Citation Nr: 0733910 Decision Date: 10/26/07 Archive Date: 11/07/07 DOCKET NO. 00-13 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to a compensable rating for residuals of an appendectomy. 3. Entitlement to a compensable rating for residuals of a fracture of the right hand. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active service from June 1956 to June 1961. This appeal comes to the Board of Veterans' Appeals (Board) from a March 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied service connection for asbestosis and denied compensable ratings for residuals of an appendectomy and residuals of a fracture of the right hand. The veteran requested a hearing. The RO notified the veteran in a letter to his last known address that a hearing before a Veterans Law Judge was scheduled for August 2002. The veteran failed to report for the hearing, although the notification letter has not been returned by the United States Postal Service as undeliverable. The veteran has not explained his failure to report nor has he requested rescheduling of the hearing. Under these circumstances, the Board deems the hearing request to be withdrawn. See 38 C.F.R. § 20.702(d) (2007). The Board remanded the case in October 2003 for further development. The case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. Asbestosis arose many years after active service. 2. Competent evidence links asbestosis to asbestos exposure during active service. 3. The residuals of appendectomy have been manifested throughout the appeal period by a healed slightly depressed appendectomy scar measuring 10 centimeters by 0.75 centimeter with adhesion to underlying tissue, and occasional burning and itching at the scar site. 4. The residuals of a right hand fracture are manifested by occasional pain on palpation with full grip strength. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the veteran, asbestosis was incurred during active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). 2. The criteria for a compensable rating for residuals of an appendectomy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2006); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7339 (2007). 3. The criteria for a compensable rating for residuals of a fracture of the right hand have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2006); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, Diagnostic Code 5225 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA must tell each claimant what evidence is needed to substantiate a claim, what evidence the claimant is responsible for obtaining and what evidence VA will obtain. 38 U.S.C.A. § 5103(a). VA has also told claimants to submit relevant evidence in their possession. 38 C.F.R. § 3.159(b) (2007). VA must tell a claimant the types of medical and lay evidence that the claimant could submit that is relevant to establishing disability. VA has notified the veteran of the information and evidence needed to substantiate his claims. VA provided notice letters in October 2002, March 2004, and in May 2006, which informed the veteran of what evidence is needed to substantiate the claims, what evidence he was responsible for obtaining, and what evidence VA would obtain. VA has met its duty to assist in obtaining any relevant evidence available to substantiate the claims. VA examination reports are associated with the claims files. All identified evidence has been accounted for to the extent possible. 38 U.S.C.A. § 5103A (b)-(d); see also 38 C.F.R. § 3.159(c). VA sent its first notice letter after the initial adverse decision. Thus a timing defect has occurred. In order to cure a timing defect, a compliant notice must be issued followed by the readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II). In this case, VA did comply. The Board remanded the case specifically for additional notice to the veteran. See also Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Following readjudication of the claim, the RO issued a supplemental statement of the case. VA provided the additional notices recommended by the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473, in May 2006. Thus, no unfair prejudice will result from the Board's handling of the matter at this time. Exposure to Asbestos The veteran has alleged exposure to asbestos while repairing vehicles and equipment during active service. His DD Form 214 reflects that he was trained as an equipment repairman. He has also claimed that he had no preservice or post service exposure to asbestos. He acknowledged post-service work with asbestos products, but with precautions taken to prevent exposure. A former employer has corroborated this fact. He submitted a medical treatise that indicates that mechanics who work with brakes and clutches bear a grave risk of exposure to dangerous levels of asbestos fibers and he submitted Federal guidelines on protecting such individuals from asbestos. There is no specific VA regulation directing development of a case where there is alleged exposure to asbestos, nor is there any presumption for service connection available for asbestosis. However, the Court has stressed that the Board must follow certain steps in adjudicating asbestos cases, including determining whether exposure has occurred. In McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993), the Court vacated a Board decision which had not addressed relevant considerations included in a VA circular on asbestos-related diseases. Similarly, in Ennis v. Brown, 4 Vet. App. 523, 527 (1993), the Court vacated a Board decision which had failed to analyze an asbestos-related claim in light of considerations discussed in Department of Veterans Benefits (DVB) Circular 21-88-8. See also Nolen v. West, 12 Vet. App. 347, 351 (1999); VAOPGCPREC 6-2000. However, DVB 21-88-8 was rescinded by VBA Manual M21-1, Part VI, Change 3, September 21, 1992, and its provisions were incorporated into VBA Manual M21-1, Part VI. Paragraph 7.21a of VBA Manual M21-1, Part VI, provides that asbestos fibers, when inhaled or swallowed, can produce fibrosis and tumors of the larynx, pharynx, lungs, gastrointestinal tract, and urogenital system. They can produce pleural effusions and pleural plaques. Persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. The risk of bronchial cancer is increased in current cigarette smokers who have asbestos exposure. About 50 percent of those with asbestosis will eventually develop lung cancer. The Board notes that lung cancer was recently diagnosed in the present case. Paragraph 7.21b of VBA Manual M21-1, Part VI, provides that certain occupations such as work in shipyards, insulation work, demolition of old buildings, and installation of military equipment involve exposure to asbestos. Significantly, the latent period between exposure and the development of disease varies from 10 to 45 or more years, and significant exposure may occur in as brief a period as a month or two, even for an indirect bystander. Paragraph 7.21c of VBA Manual M21-1, Part VI, provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs might include dyspnea on exertion, rales over the lower lobes, pulmonary function test impairment, and emphysema. Paragraph 7.21d.(1) of VBA Manual M21-1, Part VI, provides: When considering VA compensation claims, rating specialists must determine whether or not military records demonstrate evidence of asbestos exposure in service. Rating specialists must also assure that development is accomplished to determine whether or not there is preservice and/or post- service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. VAOPGCPREC 4-2000 includes the following guidance: The determinative issues in an asbestos-related claim would generally include a medical diagnosis and medical causation. For example, the asbestos- related diseases referenced in paragraph 7.21 of VBA Manual M21-1, Part VI, such as asbestosis, pleural effusions and fibrosis, pleural plaques, and mesothelioma of pleura or peritoneum, must first be medically diagnosed and then shown to be medically related to in-service exposure to asbestos. See Nolen, 12 Vet. App. at 351 (finding no medical-nexus evidence between the veteran's asbestosis and his service exposure). Therefore, although a claimant may provide competent evidence of a current disability and of in-service exposure to asbestos, the claimant would still need to present competent medical evidence of a nexus relating the current disability to in-service exposure to asbestos. Id. As set forth above, the first sentence in paragraph 7.21d. (1) requires a determination as to "whether or not military records demonstrate evidence of asbestos exposure in service." In the present case, military records do not specifically demonstrate evidence of asbestos exposure. The fact that the veteran worked in brake and clutch repair, where perhaps he was in contact with products containing asbestos fibers, is an assertion. However, as noted in VAOPGCPREC 4-2000, VA's General Counsel suggested that a claimant may provide competent evidence of in-service exposure to asbestos. Thus, the Board will resolve any remaining doubt in favor of the veteran and find that the veteran has provided competent evidence of exposure to asbestos. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131, 38 C.F.R. § 3.303(a). "Direct" service connection may be established for a current disability when the evidence shows affirmatively that the disability resulted from injury or disease incurred (or aggravated) during active service. Id. "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Each disabling condition shown by service medical records (SMRs), or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). There is no requirement that a disorder must be "chronic" as a condition precedent to direct service connection under 38 C.F.R. § 3.303; however, "chronic diseases" as defined at 38 C.F.R. § 3.307 and 3.309 are accorded special consideration for service connection. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and certain chronic diseases, such as cardiovascular-renal disease (including involvement of arteriosclerosis and organic heart disease), become manifest to a degree of 10 percent within one year from the date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In January 1998, the veteran requested service connection for asbestosis. Having submitted essentially no medical evidence of a diagnosis, the RO denied the claim in March 1999. The veteran then submitted private medical reports and reported that he was exposed to asbestos fibers from brake shoes and clutch plates while in the Air Force. A May 1985 private chest X-ray report notes extensive post inflammatory changes throughout the lungs and evidence of numerous calcified granulomatous densities in the perihilar region. In June 1985, H. J. Mullin, M.D., of the asbestos screening program, Knoxville, Tennessee, interpreted the chest X-ray as one showing parenchymal interstitial changes in both lungs, consistent with asbestosis. In September 1995, D. Gaziano, M.D., examined the veteran and reported that he had smoked one pack of cigarettes per day for 47 years and continued to smoke. Dr. Gaziano also noted exposure to welding fumes after active service. Dr. Gaziano noted that chest X-rays showed irregular opacities throughout both lungs. Dr. Gaziano concluded, "It is my opinion that [the veteran] has asbestosis with a moderate degree of pulmonary functional impairment. I think it is important that [he] stop smoking...." A May 1999 VA compensation examination report reflects that the examiner reviewed the pertinent history, examined the veteran, ordered an X-ray and pulmonary function test, and offered a diagnosis of asbestosis. In November 2000, the veteran submitted employment records reflecting that his employer, MK-Ferguson of Oak Ridge, had examined him in June 1996 and found him not qualified for duties that entailed using a respirator, because he already had a respiratory disability. In December 2000, the veteran submitted a medical treatise addressing the potent hazard of asbestos fibers faced by auto mechanics repairing brake linings and clutch plates. Also submitted were Federal guidelines for protecting auto mechanics from asbestos fibers in the workplace. In May 2001, the veteran submitted Social Security Administration (SSA) records that reflect that he was disabled from July 1997 due to chronic obstructive pulmonary disease (COPD). The SSA records include a November 1997 examination report from M. E. Holland, M.D. Dr. Holland noted that chest X-ray report did not note asbestos plaques and concluded that this did not support a diagnosis of asbestosis. In its October 2003 REMAND, the Board asked the physician to determine the etiology of any manifested respiratory disability, to include asbestosis. Reviewing the April 2004 compensation examination report, the physician found mild restrictive defect, but offered no other information. In November 2004, the veteran reported to the University of Tennessee Memorial Hospital emergency room with right-sided chest pains and cough of two weeks. He reported a history of asbestos exposure both in the Air Force and working construction after the Air Force. This report is significant in that it suggests that the veteran did have post military service exposure to asbestos. A January 2005 private computerized tomography (CT) scan of the chest showed a possible malignancy of the upper right lung, right pleural effusion, adjacent atelectasis, and general mild interstitial lung disease. A January 2005 VA orthopedic compensation examination report contains a "presumptive" diagnosis of COPD/asbestosis. A March 2005 VA respiratory examination report reflects that the veteran noticed dyspnea in 1995. Upon examination, the physician offered an impression of dyspnea, mostly likely due to asthma. The physician noted that there was a reported history of asbestos exposure during active service, but no radiographic evidence of plaques or fibrosis, or rounded atelectasis. A lung mass was suspicious for a neoplasm. The physician noted that if the mass represented a mesothelioma, then that would support a diagnosis of asbestosis. In April 2005, the lung mass was found to be squamous cell carcinoma, rather than mesothelioma. The right upper lung was resected. In October 2006, a VA physician cited a medical treatise and noted that asbestosis patients are six times more likely than others to develop lung cancer. Based on statistics, the physician opined that the veteran's squamous cell lung cancer was related to his asbestosis. In December 2006, another VA physician reviewed the pertinent medical history and conceded that the veteran was exposed to asbestos during active service. The physician concluded, however, that the veteran did not have asbestosis. Thus, the medical evidence concerning whether the veteran actually has asbestosis is in controversy. Drs. Mullin and Gaziano offered their independent diagnoses of asbestosis in 1985 and 1995, respectively. These diagnoses were based on chest X-rays that showed the requisite pleural plaques and based on evidence of a current respiratory defect and a history of exposure to asbestos. In May 1999, a VA physician examined the veteran and also offered a diagnosis of asbestosis. Thus, the two private physicians supported their diagnoses with the necessary clinical evidence and the VA physician offered a diagnosis that the Board cannot controvert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from substituting its own unsubstantiated medical opinion). These medical diagnoses are persuasive, if not compelling, evidence of asbestosis. On the other hand, in November 1997, Dr. Holland found no evidence of asbestosis; in March 2005, a VA physician found no radiographic evidence of asbestos; and, in December 2006, another VA physician found no evidence of asbestosis. The Board finds this medical evidence to be almost as persuasive. Because there is competent, persuasive evidence both for and against a diagnosis of asbestosis, the issue remains uncertain. Fortunately, medical certainty is never required for service connection. As long as relative equipoise exists, the benefit of the doubt on any material fact must be resolved in favor of the veteran. With three physicians opining that the veteran has asbestosis and three physicians opining that he does not, the competent medical evidence is clearly in equipoise. There is satisfactory evidence that asbestos exposure occurred during active service and some evidence that suggests post service exposure. Because it is difficult to determine which exposure caused asbestosis, the benefit of the doubt doctrine must also be applied. Because the latency period of asbestosis is known to be 10 to 45 years, the Board will resolve any remaining doubt in favor of the veteran and find that it is at least as likely as not that his asbestosis is related to asbestos exposure during active service. After considering all the evidence of record, the Board finds that the evidence for service connection is in relative equipoise. Service connection for asbestosis must therefore be granted. Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2006). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. 38 C.F.R. § 4.10. The rating schedule provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Residuals of Appendectomy Residuals of appendectomy have been noncompensably rated for the entire appeal period under Diagnostic Code 7339. This and other potentially applicable codes underwent revision, effective July 2, 2001; however, the changes are not significant to this case. Under Diagnostic Code 7339, a 40 percent evaluation is warranted for a large ventral hernia which is not well supported by a belt under ordinary conditions. A 20 percent evaluation is warranted for a small postoperative ventral hernia which is not well supported by a belt under ordinary conditions, or a healed hernia or post operative wound with weakening of the abdominal wall and indications for a supporting belt. A noncompensable rating is warranted for healed post-operative wounds, when there is no related disability and a belt is not indicated. 38 C.F.R. § 4.114, Code 7339 (2007). The residuals of appendectomy have been manifested throughout the appeal period by a healed slightly depressed appendectomy scar measuring 10 centimeters by 0.75 centimeter with adhesion to underlying tissue, and occasional burning and itching at the scar site. Comparing these manifestations with the criteria of the rating schedule, the Board finds that the criteria for a compensable schedular rating under Diagnostic Code7339 are not more nearly approximated. This is because there is no weakening of an abdominal wall that requires a supporting belt. The appendectomy scar measures, at most, 7.5 square centimeters. Under the prior provisions of Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are tender and painful on objective demonstration. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (effective prior to August 30, 2002). Under the revised rating schedule, the provisions of Diagnostic Code 7804 do not change substantively. A superficial scar that is painful on examination warrants a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804 (effective August 30, 2002). Pursuant to the former criteria of Diagnostic Code 7805, scars, other than those characterized as disfiguring, poorly nourished, subject to repeated ulceration, or superficial scars that are tender and painful, or burn scars, are to be rated on limitation of function of the part affected under Code 7805. See 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (effective prior to August 30, 2002). Pursuant to the current version of Diagnostic Code 7805, scars, other than of head, face, or neck, or deep scars, or unstable scars, or superficial scars exceeding 144 square inches, are to be rated on limitation of function of the part affected under Code 7805. See 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). There is no basis for a compensable rating for the scar under either Diagnostic Code. While the Board has considered the doctrine of benefit of doubt, the record does not provide an approximate balance of positive and negative evidence on the merits. 38 U.S.C.A. § 5107(b). Residuals of Fracture of the Right Hand The right hand disability has been rated noncompensably under Diagnostic Code 5299-5225 for the entire appeal period. The residuals of fracture of the right hand have been manifested throughout the appeal period by occasional pain in the right hand and fingers and occasional numbness in the right fingers, with tenderness over the second metacarpal fracture site. Range of motion and strength were normal. Under Diagnostic Code 5225, a 10 percent rating is warranted for ankylosis of the index finger of either hand, whether or not in favorable angle. 38 C.F.R. § 4.71a, Diagnostic Code 5225 (effective prior to August 26, 2002). The rating schedule was revised effective August 26, 2002; however, Diagnostic Code 5225 was not affected by this revision. Because there is no ankylosis, a compensable rating under Diagnostic Code 5225 is not warranted. The evidence of record does not demonstrate extremely unfavorable ankylosis such as to warrant a rating for amputation under Diagnostic Code 5225 as it existed prior to August 26, 2002. The evidence similarly does not establish limited motion of other digits of the right hand. The medical findings do not show interference with overall hand function to such an extent as to warrant a rating for amputation as set forth in the revised version of Diagnostic Code 5225. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b). Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) (2007) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. If the matter is not referred, the Board must provide adequate reasons and bases for its decision to not so refer it. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the disabilities at issue have not been shown, or alleged, to cause such difficulties as marked interference with employment or to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227. See also VAOPGCPREC. 6-96. ORDER Service connection for asbestosis is granted. A compensable rating for residuals of appendectomy is denied. A compensable rating for residuals of a fracture of the right hand is denied. ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Important Notice: Attached to this decision is a VA Form that provides information concerning your rights to appeal our decision. Due to recent changes in the law, some of the information contained in the attached notice of appellate rights form is no longer accurate concerning the ability to pay attorneys and agents to represent you. Some additional information follows that summarizes the current law. To the extent that the information contained in the attached VA Form conflicts with the summary below, please disregard the information on the VA Form and instead rely upon the following information: Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (2006). If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. VA is in the process of amending its regulations governing representation of claimants for veterans' benefits in order to implement the provisions of the new law. More information concerning the regulation changes and related matters can be obtained at http://www1.va.gov/OGC (click on "Accreditation and Recognition of Service Organizations"). 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. Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address: Office of the Chief Counsel for Policy (01C3) Board of Veterans' Appeals 810 Vermont Avenue, NW, Washington, DC 20420 Facsimile: (202) 565-5643 (When final regulations are published to implement the requirements of the new law, fee agreements must be filed with the VA Office of the General Counsel and not the Board.) Department of Veterans Affairs