Citation Nr: 0325315 Decision Date: 09/29/03 Archive Date: 10/03/03 DOCKET NO. 94-28 347 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Entitlement to an increase in a 10 percent rating for glomerulonephritis with arterial hypertension. 2. Entitlement to a compensable evaluation for a parasitic intestinal infection (trichuriasis and necatoriasis). 3. Entitlement to service connection for multiple sclerosis (MS). 4. Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from June 1966 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) in part from a December 1993 RO decision that denied a claim for an increase in the 10 percent rating for service- connected glomerulonephritis with arterial hypertension. The appeal also arises from an April 2002 RO decision that denied a claim for a compensable evaluation for a service-connected parasitic intestinal infection (trichuriasis and necatoriasis), that denied a claim for service connection for MS, and that denied a claim for a TDIU rating. FINDINGS OF FACT 1. The veteran's service-connected glomerulonephritis with arterial hypertension is manifested by moderate chronic nephritis without renal insufficiency, and the need to use antihypertensive medication to keep diastolic blood pressure below 100. 2. The veteran's service-connected parasitic intestinal infection (trichuriasis and necatoriasis) is currently asymptomatic. 3. MS was first manifest more than 7 years after service, and was first diagnosed 20 years after service. MS began years after service, was not caused by any incident of service, and was not caused or permanently worsened by an established service-connected condition. 4. The veteran's service-connected disabilities are glomerulonephritis with arterial hypertension (rated 30 percent, pursuant to the current Board decision) and a parasitic intestinal infection involving trichuriasis and necatoriasis (rated 0 percent). The service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for 30 percent rating for glomerulonephritis with arterial hypertension are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997 and 2002), § 4.115a, Diagnostic Code 7502 (1993), §§ 4.115a, 4.115b, Diagnostic Code 7502 (2002). 2. The criteria for a compensable rating for trichuriasis, necatoriasis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7324 (2002). 3. MS was not incurred in or aggravated by service, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2002). 4. The criteria for a TDIU rating are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background The veteran served on active duty in the Army from June 1966 to March 1967. Service medical records show that he was treated for gross hematuria in July 1966. In November 1966, he complained of easy fatigability and flank pain. On ocular examination in December 1966, there was no ocular disease; he had only mild convergence difficulty. He was medically discharged from service due to chronic mild glomerulonephritis, manifested by recurrent asymptomatic gross hematuria. This condition reportedly had existed prior to service but had been aggravated by service. He also had a parasitic infection of the gastrointestinal tract involving trichuriasis and necatoriasis. Post-service medical records show that in the years immediately following service, the veteran had episodes of hematuria. Since service, service connection and a noncompensable evaluation have been in effect for the parasitic intestinal infection involving trichuriasis and necatoriasis. Service connection is also established for glomerulonephritis with arterial hypertension, and for many years this has been rated 10 percent. The veteran was given a VA examination in January 1980, which diagnosed chronic glomerulonephritis, and mild hypertension secondary to glomerulonephritis. On VA hospitalization in October 1981 due to blunt body trauma, in reporting his past history, the veteran said that he once lost his vision for one month but medical evaluation led to no diagnosis. The veteran was hospitalized at a VA medical facility in August-September 1987. He had a variety of complaints including upper extremity weakness, headaches, and vision problems for a month and a half. Historically, the veteran described an episode of left-sided numbness several years earlier and an episode of bilateral lower extremity numbness and weakness 10 years earlier. The discharge diagnosis on this 1987 hospital admission was MS. VA treatment records from 1987 and later reflect ongoing treatment for various problems, such as MS, gastritis, gastroesophageal reflux disease, and mental problems. In November 1991, he had an acute exacerbation of MS with symptoms of blurred vision, dizziness, and left-sided paresthesias. He was also diagnosed with acute atrial fibrillation. On VA treatment for MS in November 1992, it was noted that MS had been diagnosed in 1987 and the veteran was in the process of applying for Social Security Administration disability benefits. On VA neurological examination in November 1992, the veteran described visual problems, balance and gait problems, and left cheek numbness. Examination showed left-sided hypotonia with mild left upper extremities drift, and a mild head tremor. The diagnosis was MS. On VA examination in December 1992, blood pressure was 155/100. Diagnoses were demyelinating disease, MS, and arterial hypertension (not treated) with bradycardia. On VA heart examination in December 1992, blood pressure was 130/80. It was noted that he had presented in service with hematuria, which had healed. There was no hepatosplenomegaly on abdominal examination. The diagnosis was a well documented episode of transient atrial fibrillation, whose cause was undetermined although an acute electrolyte disturbance brought on by nausea could have been the cause. The examining doctor stated that arrhythmia is described with muscular dystrophy, but not with MS. On VA intestines examination in December 1994, the veteran denied recurrence of intestinal parasitosis since the mid 1960s, although he did have occasional diarrhea to the present. The problem would usually subside spontaneously within hours. He said he was frequently seen for epigastric burning pain and heartburn. He related he was being treated with medication for upper gastrointestinal problems. Blood pressure was 140/76. The diagnosis was no significant evidence of intestinal parasitosis on examination. A December 1994 parasitology smear was negative for occult blood. On VA examination in December 1994, he reported occasionally dark urine with dull low back pain, but no colicky pain. It was noted that laboratory reports in the record for other problems had always showed normal BUN and creatinine. His abdomen was soft and depressible, without hepatosplenomegaly. The kidneys were not palpable, and there were no renal masses. There was no history of calculi. Blood pressure was 140/76. The diagnosis was no significant renal function abnormality on examination, and history of glomerulonephritis in 1966. In a January 1995 note to the report, the examiner stated that a December 1966 biopsy had been normal and had not showed pathological diagnosis; the diagnosis of glomerulonephritis was clinical. Medical records in 1995 include a number of blood pressure readings which generally were within normal limits. When the veteran was seen for a complaint of recent flank pain in September 1995, hematuria was noted, most likely due to renal calculi. There was tenderness to palpation. Intravenous pyelogram and nephrotogram from October 1995 showed a 5 millimeter calculus in the right U.V. junction producing mild dilatation of the right pelvicalyceal system and ureter. There also was a small calculus in the right kidney and a suggestion of a small one on the left. He had an apparent indentation of the floor of the urinary bladder that could be due to extrinsic pressure by an enlarged prostate. Otherwise, there was no significant abnormality of the kidneys, pelvicalyceal systems, visualized segments of the ureters, and urinary bladder. The assessment was uro- and nephrolithiasis. On VA neurological examination in March 1997, it was noted that he had been hospitalized in 1987 for MS after complaining of headaches, dizziness, and numbness. Blood pressure was 160/80. The diagnosis was MS since 1987 and confirmed in 1992. The veteran underwent VA examination in April 1997. It was noted that he had been on disability since 1992 due to MS. He complained of insomnia and low back pain. He also complained of diarrhea alternating with constipation; when he had diarrhea, it would last for 2 to 3 days with many bowel movements per day. He also described heartburn, which was controlled by medication. He denied nausea and vomiting. Blood pressure was 127/77, 136/74, and 144/76. Soft, depressible peristalsis was present in the abdomen; there were no abdominal masses or visceromegaly. The bladder was palpable just below the umbilicus with discomfort. The diagnoses included MS; hiatal hernia with gastroesophageal reflux; labile arterial hypertension, controlled without medications; heart arrhythmia by history; and anxiety reaction possibly secondary to MS. On VA examination in April 1997, he denied having renal colic, hematuria, dysuria, urinary frequency, or flank tenderness. The physical examination was normal. An abdominal X-ray showed no evidence of renal or ureteral calculi. BUN and creatinine levels were within normal limits. There was no evidence of urinary tract infection. The diagnosis was a history of urolithiasis, with no present evidence of urinary tract infection or urolithiasis. On treatment in April 1997, his blood pressure was 144/76. In August 1997, he was seen for stomach problems with diarrhea that cleared; blood pressure was 127/72. In correspondence received in August 1997, the veteran reported that he had been unable to work since 1991 and had been hospitalized more than 4 times for his kidney condition, most recently in 1991. He contended that he had developed MS as a result of his kidney condition. In July 1998, the RO awarded non-service-connected disability pension, based on the veteran's non-service-connected conditions such as MS, peptic ulcer disease, hiatal hernia, gastroesophageal reflux, and anxiety reaction secondary to MS, and with consideration also given to the established service-connected conditions. On VA examination in September 2000, the veteran denied anal pruritis, weight changes, nausea, and vomiting. He complained of alternating episodes of constipation with diarrhea. He had no history of fistula. He had normal peristalsis and a soft and depressible abdomen. He did not have malnutrition, anemia, or any other debility. He reported occasional lower abdominal discomfort not associated with any other symptoms. Laboratory testing for ova and parasites was negative. The diagnosis was trichuriasis, by history. On VA hypertension examination in July 2001, it was noted that there was no clinical evidence of renal insufficiency or cardiac complications. He was taking ACE inhibitors to control his blood pressure. His blood pressure was 140/72, 136/70, and 140/70. Sinus rhythm was normal, and there were no murmurs; heart sounds were normal. An EKG was reported to be pending. Diagnoses were arterial hypertension and glomerulonephritis. The veteran underwent a VA neurological examination in October 2001. According to the veteran, he had bilateral lower extremity numbness in 1970, without diagnosis, and in 1976 he lost vision in his left eye for several weeks. He reported being diagnosed with MS in 1987 after presenting with an episode of hemibody numbness and right hand ataxia. He also reported that his last exacerbation consisting of left hemibody numbness was in 1992. He described obvious flare-ups and relapses of his condition, with heat as a main precipitating factor and aggravating factor. He was not taking medications to prevent relapses. He had had approximately 6 flare-ups of the disease since 1976. The impression on examination was MS (relapsing remitting course). The examining doctor noted glomerulonephritis and hypertension, and he stated that there was no relationship between these entities and the veteran's MS. He remarked that the cause of MS was uncertain most of the times; environmental factors had been postulated as a main cause, but the general community had not accepted a specific cause. He also stated that the veteran had comorbid diseases and that there was no relationship between one and the other. II. Analysis Through discussions in correspondence, RO decisions, the statements of the case, and the supplemental statements of the case, the VA has informed the veteran of the evidence necessary to substantiate his claims and of his and the VA's mutual responsibilities for providing evidence. Identified relevant records have been obtained, and VA examinations have been provided. The VA has satisfied the notice and duty to assist provisions of the law. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Increased ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 1. Glomerulonephritis with arterial hypertension. The veteran seeks an increase in the current 10 percent rating for glomerulonephritis with arterial hypertension. The criteria pertaining to evaluation of nephritis changed February 17, 1994, during the pendency of the appeal. Under the old criteria, a 10 percent rating is warranted for mild chronic nephritis manifested by albumin and casts with a history of acute nephritis or associated mild hypertension, diastolic 100 or more. A 30 percent rating is warranted for moderate chronic nephritis, manifested by albumin constant or recurring with hyaline and granular casts or red blood cells; transient or slight edema or hypertension, diastolic 100 or more. A 60 percent rating is warranted for moderately severe chronic nephritis, manifested by constant albuminaria with some edema; or moderate retention of non-protein nitrogen, creatinine, or urea nitrogen; or moderately decreased kidney function or moderate cardiac complications. 38 C.F.R. § 4.115a, Diagnostic Code 7502 (1993). Under the new criteria, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7502 (2002), chronic nephritis is rated as renal dysfunction. The new criteria also provide that renal dysfunction with albumin and casts with history of acute nephritis; or hypertension that is noncompensable under Diagnostic Code 7101 warrants a 0 percent rating. Renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension that is at least 10 percent disabling under Diagnostic Code 7101, warrants a 30 percent rating. Renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101, warrants a 60 percent rating. 38 C.F.R. § 4.115a (2002). The criteria for evaluating hypertension have also been revised during the pendency of the appeal, effective January 13, 1998. Under the old version of 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997) for hypertensive vascular disease (essential arterial hypertension), a 10 percent rating is warranted where diastolic pressure is predominantly 100 or more, or when continuous medication is shown necessary for control of hypertension with a history of diastolic pressue predominantly 100 or more. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more with definite symptoms. A 40 percent rating is warranted where diastolic pressure is predominantly 120 or more and moderately severe symptoms. Under the new criteria pertaining to hypertensive vascular disease (hypertension and isolated systolic hypertension) found at 38 C.F.R. § 4.104, Diagnostic Code 7101 (2002), a 10 percent rating is warranted where diastolic pressure is predominantly 100 or more or systolic pressure is predominantly 160 or more, or the individual has a history of diastolic pressure of predominantly 100 or more and requires continuous medication for control. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more. A 40 percent rating is warranted where diastolic pressure is predominantly 120 or more. Separate ratings are not to be assigned for disability from disease of the heart [e.g., hypertension] and any form of nephritis, on account of the close interrelationships of cardiovascular disabilities. If, however, absence of a kidney is the sole renal disability, even if removal was required because of nephritis, the absent kidney and any hypertension or heart disease will be separately rated. Also, in the event that chronic renal disease has progressed to the point where regular dialysis is required, any coexisting hypertension or heart disease will be separately rated. 38 C.F.R. § 4.115. The Board notes that neither of these conditions (absence of kidney or regular dialysis) is involved in this case; thus separate ratings for glomerulonephritis and for hypertension are not permitted. The Board notes that renal insufficiency related to glomuleronephritis has not been found recently on medical studies. There have been some episodes of hematuria (blood in the urine), although there is a question as to whether this is related to glomuleronephritis. Recent medical records indicate that medication is now required to control hypertension. It is questionable whether, historically, diastolic blood pressure has been predominantly 100 or more without medication, although there have been some readings meeting this level. It seems reasonable to concluded that antihypertensive medication is now needed to keep diastolic blood pressure below 100. In rating this disability, it must be remembered that it is not always necessary to show every one of the findings listed in a diagnostic code for a particular percentage rating, provided that the overall functional impairment approximates the criteria for the percentage rating. See 38 C.F.R. § 4.21. The Board has also considered the provisions of 38 C.F.R. § 4.7 concerning which of two alternative ratings to assign, as well as the requirement of 38 U.S.C.A. § 5107(b) that the veteran is to be given the benefit of the doubt when the evidence is in equipoise. With this in mind, the Board finds that the veteran's service-connected glomerulonephritis with arterial hypertension is manifested by moderate chronic nephritis without renal insufficiency, and the need to use antihypertensive medication to keep diastolic blood pressure below 100. Hypertension would be rated 10 percent under Code 7101. As noted, separate ratings for hypertension and nephritis may not be assigned, although the fact that hypertension is 10 percent disabling under Code 7101 influences the rating which is to be assigned under Code 7502 for nephritis. Considering all the evidence, the criteria for a 30 percent rating for glomerulonephritis with arterial hypertension are met under Code 7502, and an increased rating to this level is granted. 2. Parasitic intestinal infection Since service, the veteran has been assigned a noncompensable (0 percent) rating for the parasitic intestinal infection involving trichuriasis and necatoriasis. When an unlisted condition is encountered it is permissible to rate it 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. This condition is to be rated by analogy to the criteria for intestinal or hepatic distomiasis. Distomiasis is rated 0 percent when there are mild or no symptoms; a 10 percent rating is warranted for moderate symptoms; and a 30 percent rating is warranted for severe symptoms. 38 C.F.R. § 4.114, Diagnostic Code 7324. The medical evidence indicates that the parasitic intestinal infection involving trichuriasis and necatoriasis has been inactive for years. While the veteran has gastrointestinal symptoms from other ailments, such have not been attributed to the old parasitic infection. At a recent VA examination, laboratory testing for ova and parasistes was negative, and the old parasitic infection was noted by history only. The weight of the credible evidence demonstrates that this condition is currently asymptomatic, and thus a 0 percent rating under Code 7324 is proper. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Service connection for MS Service connection may be granted for disability due to a disease or injury which was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection will be rebuttably presumed for multiple sclerosis if it is manifest to a compensable degree within 7 years after active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability which is proximately due to or the result of a service- connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service- connected condition, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet.App. 439 (1995). There is no medical evidence of MS during the veteran's 1966- 1967 active duty, or within the 7 year presumptive period after service. MS was first diagnosed in 1987, 20 years after service. The veteran maintains that MS began in service or is secondary to his service-connected glomerulonephritis with hypertension. However, he is a layman as thus has no competence to give a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). A VA examiner in 2001 noted that there was no relationship between the veteran's MS and his service-connected glomerulonephritis with hypertension, and the doctor also pointed out that the cause of MS is unknown. The weight of the credible evidence shows that MS began many years after service, was not caused by any incident of service, and was not caused or permanently worsened by a service-connected condition. MS was not incurred in or aggravated by service, and it is not proximately due to or the result of a service-connected disability. The requirements for direct, presumptive, or secondary service connection for MS are not met. As the preponderance of the evidence is against this claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. C. TDIU rating A total disability rating for compensation based on individual unemployability (a TDIU rating) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, although appropriate cases must be referred to the Director of the VA Compensation and Pension Service for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether the veteran is entitled to a TDIU rating, neither non-service-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. The veteran's only service-connected disabilities are glomerulonephritis with arterial hypertension (rated 30 percent, pursuant to the present Board decision), and a parasitic intestinal infection (rated 0 percent). The combined service-connected disability rating is 30 percent. 38 C.F.R. § 4.25. Therefore, the veteran does not meet the percentage requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU rating on a schedular basis. The evidence does not suggest that the veteran's service- connected disabilities would render it impossible for the average person to follow a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board finds no circumstances which would warrant referral of the case to the designated VA official for consideration of a TDIU rating on an extraschedular basis. As the preponderance of the evidence is against the claim for a TDIU rating, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER An increased 30 percent rating for glomerulonephritis with arterial hypertension is granted. A compensable rating for a parasitic intestinal infection (trichuriasis and necatoriasis) is denied. Service connection for MS is denied. A TDIU rating is denied. ____________________________________________ L.W. TOBIN 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