Citation Nr: 0328560 Decision Date: 10/22/03 Archive Date: 11/03/03 DOCKET NO. 00-22 503A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 30 percent for acne vulgaris and hidradenitis suppurativa for the period July 31, 2000 through August 29, 2002. 2. Entitlement to a rating in excess of 30 percent for acne vulgaris and hidradenitis suppurativa for the period beginning August 30, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Gentile, Associate Counsel INTRODUCTION The veteran served on active duty from January 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied the veteran's claim for a rating in excess of 10 percent for acne of the face and back. Subsequently, a January 2001 rating decision increased this evaluation to 30 percent. This case was previously before the Board in October 2001, when it was remanded for additional development. The requested development was completed and the RO returned the case to the Board in August 2003. FINDINGS OF FACT 1. VA has made reasonable efforts to assist the veteran in the development of his claim and has notified him of the information and evidence necessary to substantiate his claim. 2. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 3. It is not shown that, from the period July 31, 2000 through August 29, 2002, the service-connected acne vulgaris and hidradenitis suppurativa involved a complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement, or that it involved eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or was exceptionally repugnant. 4. It is not shown that for the period beginning August 30, 2002, the service-connected acne vulgaris and hidradenitis suppurativa involves disfigurement of the head, face, or neck involving visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 5. Color photographs of the veteran's face, neck, chest, armpits and back, taken in October 2002, show that the veteran's acne vulgaris and hidradenitis affect more than 40 percent of his entire body or more than 40 percent of exposed areas affected. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, and not in excess thereof, for acne vulgaris and hidradenitis suppurative involving the face, neck, chest, armpits, and back have been met for the period July 31, 2000 to August 29, 2002. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7899-7806 (2002). 2. The criteria for a 60 percent rating, and not in excess thereof, for acne vulgaris and hidradenitis suppurative involving the face, neck, chest, armpits, and back have been met for the period beginning August 30, 2002. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7899-7806 (2002 and 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Applicability of the Veterans Claims Assistance Act of 2000 There has been a significant change in the law during the pendency of this appeal. 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). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In this case, VA's duties have been fulfilled to the extent possible. VA must notify the veteran of evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this regard, the veteran was notified of the information necessary to substantiate his claim by means of the discussions in the October 2001 remand, December 2001 VCAA letter, January 2001 rating decision and February 2003 statement of the case. The Board concludes that the discussions therein adequately informed the veteran of the information and evidence needed to substantiate his claim, thereby meeting the notification requirements of the VCAA. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West Supp. 2003); 38 C.F.R. § 3.159(c), (d) (2003). Here, the RO obtained the veteran's available service medical records and VA inpatient and outpatient treatment records. Further, the veteran has been afforded several VA examinations to address the etiology and symptomatology of his claimed disability. In connection with his VA examinations, unretouched color photographs, which show the affected areas if the veteran's body, were also obtained. As such, the VA's duties under the VCAA have been satisfied. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board concludes that VA has satisfied its duties, as set out in the VCAA, to notify and to assist the veteran in this case. Thus, the Board finds that further development is not warranted. II. Entitlement to an Increased Disability Rating Disability evaluations are assigned by applying a schedule of ratings that represent, as far as can practicably be determined, the average impairment of earning capacity. In determining the current level of impairment, the disability must be viewed in relation to its history. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2003). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2003). In addition, where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases that involve an unlisted condition, it is permissible to rate under the Diagnostic Code for a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2003). The evaluation of the same "disability" or the same "manifestations" under various diagnoses, however, is prohibited. See 38 C.F.R. § 4.14 (2003); see also, Brady v. Brown, 4 Vet. App. 203, 206 (1993) (a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity.") Furthermore, 38 C.F.R. § 4.27 (2003) provides that unlisted disabilities that require rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. For example, as noted above, the veteran is currently rated 30 percent disabled for his service-connected acne vulgaris and hidradenitis suppurativa. He is rated under 38 C.F.R. § 4.118, Code 7899-7806 (2002). Code 7899 pertains generally to disease and other disabilities of the skin; Code 7806 pertains to eczema. See 38 C.F.R. §§ 4.20, 4.27 (2002). In considering the severity of a disability, it is also essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 and 4.41 (2003). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2003); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require a review of the recorded history of a disability by the adjudicator, they do not give past medical reports precedence over current medical findings. Nevertheless, past medical reports may be critical in assessing the accuracy of subsequent medical evidence relating to the veteran's claim. Indeed, the Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As a result, the Board has the authority to favor one medical opinion over another. See Cathell v. Brown, 8 Vet. App. 539, 543 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board observes that new VA regulations concerning skin disorders were promulgated during the course of the veteran's increased rating claim, and became effective August 30, 2002. In this regard, the diagnostic criteria in effect prior to that date as well as the amended criteria effective as of that date must be considered. According to the most recent supplemental statement of the case (SSOC) dated in February 2003, the RO assigned a 30 percent disability evaluation to the veteran's acne vulgaris and hidradenitis suppurativa after considering both the old and new criteria under Diagnostic Codes: 7800 through 7806 and 7828. Under the old diagnostic criteria, Diagnostic Code 7800 provides a 10 percent evaluation for moderate, disfiguring scars of the head, face, or neck. Scars of the head, face or neck, which are severely disfiguring, especially if productive of a marked and unsightly deformity of the eyelids, lips, or auricles, warrant a 30 percent evaluation. A 50 percent evaluation, under Code 7800, requires disfiguring scars of the ear, face or neck, which are complete or an exceptionally repugnant deformity of one side of the face or when there is marked or repugnant bilateral disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2002). Under the old criteria, Diagnostic Code 7806 provides a 10 percent rating for a skin disorder with exfoliation, exudation or itching, involving an exposed surface or extensive area. The next higher rating of 30 percent contemplates a skin disorder with exudation or constant itching, extensive lesions, or marked disfigurement. A 50 percent rating contemplates a skin disorder with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or being exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). The Board has considered the possibility of rating the veteran under the old criteria of Diagnostic Code 7801, which provides a 40 percent rating for scars involving third degree burns. The required injuries under Diagnostic Code 7801, however, are not applicable to the veteran's service- connected skin condition. As a result, the Board finds that rating the veteran's disability under this Diagnostic Code is unwarranted. Similarly, the Board has considered the possibility of rating the veteran's skin condition under the old criteria of Diagnostic Codes 7802-7804. A rating under these Diagnostic Codes is also not warranted because the disability rating available under Diagnostic Codes 7802-7804 is less than the 30 percent rating that the veteran is currently receiving. Under the new criteria for skin disorders, Diagnostic Code 7800, effective August 30, 2002, disfigurement of the head, face, or neck, warrants a 10 percent evaluation, with one characteristic of disfigurement. A 30 percent evaluation requires visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips, or; with two or three characteristics of disfigurement. A 50 percent evaluation requires visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. Finally, an 80 percent evaluation, under Diagnostic Code 7800, requires the visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2003). The 8 characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are: Scar 5 or more inches (13 or more cm.) in length; scar at least one- quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper- pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). It is also noted that consideration should be made of unretouched color photographs when evaluating under the criteria. 38 C.F.R. § 4.118, Diagnostic Code 7800, n.1 (2003). Under Diagnostic Code 7806, a 30 percent disability rating is assigned for dermatitis or eczema, affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2003). The Board has considered the possibility of rating the veteran under the new criteria of Diagnostic Code 7801 for the period beginning August 30, 2002. The maximum available rating under Diagnostic Code 7801 is 40 percent. As discussed below, however, because the Board is increasing the veteran's rating for this period to 60 percent, an analysis under this Diagnostic Code is not warranted. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2003); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With the above legal criteria in mind, the evidence will be briefly summarized. The veteran served in World War II and has been service connected for his acne-related skin condition since December 1945. The veteran's entitlement to an increased rating to 10 percent for this condition was granted effective June 1947. In January 2001, the disability rating for his acne-related skin condition was increased to 30 percent, effective July 31, 2000, the date of receipt of the veteran's claim for an increased rating. The veteran claims that his condition has worsened. Specifically, in his statement dated in November 2000, the veteran claims: that he has "exudation every 8 to 10 days which lasts several days then the antibiotics will stop the exudation for a short period. The itching and bleeding is constant. Attached photos are self-explanatory. I'm a mess." The Board notes that this is not shown by the medical evidence of record. In accordance with the instructions of the October 2001 remand, the veteran received an updated VA examination in October 2002. The examiner noted that the veteran reported taking "Keflex when symptomatic." The examiner also noted that he reviewed the veteran's electronic medical records since his October 2000 VA examination, "which did not show anymore notes from the dermatologist nor [any] new prescriptions for Keflex or antibiotics since November 2001. . . . Review of the [veteran's] inpatient medications did not show any antibiotics." In addition, on physical examination of the veteran, the examiner noted: "There are numerous hyperpigmented scars on the posterior neck, upper back, anterior chest and axilla. There is keloid formation in the right axilla. There is no acute inflammatory lesion, drainage, crusting, ulceration, excoriation on the face, neck, upper back, chest or axilla. He has rhinophyma. This is moderately disfiguring." The examiner's diagnosis was "[r]esiduals, acne and hidradenitis suppurativa." In addition to his VA examination, the claims file contains color photographs of the veteran, taken in October 2002, which have not been retouched. The Board finds that these photographs show that the veteran's acne vulgaris and hidradenitis suppurativa affect more than 40 percent of his entire body or more than 40 percent of the exposed areas of the veteran's body. In October 2000, the veteran received a VA examination in connection with his claim for an increased disability rating evaluation for his acne vulgaris and hidradenitis suppurativa. In the corresponding VA examination report, a different VA examiner noted the following: "Few inflammatory papules and pustules on the chest and back. Numerous hyperpigmented macules on the chest and back. Keloidal scarring with fisutulas [sic] in the rt axilla with no active drainage at this time." The examiner further noted: "1. Hidradenitis Suppurativa: Patient has a chronic and well- documented history of this condition for which surgery is not an option and medical therapies are only palliative. 2. Acne Vulgaris with post inflammatory hyperpigmentation." The VA examiner instructed the veteran to continue to use oral antibiotics during flare-ups of his hidradenitis and to apply erythromycin 2 percent solution to affected areas twice daily. Color photographs were also taken in October 2000. The Board finds that these photographs show more than 40 percent of the veteran's entire body or more than 40 percent of exposed areas are affected by acne vulgaris and hidradenitis suppurativa. The RO assigned a 30 percent disability evaluation for the veteran's skin disorder by analogy to 38 C.F.R. § 4.118, Diagnostic Code 7806. Specifically, the RO determined that the pigmentation of the veteran's back and neck was extensive. Nevertheless, the RO determined that the veteran's skin condition did not affect more than 40 percent of the veteran's entire body or more than 40 percent of the exposed areas affected. In addition, the RO noted that under 38 C.F.R. § 4.118, Diagnostic Code 7828 (2003) the highest available disability rating was 30 percent. The Board has carefully reviewed the evidence of record, as summarized above, and finds that for the reasons and bases set forth below, the veteran's acne vulgaris and hidradenitis suppurativa most closely approximates the criteria for a 30 percent disability rating, and not in excess thereof, under the old criteria, for the period July 31, 2000, through August 29, 2002, (to which the new regulations are not applicable because they were not in effect at that time) and a 60 percent disability rating, and not in excess thereof, under the current criteria for the period beginning August 30, 2002, which is the effective date of the new rating regulations. See 38 C.F.R. § 4.118, Diagnostic Code 7899- 7806 (2002 & 2003). For the period from July 31, 2000 through August 29, 2002, the objective clinical evidence does not reflect scarring of the veteran's face, head or neck which is complete or which involves an exceptionally repugnant deformity of one side of the face. Nor does it show a marked or repugnant bilateral disfigurement. The clinical evidence for the period July 31, 2000 to August 29, 2002 also does not involve eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or is it exceptionally repugnant. The medical evidence, as specifically shown by the unretouched color photographs of the veteran taken in October 2000, does, however, involve exudation or itching constant, extensive lesions, or marked disfigurement as contemplated under the 30 percent rating of Diagnostic Code 7806. See 38 C.F.R. § 4.118, Diagnostic Code 7806. The objective clinical evidence of record for the period beginning August 30, 2002, (which includes the new regulations then in effect), specifically, unretouched, color photographs taken in October 2002, clearly shows hyperpigmentation on the veteran's forehead, cheeks, neck, chest and back. They also show keloids on both armpits. The Board finds that these photographs show that the veteran's skin condition affects more than 40 percent of his entire body or more than 40 percent of the exposed areas of his body. The VA examination report shows that pursuant to his physician's instructions, the veteran has used antibiotics to alleviate the symptoms of his skin disorder, without complete control. In addition, as noted in the VA examination report dated in October 2000, "surgery is not an option and medical therapies are only palliative" with respect to the veteran's skin condition. Based upon the medical evidence of record, the veteran cannot meet the criteria for a higher disability rating of 80 percent for disfigurement of head face or neck under Diagnostic Code 7800. Specifically, the evidence does not establish that the veteran's acne vulgaris and hidradenitis suppurativa has resulted in visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (auricles), cheeks, lips), or; with six or more characteristics of disfigurement as required for an 80 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2003). The Board has considered the possibility of rating the veteran under other criteria available under Diagnostic Code 7800. These criteria, however, do not allow for a higher rating than the 60 percent disability rating which is available under Diagnostic Code 7806, and, therefore, the Board concludes that further analysis under Diagnostic Code 7800 is not warranted. The Board also has considered whether the veteran is entitled to an increased disability evaluation on an extra-schedular basis. However, the Board concludes that the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2003). In this regard, the Board finds that there has been no showing by the veteran that his skin disorder, standing alone, resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of normal rating schedule standards. In fact, the veteran's most recent hospitalization occurred because of "functional decline" unrelated to his skin condition. Accordingly, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) (2003) have not been met. Accordingly, the evidence supports a disability rating of 30 percent, and not in excess thereof, for the period from July 31, 2002, through August 29, 2002 and 60 percent, and not in excess thereof for the period beginning August 30, 2002, for the appellant's acne vulgaris and hidradenitis suppurativa, involving face, neck, chest, armpits and back. ORDER Entitlement to a rating in excess of 30 percent for service- connected acne vulgaris and hidradenitis suppurativa, involving face, neck, chest, armpits and back for the period July 31, 2000 through August 29, 2002 is denied. An increased rating of 60 percent, and not in excess thereof, for service-connected acne vulgaris and hidradenitis suppurativa, involving face, neck, chest, armpits and back for the period beginning August 30, 2002 is granted. ____________________________________________ BETTINA S. CALLAWAY 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