Citation Nr: 0424187 Decision Date: 08/30/04 Archive Date: 09/07/04 DOCKET NO. 00-23 403 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a pulmonary disorder, claimed as a residual of asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from May 1942 to October 1945. This appeal to the Board of Veterans Appeals (Board) arises from August 1998 and December 1999 rating actions that denied service connection for a pulmonary disorder, claimed as a residual of asbestos exposure. A Notice of Disagreement was received in February 2000, and a Statement of the Case (SOC) was issued in October 2000. A Substantive Appeal was received in November 2000. In July 2001, the Board remanded this case to the RO for further development of the evidence and for due process development. A Supplemental SOC (SSOC) was issued in March 2003, reflecting the RO's continued denial of service connection for a pulmonary disorder, claimed as a residual of asbestos exposure. In August 2004, a Deputy Vice-Chairman of the Board granted the appellant's motion to advance this case on the Board's docket pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2003). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The preponderance of the competent medical evidence establishes that the veteran does not currently have a respiratory disorder that is the result of alleged exposure to asbestos during his naval service. CONCLUSION OF LAW The criteria for service connection for a pulmonary disorder, claimed as a residual of asbestos exposure, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In November 2000, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2003). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Having considered the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. In the August 1998 and December 1999 rating actions, the October 2000 SOC, the December 2000 RO letter, the August and November 2001 RO letters, the March 2003 SSOC, and the June 2004 RO letter, the veteran and his representative were variously notified of the law and regulations governing entitlement to the benefit sought on appeal, the evidence that would substantiate his claim, and the evidence that had been considered in connection with his appeal. After each, the veteran was afforded the opportunity to respond. Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support his claim, and has been provided ample opportunity to submit information and evidence. Additionally, the Board notes that in the October 2000 SOC, the August and November 2001 RO letters, and the March 2003 SSOC, the veteran was variously informed of what the evidence had to show to establish entitlement to the benefit he sought; what information or evidence VA still needed from him; what evidence VA had retrieved and considered in his claims; what evidence he had to furnish; what he had to do to obtain assistance from VA in connection with his appeal; and that VA would make reasonable efforts to help him get evidence necessary to support his claim, such as medical records, if he gave it enough information about such records so that it could request them from the person or agency that had them. In addition, an August 2001 RO letter specifically informed the appellant of the VCAA and its requirements, and notified him that he could help with his claim by informing VA of any additional information or evidence that he wanted it to try to obtain for him, where to send additional evidence or information concerning his appeal, and where he could request assistance if needed. Accordingly, the Board finds that the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and what evidence will be retrieved by VA has been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board points out that, in the recent decision of Pelegrini v. Principi, 18 Vet. App. 112 (2003), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify a claimant of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in his possession that pertains to the claim. As explained above, all of these requirements have been met in the instant case. However, Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after" VA receives a complete or substantially-complete application for VA benefits. In the case now before the Board, documents strictly meeting the VCAA's notice requirements were not provided, nor could they have been provided, prior to the original 1998 and 1999 rating actions on appeal that denied service connection, inasmuch as the VCAA was not enacted until late 2000. However, the Board finds that any lack of pre-adjudication notice in this case has not prejudiced the veteran in any way. As indicated above, in August 2001 the RO sent the veteran a letter explaining what was needed to substantiate a claim for service connection for a pulmonary disorder, claimed as a residual of asbestos exposure. As a result of the Board's remand and subsequent RO development, many VA and private medical records from 2001 to 2004, including a comprehensive November 2002 VA respiratory examination report, have been associated with the claims file and considered in evaluating the veteran's appeal. Moreover, after the Board and the RO specifically notified the veteran and his representative of the VCAA and its requirements in the July 2001 remand and August 2001 letter, respectively, the RO again adjudicated the claim in March 2003 (as reflected in the SSOC), and the veteran's representative responded with written argument in August 2004. Hence, the Board finds that any failure on the part of VA in not fulfilling all VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F. 3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2003). The Board also finds that all necessary development has been accomplished. The RO and the Board have made comprehensive efforts to assist the appellant in obtaining evidence necessary to substantiate his claim, as documented in the SOC, SSOC, and Board remand. As noted above, the RO has obtained many VA and private medical records through 2004 and associated them with the claims file. The veteran was afforded a comprehensive VA respiratory examination in November 2002. Significantly, neither the veteran nor his representative has identified, and the claims file does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Under these circumstances, the Board finds that adjudication of the claim for service connection for a pulmonary disorder, claimed as a residual of asbestos exposure, at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the veteran. The claim is ready to be considered on the merits. II. Background The veteran's service records, including medical records, are completely negative for findings or diagnoses of any respiratory disorder, or any indication of exposure to asbestos. Post service, April and November 1989 VA hospital records are completely negative for any indication of exposure to asbestos. April 1989 chest X-rays were within normal limits. After chest X-rays of the veteran in February 1997, R. Mezey, M.D., in March 1997 noted interstitial lung disease consistent with asbestos exposure/asbestos-related disease. On October 1997 evaluation of the veteran for asbestos- related disease, Dr. Mezey noted the veteran's history of ship and shipyard exposure to various asbestos insulation materials on a regular basis while in U.S. naval service from 1942 to 1945. After examination, the doctor noted that the veteran had the following evidence for pulmonary asbestosis: a history of significant exposure to asbestos; a latency period of greater than 15 years between the time of exposure and the development of signs and symptoms of asbestos-related disease; physical examination revealing bibasilar crackles; pulmonary function tests demonstrating reduced vital capacity; and chest X-rays showing small irregular opacities with an ILO profusion rating of 1/0, s/t. January 2001 chest X-rays of the veteran taken at the Pasco Regional Medical Center (PRMC) revealed few granulomas within the lungs, which demonstrated some emphysema. The impression was no acute cardiorespiratory disease. In mid-April 2001, the veteran was hospitalized at the PRMC with complaints of shortness of breath. Examination of the lungs showed some decreased breath sounds in both bases and a few crackles. There was no dullness or wheezing. Chest X- rays revealed acute interstitial pulmonary edema and cardiomegaly; the impression was findings of congestive failure with acute interstitial pulmonary edema. The diagnostic impressions included acute pulmonary edema, possible orthopnea, rule out cardiomyopathy, rule out acute myocardial infarction; and history of asbestosis, according to the veteran's wife. An April 2001 PRMC consultation report by A. Tun, M.D., indicated that the veteran had been admitted for the acute onset of respiratory distress, consistent with acute pulmonary edema. He was noted to be a very poor historian and had problems with recent and remote memory. His past medical history was reported to be significant for asbestosis. Current pulmonary examination revealed bilateral basal rales. The impressions included acute pulmonary edema of possible new onset, exact etiology unclear, rule out myocardial ischemia; reported history of asbestosis; and poor historian with problems with recent and remote memory. Pulmonary function tests taken in late April 2001 at the Tampa General Hospital revealed mild airflow obstruction. It was discovered that the veteran had pulmonary edema and had suffered a myocardial infarction. Cardiac catheterization revealed severe triple vessel coronary artery occlusive disease and severe left ventricular dysfunction. During his hospital course, he underwent a quadruple aortocoronary bypass graft and insertion of a pacemaker for what was diagnosed as a status-post myocardial infarction, unstable angina, and left ventricular failure due to ischemic cardiomyopathy and pulmonary edema. In early August 2001, the veteran underwent resection and grafting of an abdominal aortic aneurysm with an aortobifemoral bypass graft and repair of a bilateral iliac aneurysm at the Tampa General Hospital. On follow-up evaluation in late August 2001, Dr. Tun noted that the veteran's congestive heart failure (CHF) remained compensated on current medication. The lungs were clear. The impressions included recent abdominal aortic aneurysm repair with aortobifemoral bypass graft, including a bilateral iliac aneurysm; quadruple bypass surgery about 3 month ago; and asbestos lungs. In October 2001, the veteran was hospitalized at the PRMC for progressive CHF and acute pulmonary edema. Left ventricular systolic function remained severely depressed several weeks after bypass surgery. During his hospital course, he was evaluated regarding acute confusional states and chronic dementia. The lungs were clear, without rales or rhonchi. The discharge diagnoses included progressive CHF, acute pulmonary edema; coronary artery disease with status post quadruple bypass surgery a few months ago; persistent, severe left ventricular dysfunction without evidence of recovery from the bypass; underlying cardiomyopathy, probably non- ischemic; and dementia. On November 2002 VA respiratory examination, the veteran gave a history of exposure to asbestos in naval service from 1942 to 1945 while spraying insulation during construction work. He denied any further exposure to asbestos outside of that experienced in military service, and specifically denied post-service exposure to asbestos. On current examination, the chest was clear to auscultation bilaterally. Current chest X-rays showed no radiographic evidence of asbestosis. The examiner's review of the veteran's entire claims file included an April 2001 chest X-ray documenting CHF with pulmonary edema but no specific mention of any evidence of asbestosis. He found no documentation in the claims file of any chest X-ray or computerized tomography (CT) scan that documented evidence of asbestosis. Early May 2004 VA chest X-rays revealed a stable chest and no definite radiographic evidence of acute cardiopulmonary disease. Repeat X-rays in mid-May revealed no evidence of active disease or CHF. Repeat X-rays in June showed no change from mid-May. A chest CT scan revealed an irregular, non-specific spiculated mass in the left lower lobe, and other non-specific pleural parenchymal and nodular opacities. Subsequent evaluation indicated that the lung mass could not be biopsied. A past medical history including coronary artery disease status post myocardial infarction and 4-vessel bypass grafting, CHF, Alzheimer's dementia, and asbestos exposure was noted. On current examination, the chest was clear to auscultation bilaterally, and there were no wheezes or crackles. III. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that there is no statute specifically dealing addressing asbestos and service connection for asbestos- related diseases, nor has VA promulgated any specific regulations for these types of cases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21- 1"). In addition, a recent opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, VA must analyze the veteran's claim for service connection for a pulmonary disorder, claimed as a residual of asbestos exposure, under the established administrative protocols using the following criteria. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the U.S. Court of Appeals for Veterans Claims indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the its claim-development procedures). With these claims, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre- service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). In this case, the veteran claims service connection for a pulmonary disorder that is a residual of asbestos exposure during his naval service. However, the Board notes that there are no clinical findings of asbestosis, or even evidence of exposure to asbestos, during that period of service. Significantly, there also is no competent and probative evidence that the veteran currently has a pulmonary disorder that is a residual of asbestos exposure in service. While the record contains several histories of exposure to asbestos in service related reported by the veteran and his wife, that history is not a reliable indicator of the veteran's actual, in-service asbestos exposure. As indicated above, such assertion is not supported objectively, as the veteran's service records, including medical records, are completely negative for findings or diagnoses of any respiratory disorder and any indication of exposure to asbestos. The Board also points out that the record contains medical findings that the veteran is a poor historian due to memory problems related to dementia. Thus, the inaccurate history of exposure to asbestos in service may not serve as a reliable factual basis upon which a physician may diagnose interstitial lung disease consistent with asbestos exposure/asbestos-related disease, as Dr. Mezey did in 1997. The Board notes that as a medical opinion can be no better than the facts alleged by the veteran, an opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 179, 180 (1993). The only competent and persuasive evidence that addresses the question of whether the veteran currently suffers from a respiratory disorder that is related to exposure to asbestos in service is the opinion of the November 2002 VA examiner; that opinion squarely militates against the claim for service connection. As noted above, the VA physician reviewed the veteran's entire claims and found no documentation therein of any chest X-ray or CT scan that documented evidence of asbestosis, including the current chest X-ray. The Board finds the comprehensive 2002 VA respiratory examination report to be of great probative value and dispositive of the question of service connection, inasmuch as it was based on a thorough review of the entire claims file containing the veteran's documented service and post-service medical history and current examination of the veteran, and found no evidence that the veteran has or ever had exposure to asbestos or a respiratory disorder that was a result of such exposure. The Board finds that this medical opinion constitutes the only persuasive medical opinion on the issue before the Board. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board notes that, in arriving at his opinion, the 2002 VA physician properly considered the factors contained in DVB Circular 21-88-8 and M21-1. Moreover, the Board is satisfied that the RO has complied with its claim-development procedures, and considered whether military records demonstrated evidence of asbestos exposure during service; developed whether there was pre-service and/or post-service occupational or other asbestos exposure; and determined whether there is a relationship between alleged asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. The Board has considered the veteran's and his wife's assertions in connection with the claim on appeal. However, as a layman without appropriate medical training and expertise, neither is competent to render a probative opinion on a medical matter-such as whether the veteran currently suffers from a respiratory disability that is a result of exposure to asbestos during his military service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). In the absence of medical evidence of any exposure to asbestos, or asbestosis itself, in service or post service, and in view of the competent and persuasive medical evidence indicating that the veteran does not currently suffer from any respiratory disorder that is a result of such alleged exposure, the Board finds that the claim for service connection for a pulmonary disorder, claimed as a residual of asbestos exposure, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for a pulmonary disorder, claimed as a residual of asbestos exposure, is denied. ____________________________________________ JACQUELINE E. MONROE 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