.

4.  Entitlement to service connection for a constricted 
larynx.

5.  Entitlement to compensation under 38 U.S.C.A. § 1151 
(West 2002) for additional disability following a stress test 
at a VA medical facility in June 1983.




REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARINGS ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The veteran served on active duty from July 1943 to April 
1946.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 2000 decision of the Reno, 
Nevada, Regional Office (RO) of the Department of Veterans 
Affairs (VA) which denied entitlement to service connection 
for a pulmonary disorder due to the use of tobacco products, 
entitlement to service connection for asbestosis, entitlement 
to service connection for other pulmonary disorders including 
chronic obstructive pulmonary disease, asthma, bronchitis, 
and emphysema as well as entitlement to service connection 
for a constricted larynx.  In June 2002, the veteran 
testified at a personal hearing before a Decision Review 
Officer.  In May 2003, the Board remanded the appeal to the 
RO to provide the veteran with a hearing before a Veterans 
Law Judge.  Thereafter, the veteran perfected an appeal to an 
October 2002 RO decision that denied compensation under 38 
U.S.C.A. § 1151 for additional disability due to a myocardial 
infarction following a stress test at a VA medical facility 
in June 1983.  In January 2004, the veteran and his wife 
testified at a hearing before the undersigned sitting at the 
RO.

The appeal is REMANDED, in part, to the RO via the Appeals 
Management Center (AMC), in Washington, DC.  VA will notify 
you if further action is required on your part.


FINDING OF FACT

The veteran filed his claim of entitlement to service 
connection for a pulmonary disorder due to the use of tobacco 
products in November 1999.


CONCLUSION OF LAW

The claim of entitlement to service connection for a 
pulmonary disorder due to the use of tobacco products is 
legally insufficient.  38 U.S.C.A. §§ 1103, 1110, 5103, 
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.300, 3.303, 3.307, 
3.309, 3.312 (2003).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board notes that a review of the record on appeal shows 
that the veteran, in November 1999, filed his initial claim 
of entitlement to service connection for a pulmonary 
disorder.  Thereafter, the veteran and/or his representative 
argued, in substance, that smoking that began while the 
veteran was in military service caused current pulmonary 
disorders.  Accordingly, the claim was thereafter interpreted 
by the RO and the Board as including a claim for pulmonary 
disorders caused by the use of tobacco products.  

In this regard, the Board notes that on July 22, 1998, the 
Internal Revenue Service Restructuring and Reform Act was 
enacted.  See Pub. L. No. 105-206, 112 Stat. 865 (1998).  
That law added 38 U.S.C.A. § 1103, which prohibits service 
connection for disability or death on the basis that it 
resulted from disease or injury attributable to the use of 
tobacco products during a veteran's active service.  By its 
terms, 38 U.S.C.A. § 1103 is applicable to all claims filed 
after June 9, 1998.  See also 38 C.F.R. § 3.300 (2003).  

In this case, the veteran filed his claim in November 1999.  
See November 1999 statement in support of claim.  
Accordingly, the claim entitlement to service connection for 
a pulmonary disorder due to the use of tobacco products is 
precluded as a matter of law and must be denied.  See Sabonis 
v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not 
the evidence is dispositive, the Board should deny the claim 
on the ground of lack of legal merit). 

(Parenthetically, the Board notes that, while VAOPGCPREC 6-
2003 (October 28, 2003) provides an exception to the above 
bar to post June 9, 1998, claims based on tobacco use, this 
exception is not applicable to the veteran's appeal because 
neither the veteran nor his representative allege, nor does 
the record show, that the veteran's post-service use of 
tobacco products was caused by his only service connected 
disability - hypertrophied tonsils status post 
tonsillectomy.)

As to the Veterans Claims Assistance Act of 2000, Pub. L. No. 
106-475, 114 Stat. 2096 (2000), as reported above, the claim 
was denied because the veteran did not meet the statutory 
threshold for filing a claim of entitlement to service 
connection on the basis of tobacco use in service - a claim 
filed before June 9, 1998.  38 U.S.C.A. § 1104; 38 C.F.R. 
§ 3.300.  Therefore, because the decision is mandated by a 
failure to meet a basic prerequisite, the Board may go 
forward with adjudication of the claim regardless of whether 
or not the record shows adequate notice and assistance as 
required by the Veterans Claims Assistance Act of 2000.  See 
38 U.S.C.A. §§ 5103, 5103A (West 2002); Mason v. Principi, 
16 Vet. App. 129, 132 (2002).  Further discussion of the VCAA 
is not required.


ORDER

Service connection for a pulmonary disorder due to the use of 
tobacco products is denied.


REMAND

As to entitlement to service connection for various pulmonary 
disorders due to asbestosis, and a constricted larynx, the 
veteran and his representative claim that they were caused by 
the veteran inhaling asbestos as well as other toxic 
chemicals while serving on Naval vessels as a gunners mate.  
Specifically, it is alleged the veteran was exposed to these 
chemicals through the asbestos gloves he wore to clean up hot 
shell casings, from breathing air below deck via air ducts 
that admitted particles, and by the work he did 
decommissioning two Naval ships.  As to the § 1151 claim, the 
veteran and his representative contend that the appellant's 
June 1983 stress test was improperly conducted and caused a 
myocardial infarction.  It is also requested that the veteran 
be afforded the benefit of the doubt. 

Initially, the Board notes that the Veterans Claims 
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 
2096 (2000) requires that VA provide a medical examination 
or, obtain a medical opinion, when such an examination or 
opinion is necessary to make a decision on the claim.  
38 U.S.C.A. § 5103A(d) (West 2002).  

Next, the Board notes that the record on appeal contains 
voluminous VA treatment records that show the veteran's 
complaints, diagnoses, and/or treatment for various pulmonary 
disorders diagnosed as, among other things, chronic 
obstructive pulmonary disease, asthma, bronchitis, and/or 
emphysema.  Nonetheless, a remand is required because these 
records do not contain credible medical opinion evidence as 
to the following:  an opinion as to whether the veteran has 
current x-ray evidence of asbestosis (see VA Adjudication 
Procedure Manual (M21-1), Part VI, par. 7.21(c) (a clinical 
diagnosis of asbestosis requires a history of exposure and 
radiographic evidence of parenchymal lung disease)); an 
opinion as to the origins or etiology of asbestosis taking 
into account both his in-service and post-service job history 
(id.); an opinion as to the origins or etiology of all other 
pulmonary disorders; an opinion as to whether the veteran has 
a chronic constricted larynx due to military service; and, 
because the claim was filed on or after October 1, 1997, an 
opinion as to whether the veteran had additional disability, 
including a myocardial infarction, following his June 1983 
stress test caused by VA negligence or an unforeseen event 
(see Pub. L. No. 104-204, § 422(a), 110 Stat. 2926 (1996); 
See also VAOPGCPREC 40-97; 63 Fed. Reg. 31263 (1998)).  

As to the veteran's claim for a pulmonary disorder due to 
asbestos exposure, the Board notes that the M21-1 requires 
that the RO undertake the following development: (1) 
determine whether military records demonstrate evidence of 
asbestos exposure in service (see M21-1, Part III, par. 
5.13(b); M21-1, Part VI, par. 7.21(d)(1)); (2) determine 
whether there was pre-service and/or post-service evidence of 
occupational or other asbestos exposure (Id.); and (3) 
determine if there was a relationship between asbestos 
exposure and the currently claimed disease, keeping in mind 
the latency and exposure information found at M21-1, Part 
III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1)).  

As to all the issues on appeal, the Board notes that the VCAA 
requires VA to notify the claimant and his representative of 
any information, and any medical or lay evidence, not 
previously provided to the Secretary, that is necessary to 
substantiate the claim.  See 38 U.S.C.A. § 5103 (West 2002); 
38 C.F.R. § 3.159(b) (2003).  Specifically, VA is to: (1) 
notify the claimant of the information and evidence not of 
record that is necessary to substantiate the claim; (2) 
notify him of the information and evidence that VA will seek 
to provide; (3) notify him of the information and evidence 
the claimant is expected to provide; and (4) tell the 
claimant to provide any evidence in his possession that 
pertains to the claim.  38 U.S.C.A. §§ 5100, 5103 (West 
2002); 38 C.F.R. § 3.159 (2003).  

Therefore, while the RO made a good start in undertaking the 
necessary asbestos development and providing the veteran with 
the requisite VCAA notice in its April 2001, February 2002, 
February 2002, and May 2003 letters as well as the August 
2002, October 2002, and January 2004 supplemental statements 
of the case, and the July 2003 statement of the case, on 
remand, they should continue to do so. 

Lastly, the Board notes that the VCAA requires VA to obtain 
and associate with the record all adequately identified 
records.  See 38 U.S.C.A. § 5103A(b) (West 2002).  

In this regard, the veteran testified that he helped in the 
decommissioning of two Naval vessels (i.e., the USS Welles 
(DD628) and USS Boyle (DD600)) which work led to his exposure 
to asbestos while disassembling the armament on these ships 
as well as exposure to other chemical that were sprayed on 
the ships to help seal them.  Moreover, service personnel 
records show that the veteran served aboard the USS Welles 
from July 1944 to February 1946 and aboard the USS Boyle from 
February 1946 to March 1946.  The veteran's service personnel 
records also note he was a gunners mate.  Moreover, M21-1, 
Part VI, par. 7.21(b)(1) (October 3, 1997) (hereinafter M21-
1) includes in its non-exclusive list of occupations that 
have higher incidents of asbestos exposure shipyard work.  
Therefore, a remand is also required for VA to verify the 
nature of the veteran's shipboard duties and to verify if the 
veteran served on the ships at the time of their 
decommissioning.  

Similarly, while the veteran testified that chest x-rays in 
the 1950's in connection a life insurance examination from 
Prudential showed scarring, VA has not as yet provided the 
veteran help in obtaining these records.  Likewise, while the 
veteran notified VA on a number of occasions that he received 
all of his medical care from VA, a review of the record on 
appeal fails to disclose any medical records from the years 
shortly after his April 1946 separation from military service 
- the medical evidence found in the claims file begins in the 
mid 1980's.  The veteran also testified that he received 
ongoing treatment for his pulmonary disorders at either the 
Las Vegas or Hines VA medical centers which records have not 
as yet been associated with the claims file.  Furthermore, 
while the veteran's post-service work history is crucial to 
his claim of entitlement to service connection for asbestosis 
(see M21-1, Part VI, par. 7.21(c)), the record does not 
contain documentation of his post-service work history or 
request for records from these employers.  Therefore, on 
remand, the RO should obtain and associate with the record 
the above evidence.

Therefore, these issues are REMANDED for the following 
action:

1.  The RO must review the claim's file 
and ensure that all M21-1 development 
obligations and VCAA notice obligations 
have been satisfied in accordance with 
M21-1, Part VI, par. 7.21(a), (b), (c), 
(d)(1), and (d)(3) (October 3, 1997); 
M21-1, Part III, par. 5.13(b) (April 30, 
1999); the decision in Quartuccio; 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A; 
38 C.F.R. § 3.159; the Veterans Benefits 
Act of 2003; and any other applicable 
legal precedent.  As to the M21-1 
development, such development includes, 
but is not limited to, the following 
actions:  (1) determining whether 
military records demonstrate evidence of 
asbestos exposure in service; (2) 
determining whether there was pre-service 
and/or post-service evidence of 
occupational or other asbestos exposure; 
and (3) determining if there is a 
relationship between asbestos exposure 
and the currently claimed disease, 
keeping in mind the latency and exposure 
information found at M21-1, Part III, 
par. 5.13(a).  As to the VCAA notice, 
such notification includes, but is not 
limited to, notifying the veteran of the 
specific evidence needed to substantiate 
the claims of entitlement to service 
connection for asbestosis, other 
pulmonary disorders including chronic 
obstructive pulmonary disease, asthma, 
bronchitis, and emphysema as well as 
entitlement to service connection for a 
constricted larynx and § 1151 benefits.  
The letter must: (1) notify the claimant 
of the information and evidence not of 
record that is necessary to substantiate 
the claims; (2) notify him of the 
information and evidence that VA will 
seek to provide; (3) notify him of the 
information and evidence the claimant is 
expected to provide; and (4) request he 
provide all pertinent evidence in his 
possession that has yet to be submitted 
to VA.  

2.  The RO should contact the National 
Personnel Records Center and request a 
copy of the veteran's complete service 
personnel record, including a statement 
of the duties performed by someone with 
his occupational specialty.

3.  The RO should contact the Navy and, 
after obtaining the dates of 
decommissioning for the USS Welles 
(DD628) and USS Boyle (DD600), obtain the 
deck logs for this time period in order 
to verify that the veteran served on 
these ships during this time.

4.  The RO, after obtaining an 
authorization from the veteran, should 
contact Prudential and request a copy of 
the life insurance examination conducted 
in the 1950's, including a copy of the 
chest x-ray report.  If any of the 
requested records are not available, or 
if the search for any such records 
otherwise yields negative results, that 
fact should clearly be documented in the 
claims file, and the veteran notified in 
writing.

5.  The RO should contact the veteran and 
ask him to identify the name, address, 
and approximate (beginning and ending) 
dates of all employers he worked for 
since his separation from military 
service in April 1946 and the nature of 
his duties at each of those jobs.  The 
veteran should also be asked in any of 
the above employers have any records that 
would be relevant to his current claims.  
Thereafter, after obtaining any necessary 
authorization(s), the RO should request 
all identified records.  If any of the 
requested records are not available, or 
if the search for any such records 
otherwise yields negative results, that 
fact should clearly be documented in the 
claims file, and the veteran notified in 
writing.

6.  The RO should contact the veteran and 
ask him to identify the name, address, 
and approximate (beginning and ending) 
dates of all VA and non-VA health care 
providers that treated him for pulmonary 
disorders and/or a constricted larynx for 
the time period from his April 1946 
separation from military service to the 
mid 1980's and residuals of a the stress 
test since June 1983.  The RO should 
inform the veteran that VA will make 
efforts to obtain relevant evidence, such 
as VA and non-VA medical records, 
employment records, or records from 
government agencies, if he identifies the 
custodians thereof.  Obtain all records 
identified by the veteran that have not 
already been associated with the claims 
file, including all yet to be obtained 
contemporaneous treatment records of his 
from the Las Vegas and Hines VA medical 
centers.  The aid of the veteran in 
securing all identified records, to 
include providing necessary 
authorization(s), should be enlisted, as 
needed.  If any of the requested records 
are not available, or if the search for 
any such records otherwise yields 
negative results, that fact should 
clearly be documented in the claims file, 
and the veteran notified in writing.

7.  After associating with the record all 
evidence obtained in connection with the 
above development (to the extent 
possible), the RO should make 
arrangements with the appropriate VA 
medical facility for the veteran to be 
afforded a pulmonary examination.  The 
claims file should be made available to 
the examiner.  All necessary testing, 
including chest x-rays and a pulmonary 
function test, should be conducted as 
needed.  Based on a review of the claims 
folder and the examination of the 
veteran, the examiner should provide 
answers to the following questions:

a.  Asbestosis:

i.  Is there current x-ray evidence 
of asbestosis?  See M21-1, Part VI, 
par. 7.21(c) (a clinical diagnosis 
of asbestosis requires a history of 
exposure and radiographic evidence 
of parenchymal lung disease.

ii.  If so, is it as least as likely 
as not that currently diagnosed 
asbestosis was incurred during 
military service?

b.  Other Pulmonary Disorders:

i.  Is there current evidence of 
chronic obstructive pulmonary 
disease, asthma, bronchitis, and/or 
emphysema?

ii.  If so, is it as least as likely 
as not that any of the currently 
diagnosed pulmonary disorders were 
incurred in or aggravated by 
military service?

Note 1:  In answering the above 
questions, the examiner should comment on 
the veteran's in-service and post-service 
work histories, the two normal in-service 
chest x-rays, the post-service x-rays, 
and the December 2003 opinion provided by 
Dr. Michael D. Schlachter.

8.  After associating with the record all 
evidence obtained in connection with the 
above development (to the extent 
possible), the RO should make 
arrangements with the appropriate VA 
medical facility for the veteran to be 
afforded an ears, nose, and throat 
examination.  The claims file should be 
made available to the examiner.  All 
necessary testing should be conducted.  
Based on a review of the claims folder 
and the examination of the veteran, the 
examiner should provide answers to the 
following question:

a.  Constricted Larynx:

i.  Is there current evidence of a 
chronic constricted larynx?

ii.  If so, is it as least as likely 
as not that it was incurred in or 
aggravated by military service?

9.  After associating with the record all 
evidence obtained in connection with the 
above development (to the extent 
possible), the RO should make 
arrangements with the appropriate VA 
medical facility for the veteran's claims 
file to be reviewed by a cardiologist.  
Based on a review of the claims folder, 
the examiner should provide answers to 
the following questions:

i.  Did the veteran have a 
myocardial infarction following the 
June 1983 stress test?

ii.  Did the veteran have any other 
additional disability as a result of 
the June 1983 stress test?

iii.  If so, was the myocardial 
infarction or other additional 
disability caused by VA negligence 
or an unforeseen event?

10.  After the development requested 
above has been completed, the RO should 
review the examination report and opinion 
to ensure that they are in complete 
compliance with the directives of this 
REMAND.  If they are deficient in any 
manner, the RO must implement corrective 
procedures at once.

11.  Thereafter, following any other 
appropriate development, the RO should 
readjudicate the appealed issues.  If any 
of the benefits sought on appeal remain 
denied, he and his representative should 
be provided a supplemental statement of 
the case which includes a summary of all 
evidence submitted in connection with the 
claims, applicable laws and regulations, 
and the reasons for the decision.  They 
should then be afforded an applicable 
time to respond.

The veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the Court for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans' Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West 2002) (Historical and 


Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.43 and 
38.02.




	                     
______________________________________________
	LAWRENCE M. SULLIVAN 
	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