Citation Nr: 0432178 Decision Date: 12/03/04 Archive Date: 12/14/04 DOCKET NO. 03-35 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than February 6, 2003, for a grant of service connection for bilateral hearing loss. 2. Entitlement to an effective date earlier than February 6, 2003, for a grant of service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saramae M. Kreitlow, Associate Counsel INTRODUCTION The veteran served in the Naval Reserves from January 1940 to November 1941, with periods of active duty from July 27, 1940, to August 9, 1940, and from September 4, 1940, to October 29, 1941. He then served in the Army from April 1942 to July 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for bilateral hearing loss and tinnitus and established the effective date as February 6, 2003. In addition, the RO denied reopening of the veteran's claim for service connection for astigmatism (claimed as vision condition) on the basis that new and material evidence had not been submitted. A Notice of Disagreement (NOD) was received from the veteran in April 2003, disagreeing with the effective date. A NOD was received from the veteran's representative in May 2003, regarding the timeliness of the veteran's appeal to a prior rating decision in December 2001 that had denied service connection for hearing loss and tinnitus. A Statement of the Case was issued in November 2003, and a timely appeal was received later that month. In June 2004, the Board remanded the case for the purpose of holding a video conference hearing at the RO, as requested by the veteran. In November 2004, a video conference hearing was held with the veteran before the undersigned Acting Veterans Law Judge. The case is advanced on the docket due to the veteran's age. As discussed in more detail below, the Board finds that the veteran filed a notice of disagreement on the RO's denial to reopen his claim for service connection for astigmatism (claimed as vision condition), thereby initiating, but not perfecting, an appeal. This issue is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. On February 14, 2001, VA received the veteran's claims for service connection for hearing loss and tinnitus. 2. In a December 2001 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus, and notified the veteran of that determination that same month. 3. On January 7, 2002 and September 4, 2002, the RO received the veteran's requests for a hearing on his claims. 4. The RO did not take any action on the veteran's requests for a hearing until January 8, 2003, at which time a hearing was scheduled for February 2003. 5. The veteran believed that his requests for a hearing in January 2002 and September 2002 were sufficient to express his disagreement with the December 2001 rating decision and to initiate the appeal process. CONCLUSIONS OF LAW 1. The December 2001 rating decision was not final as a timely NOD as to the denial of service connection for bilateral hearing loss and tinnitus was filed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201, 20.302 (2003); 38 C.F.R. § 3.102, 3.103 (2004). 2. An effective date of February 14, 2001, for service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.102, 3.400 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act Initially, the Board notes that VA has a duty to assist the veteran in the development of facts pertinent to his claims. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). VA has a duty to notify the appellant and his representative, if any, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2004). VA also has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004). The Board finds that the Department's duties to notify and assist the veteran have been fully satisfied. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In light of the favorable decision contained herein, that is, the granting of the claim, it is clear that sufficient evidence was developed in this case in this respect. II. Factual Background In February 2001 the veteran filed claims for service connection for a vision condition and bilateral hearing loss. In December 2001, the RO denied these claims. On January 7, 2002, the RO received a letter from the veteran requesting the RO to schedule a personal hearing on his claim per VA's letter dated December 21, 2001. (Said letter is the rating decision transmittal letter and is actually dated December 20, 2001.) The RO did not respond in any manner to this request. On September 4, 2002 the RO received another letter from the veteran again requesting that a hearing be scheduled on his claim. The RO again did not respond to this letter. At the same time the veteran submitted his second request for a hearing, he also sent letters to Congressman Dave Weldon and President George W. Bush asking for their assistance with his VA claim. On October 31, 2002, the Office of Agency Liaison in the Executive Office of the President forwarded to VA the veteran's letter sent to President Bush. The VA Central Office forwarded the notification to the St. Petersburg, Florida, RO, requesting it prepare a response. On January 8, 2003, the RO sent a letter to the veteran in response to his letter to President Bush, indicating that a hearing had been scheduled for him in February 2003. On January 16, 2003, the RO sent the veteran a notification that a hearing had been scheduled in connection with his claims for February 18, 2003. On February 6, 2003, the veteran's representative submitted a request that the February 18, 2003, hearing be postponed until the veteran could undergo a C & P examination and professional medical opinion regarding bilateral hearing loss and tinnitus. The RO granted the request, but an informal conference was held between the Decision Review Officer (DRO) and the veteran's representative on February 7, 2003. On February 25, 2003, the veteran underwent a C & P examination for bilateral hearing loss and tinnitus. As a result of that examination, the RO granted service connection for bilateral hearing loss and tinnitus in a March 2003 rating decision. The RO established the effective date to be February 6, 2003. The RO based its selection of this effective date on the basis that the December 2001 rating decision was a final decision because no NOD was filed within the one-year time limitation and this was the date VA received the veteran's claim to reopen. In April 2003, the veteran filed a Notice of Disagreement (NOD) with the effective date established in the March 2003 rating decision, claiming that it should be February 1, 2001, the date his original claim was made. In May 2003, the veteran's representative submitted a NOD on the veteran's behalf as to the timeliness of appeal, claiming that the veteran's January 7, 2002, request for hearing should have been treated as a NOD with the December 2001 rating decision. The veteran's representative also claimed an earlier effective date of February 14, 2001, the date VA received the veteran's original claim for bilateral hearing loss and tinnitus. In May 2003, the veteran also submitted a statement in support of his claim for an earlier effective date, stating that he asked for a hearing on January 7, 2002, because he wanted to keep the claim open. The RO issued a Statement of the Case (SOC) in November 2003, denying the veteran's claim for an earlier effective date because the veteran did not submit a Notice of Disagreement within one year after the December 2001 rating decision was issued. The RO concluded that the veteran's January 7, 2002, request for hearing did not meet the requirements for consideration as a NOD and, therefore, the December 2001 rating decision became final on December 20, 2002. The RO maintained that it received the veteran's request to reopen his service connection claim for bilateral hearing loss on February 6, 2003, and, under the applicable law, this is the earliest date that can be assigned. The veteran perfected his appeal for an earlier effective date for service connection of bilateral hearing loss and tinnitus in November 2003. On an appeal hearing options form, the veteran requested a video conference hearing before a Board member at the RO. Before the video conference hearing could take place, the RO transferred the veteran's file to the Board. In June 2004, the Board remanded the case to the RO for the scheduling of the requested video conference hearing. In November 2004, a video conference hearing was held before the undersigned Acting Veterans Law Judge. At the hearing, the veteran testified that he believed that his letter requesting a hearing after the issuance of the December 2001 rating decision was an appeal or a notice of disagreement with the rating decision and that he assumed that writing the RO and requesting a hearing was the same as saying he did not agree with its decision. He testified that nobody from VA contacted him and told him that his letter was not correct to appeal the rating decision or that he was not scheduled for a hearing because he did not have an appeal pending. III. Analysis The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2004). Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. Applicable regulatory and statutory provisions stipulate that the effective date for an award of service connection based on a claim reopened after final disallowance will be the date of receipt of the application to reopen, or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(r); see also 38 U.S.C.A. § 5110(a) Pursuant to 38 C.F.R. § 20.302 (2003), a NOD must be filed within one year from the date that the agency of original jurisdiction mails notice of the determination to the claimant. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. See 38 C.F.R. § 20.302(a). If no NOD is filed within the time limit provided, the determination becomes final. 38 U.S.C.A. § 7105(c) (West 2002). A NOD is a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (2003). Hearing testimony before the RO, when reduced to writing, can constitute a NOD. Tomlin v. Brown, 5 Vet. App. 355 (1993). The veteran contends that his January 7, 2002, letter, being submitted shortly after the issuance of the December 2001 rating decision, should be construed as a NOD. The veteran's letter in its entirety says: "I would like you to set up A Personal Hearing on my claim per your letter dated Dec. 21, 2001." Nothing within the text of the veteran's letter indicates that he disagrees or is dissatisfied with the December 2001 rating decision. The veteran argues that his disagreement should be implied because he submitted the request for a hearing within three weeks after the issuance of the rating decision. Although under certain circumstances such an implication may be made, the Board cannot do so in the present case. Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim. 38 C.F.R. § 3.103(c)(1) (2004). The purpose of the hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. 38 C.F.R. § 3.103(c)(2). Given the veteran's right to have a hearing at any time, a more reasonable interpretation of the veteran's January 2002 letter is that he desired to submit additional evidence in support of his claims. Therefore, the Board finds that the January 2002 letter does not constitute a NOD as to the denial of service connection for bilateral hearing loss and tinnitus. Likewise, the veteran's September 2002 letter also does not specifically state any disagreement with the December 2001 rating decision's denial of service connection for bilateral hearing loss and tinnitus. It reiterates the veteran's request for a personal hearing on his claims and then proceeds to take issue with certain entries in his service medical records relating to his vision condition. Although the letter makes it clear that the veteran is unhappy with the delay in scheduling a personal hearing, it does not contain any language that can be construed as dissatisfaction or disagreement with the December 2001 rating decision's denial of service connection for hearing loss and tinnitus. Therefore, the September 2002 letter also does not constitute a NOD on these issues. In September 2002, a letter that the veteran sent to Congressman Dave Weldon was forwarded to VA. In this letter, the veteran expressed dissatisfaction with VA's denial of his claim for service connection for his visual problems, but did not express any disagreement or dissatisfaction with regard to the denial of his claim for service connection for bilateral hearing loss. This letter therefore does not constitute a NOD regarding the denial of service connection for bilateral hearing loss and tinnitus issued in the December 2001 rating decision. In October 2002, a letter that the veteran sent to President George W. Bush was forwarded to VA. Like the letter to Congressman Weldon, this letter only expressed the veteran's dissatisfaction with VA's decision on his vision condition, and therefore it cannot constitute a NOD with the RO's denial of service connection for bilateral hearing loss and tinnitus. No other correspondence from the veteran was received prior to December 20, 2002, the expiration of the one-year time limit for filing a NOD as to the December 2001 rating decision. Although the Board finds that a NOD was not filed within the one-year time limit required by 38 U.S.C.A. § 7105(c), this does not end the Board's inquiry. The Board will consider whether the principles of fairness and equity apply to the veteran's claim for an earlier effective date. As discussed above, the veteran has a right to request a hearing at any time during the claims process. Pursuant to VA's procedure manual, when a post-decision hearing request has been made but a NOD has not been filed, the RO is required to schedule a hearing within a reasonable amount of time from the date the request is received. See M21-1MR, Part I, Ch. 4, § 3 (a) and (b); M21-1, Part IV, Ch. 35 (Change 136, June 4, 2001). A post-decisional hearing is held before a DRO or another authorized individual, such as the Veterans Service Center Manager. See M21-1MR, Part I, Ch. 4, § 1 (e). If, during the course of the hearing, the claimant or his/her representative expresses disagreement with the previously rendered decision, the DRO is responsible for preparing both his/her decision and a statement of the case if the benefit sought is not fully granted. See M21- 1MR, Part I, Ch. 4, § 5 (c); M21-1, Part IV, Ch. 35 (Change 197, Apr. 5, 2004). In the present case, the RO did not take any action to schedule a hearing on the veteran's claim until January 8, 2003, outside the one-year time limitation for filing a NOD. The Board finds this one-year delay in scheduling a hearing for the veteran was unreasonable. Even more egregious is that the RO continuously ignored the veteran's request for a hearing even after his second letter and Congressman Weldon's correspondence were submitted in September 2002. It was not until the Office of Agency Liaison from the Executive Office of the President forwarded the veteran's letter to President Bush that a hearing was scheduled, and it still took the RO over two months to respond to that letter. Had the RO scheduled a hearing in a timely fashion, the Board believes the veteran would have expressed his disagreement with the December 2001 rating decision at the hearing (as he did at the November 2004 hearing before the Board), where his testimony, reduced to writing in the hearing transcript, would have constituted a timely NOD. See Tomlin, supra; M21- 1, Part IV, § 8.05(a)(1) (Change 143, Oct. 11, 2001). In addition to failing to schedule a hearing within a reasonable time, the RO failed to respond in any manner to the veteran's correspondence for over a year. The RO made no attempt to clarify the reasons for the veteran's request for a hearing or to determine whether the veteran's letter was intended as a disagreement with the December 2001 rating decision. Especially after the veteran's September 2002 letter, the RO should have made an effort to contact the veteran because of his complaints. See M21-1, Part IV, § 8.05(a)(2). Had the RO made such an inquiry, the Board believes the veteran would have expressed his disagreement with the December 2001 rating decision and the RO could have then informed him that he needed to file a NOD by December 20, 2002. In appropriate circumstances, a statutory filing period may be equitably tolled due to the conduct of VA. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998). Equitable tolling is available where the claimant has actively pursued his judicial remedies but has filed a defective pleading during the statutory period, or where a claimant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Jaquay v. Principi, 304 F.3d 1276, 1282-83 ( Fed. Cir. 2002). The Federal Circuit specifically held in Bailey that equitable tolling in the paternalistic veterans' benefits context does not require misconduct (such as trickery); however, Bailey does require the appellant to have been "misled by the conduct of his adversary into allowing the filing deadline to pass." Bailey, 160 F.3d at 1365; see also (William) Smith v. West, 13 Vet. App. 525 (2000). There must be a cause and effect, i.e., the complainant relied to his/her detriment on something that VA did (or should have but did not do). See Cintron v. West, 13 Vet. App. 251, 257 (1999), citing Bailey, 160 F.3d at 1364. In order for the time limit for appealing a VA decision to be extended based upon the doctrine of equitable tolling, the veteran must have exercised due diligence in pursuing an appeal. See Santoro v. West, 13 Vet. App. 516 (2000). The Board finds this case to be an appropriate situation to apply the doctrine of equitable tolling to extend the period of time that the veteran had to file a NOD. The veteran's due process and VCAA rights were violated by the RO's failure to schedule a hearing within a reasonable time, and its failure to follow up on the veteran's requests and complaints. The veteran relied upon VA to take appropriate action on his requests for a hearing. When that did not happen, he sought outside assistance from his congressman and President Bush. The veteran, therefore, diligently pursued what he believed was his appeal, however mistaken that belief was. His reliance upon VA was to his detriment because the RO failed to act in accordance with VA's regulations and policies. The RO's failure to do so caused the veteran to fail to submit a NOD within the statutory time period. The Board finds that but for the RO's failure to comply with VA's regulations and policies, the veteran would have filed a timely NOD. Therefore, applying the doctrine of equitable tolling, the Board finds that the December 2001 rating decision was not final and the veteran filed a timely NOD on February 6, 2003, which was when the RO received a statement from his representative. The Board also notes from the veteran's November 2004 testimony that he relied upon VA to provide him with assistance in processing his claim and appeal. "[A]ll claims for benefits are instances 'where the interests of justice require vindication of the [veteran's] rights.'" Jaquay, 204 F.3d at 1284. As the Federal Circuit also noted in Jaquay, "[i]n the context of the non-adversarial, paternalistic, uniquely pro-claimant veterans' compensation system, . . . the availability of equitable tolling . . . should be interpreted liberally with respect to filings during the non-adversarial stage of the veterans' benefits process." Id. at 1286. Such is exactly the case here, and the Board finds that these principles require a finding in the present case in favor of the veteran. Therefore, the Board will consider the February 6, 2003, filing by the veteran's representative as a timely NOD to the December 2001 denial of these claims, with consideration of equitable tolling of the appeal period, as discussed above. That means when the claims were ultimately granted, they stemmed from the claim filed by the veteran in February 2001. That claim is not date stamped with date of receipt, but there is a handwritten notation of February 14, 2001. That is the date requested by the veteran's representative to be recognized as date of receipt of claim. The Board agrees and hereby awards an effective date of February 14, 2001, for the grant of service connection for hearing loss and tinnitus. ORDER Entitlement to an effective date of February 14, 2001, for service connection for bilateral hearing loss and tinnitus is granted. REMAND The Board must consider all documents submitted prior to its decision and review all issues reasonably raised from a liberal reading of these documents. Suttmann v. Brown, 5 Vet. App. 127, 132 (1993). Where such review reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue or, if appropriate, remand the issue to the RO for development and adjudication; however, the Board may not ignore an issue so raised. Id. The veteran filed a claim for service connection for both a vision condition and bilateral hearing loss. In its December 2001 rating decision, the RO denied reopening the veteran's claim for service connection for astigmatism (claimed as vision condition). The veteran's September 2001 letter discusses the veteran's service medical records and errors that he believes they contain with regard to his visual condition. A liberal reading of this letter would indicate that the veteran disagrees with the RO's determination that his visual condition was not related to his service. In addition, the veteran sent letters to Congressman Dave Weldon and President George W. Bush which were forwarded to VA in September 2002 and October 2002, respectively, and both requested assistance with VA with regard to his claim for service connection for his visual condition. It is clear, therefore, that the veteran's statements in these letters are sufficient to constitute a Notice of Disagreement (NOD) with the RO's denial to reopen his claim for service connection for astigmatism. The veteran, therefore, submitted a timely NOD with regard to his visual condition claim. However, the statement of the case (SOC) issued in November 2003 only addressed the earlier effective date for service connection for bilateral hearing loss and tinnitus. The veteran's NOD as to the denial to reopen the veteran's claim for service connection for astigmatism is still pending. It is proper to remand this claim because the veteran has not been provided a SOC on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, this claim is REMANDED for the following: Provide the veteran a statement of the case as to the issue of reopening of the veteran's claim for service connection for astigmatism. The veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b) (2003). If a timely substantive appeal is not filed, the claim should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is so informed. He has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. ____________________________________________ MICHELLE L. KANE Acting 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