Citation Nr: 0329046 Decision Date: 10/24/03 Archive Date: 11/04/03 DOCKET NO. 92-10 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for gout. 2. Entitlement to service connection for degenerative joint disease of the cervical spine, left shoulder, both wrists, and both ankles. 3. Entitlement to service connection for renal insufficiency and polycystic kidney as secondary to use of nonsteroidal anti inflammatory drugs (NSAIDS) for treating a service- connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carol L. Eckart INTRODUCTION The veteran had active military service from September 1971 to September 1974. This matter is on appeal to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO denied entitlement to service connection for gout in a February 1996 rating decision and denied entitlement to service connection for degenerative joint disease of the cervical spine, the left shoulder, both wrists and both ankles in a June 1999 rating decision. The Board remanded the issue of entitlement to service connection for gout to the RO November 1998, along with other issues no longer on appeal. The veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in August 2001. A transcript of this hearing is associated with the claims file. In January 2002, the Board disposed of several matters that had been on appeal, but remanded the issues of entitlement to service connection for gout, and degenerative joint disease of the cervical spine, left shoulder, both wrists and both ankles for further development. This matter also comes before the Board from a September 2002 rating decision wherein the RO denied entitlement to service connection for renal insufficiency and polycystic kidney as secondary to NSAIDS use. The issues of entitlement to service connection for gout, and for degenerative joint disease of the cervical spine, the left shoulder, the wrists and the ankles are addressed in the remand portion of this decision. FINDINGS OF FACT 1. VA has met its duty to notify and assist the veteran. 2. The medical evidence reflects long-term treatment of a service-connected left knee disability with NSAIDS. 3. The competent and probative evidence reflects that there is a causal connection between the use of NSAIDS to treat a service-connected left knee disability and the current renal insufficiency and aggravation of a polycystic kidney disability. CONCLUSION OF LAW A kidney disability, manifested by renal insufficiency and polycystic kidney is proximately due to or the result of service connected degenerative joint disease of the left knee. 38 U.S.C.A. § 5107 (West Supp. 2002); 38 C.F.R. § 3.310(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records do not reflect evidence of kidney problems, nor does the veteran allege that any kidney disorder began in service. Rather, the veteran alleges that his kidney disorder was caused or aggravated by the use of medication to treat his service-connected disabilities, including degenerative joint disease of the left and right knees. Service medical records reflect treatment for chronic left knee problems between November 1973 and June 1974, with bone spurring shown on X-ray. He was placed on permanent profile for unstable right knee on his September 1974 separation examination. The RO granted entitlement to service connection for chondromalacia, left knee in a September 1979 rating decision. Private treatment records reflect complaints of left knee pain and no history of renal disease in February 1979. The veteran underwent surgery for a Bakers cyst of the left knee the same month. A post surgery follow up note reflects that he was prescribed Butazolidin Alka for severe arthritic changes in the knee. Treatment records from the 1980's reflect that the veteran was prescribed NSAIDS for his left knee pain. He also was noted to receive NSAIDS for arthritis involving other joints besides the service connected left knee, as shown in April 1984 when he was prescribed Indocin for "migratory arthritis" in his ankles. He was diagnosed with gout around July 1984, and was taking a medication called Xyloprim, to lower the level of uric acid. The veteran was noted to have complaints of left knee swelling possibly due to traumatic arthritis. He underwent arthroscopic surgery for his right knee in early July 1984. In September 1984 he was seen for complaints of catching and giving way of his left knee and was started on anti inflammatory medication consisting of 600 mg of Motrin. He continued to be taking Motrin in October 1984. In December 1986 he was prescribed with Naproxin (also known as Naprosyn) for complaints of pain and swelling of the left knee. In March 1987 he was seen for complaints of the left knee swelling and had fluid aspirated from it. He was noted in July 1987 to be taking Naprosyn for gout and for "other problems." In April 1989, he had multiple complaints including left knee complaints, diagnosed as degenerative joint disease and was prescribed Indocin and Tylenol 3, among others. A VA clinical laboratory report from April 1989 reflects findings of elevated uric acid, which may be the result of gout or may be caused by Wilson's disease, fanconi syndrome and syndrome of inappropriate secretion of vasopressin. He had an acute attack of gout in December 1989. In May 1990 he was noted to have elevated uric acid, although his gout was stable. The veteran continued to take Naprosyn in October 1990, when he was seen for complaints of swelling in the left knee. A physical examination dated in January 1991 yielded findings of a mild liver dysfunction abnormality as well as hypokalemia. The physician recommended treating the hypokalemia with potassium tablets and advised the veteran to limit his alcohol intake. In April 1991 he was said to be in the end stages of osteoarthritis for his left knee. He underwent debridement surgery for the left knee in July 1991 and was given an unspecified pain medication post surgery. He continued to have complaints of left knee pain post surgery but declined further surgery in October 1991. The report of a VA examination dated in March 1994 reflects a diagnosis of severe advanced Grade IV degenerative joint disease of the left knee, but did not address what medications were being used to treat this condition. In June 1994 the veteran was prescribed 500 mg of Naproxin for his left knee complaints. A September 1994 VA orthopedic treatment record reflects that his left knee continued to have pain and instability and the physician prescribed NSAIDS for the left knee arthritis. He is noted to have been prescribed 600 mg of Motrin for complaints that included pain and swelling in his left knee in September 1996. In October 1995 the veteran was assessed with increased creatinine probably secondary to his medications with Colchicine, Prinivil and the use of NSAIDS. He was advised to quit using NSAIDS and Colchicine. He was also noted to have a history of renal cyst with this medication, but the increase in creatinine was felt to be probably secondary to the above factors. In September 1996, he was noted to have a history of kidney disease with renal insufficiency. Private treatment records reflect that the veteran was followed by a kidney disease specialist since July 1997. An October 1997 letter from the specialist states that the veteran had a diagnosis of polycystic kidney disease. His kidney function was monitored by his private physician in subsequent visits. In September 1998 his kidney function appeared to be worsening from the creatinine perspective. He was assessed with renal failure and diagnosed with polycystic kidney disease. In January 1999, the treating physician expressed that the veteran's kidney function was of significant concern and he was therefore afraid to be very generous with arthritis medication. The physician recommended some Tylenol for left shoulder pain complaints, as well as Colchicine. The physician continued prescribing Allopurinal because the veteran was no longer a great candidate for NSAIDS due to his polycystic kidneys. In January 2000 he underwent a total left knee arthroplasty. The report of a January 2001 VA joints examination reflects that the veteran continued to have left knee complaints post surgery and that he took Tylenol as needed for it. He was noted to have to limit his use of pain medication in order to preserve his renal function. He was noted to be on allopurinal and colchicine for gouty arthritis, and used these medications when his knee symptoms became severe. The remainder of this examination addressed the severity of his knee complaints. At an August 2001 Travel Board hearing, the veteran testified regarding issues no longer on appeal. However he did testify that the only pain medicine he could take was Colchinine, Allopurinol and regular Tylenol, because other pain medication was destroying his kidneys. The report of a May 2002 VA genitourinary examination for kidney disease reflects that the claims file was reviewed. The examiner noted that the veteran was being followed by his primary care physician and a nephrologist for polycystic kidney and renal insufficiency. He was noted to be unable to take NSAIDS due to this condition. The examiner noted a history of treatment for gout. The veteran reported that he is unable to take NSAIDS and anti gout medications and only takes Tylenol. The physical examination was significant for a history of gouty and gouty arthritis as well as degenerative joint disease in multiple joints. The diagnoses included polycystic kidney disease. The examiner remarked that the veteran has had a history of polycystic kidney disease and renal insuffiency sine 1997. The examiner opined that because of the renal insufficiency and kidney impairment secondary to polycystic kidney disease, the veteran is unable to take NSAIDS, which would worsen his kidney failure. An August 2002 addendum to the May 2002 VA genitourinary examination contains an opinion that the veteran has renal insufficiency/failure and that this insufficiency/failure is due to the polycystic kidney disease and not due to NSAIDS. However, the examiner noted that due to the renal insufficiency/failure, the veteran cannot use NSAIDS, as this would aggravate/worsen his renal failure. The report of a January 2003 VA examination includes a review of prior medical records and interview with the veteran. He gave a history of multiple joint problems, including his left knee, for which he had undergone multiple surgeries culminating in a total replacement in 2000. He gave a history of having had almost daily use of NSAIDS such as Ibuprofin and Naprosyn from 1979 until he was diagnosed with polycystic kidney disease in the early 1990s. A note from his private physician was reviewed and showed an increase in creatinine over the past 3 years. Following a brief physical examination, the impression included renal insufficiency secondary to polycystic kidney disease and likely aggravated by long term NSAIDS drug usage. Also diagnosed was degenerative joint disease involving the multiple joints, with the knees and left shoulder most affected. The examiner commented that polycystic kidney disease was responsible for about 10 percent of patients with end stage renal disease and that 50 percent of patients became uremic by age 55 to 60 according to the 17th Edition of the Merck Manual. The examiner noted that it was well known that NSAIDS use can adversely affect kidney function, particularly in patients who already have some renal insufficency. The examiner's opinion was that it was as likely as not that the veteran's prolonged NSAIDS use worsened his renal insufficiency related to his polycystic kidney disease. The exact extent of worsening would be difficult to quantitate, but it was as likely as not that the NSAIDS worsened the kidney function to a mild degree. Criteria Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Service connection is also warranted where aggravation of a nonservice-connected disorder is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown 7 Vet. App. 439 (1995). In order to show that a disability is proximately due to or the result of a service-connected disease or injury, the veteran must submit competent medical evidence showing that the disabilities are causally-related. Jones v. Brown, 7 Vet. App. 134, 137 (1994). In the regulations implementing the VCAA of 2000, competent lay evidence is defined as any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R § 3.159(a)(1) (2002). In the regulations implementing the VCAA, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R § 3.159(a)(2) (2002); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002) (38 U.S.C. § 5107(b) was amended by the VCAA of 2000, but with no substantive changes in the particular statute. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); 38 C.F.R. § 3.102 (2002). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2002). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Preliminary Matter: Duty to Notify & to Assist During the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA) became effective. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002). This liberalizing legislation is applicable to the appellant's claim. 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West Supp. 2002). Besides eliminating the requirement that a claimant submit evidence of a well-grounded claim, it provides that VA will assist the claimant in obtaining evidence necessary to substantiate a claim. Specifically, it requires VA to notify the claimant and the claimant's representative, if any, of information required to substantiate a claim. The VCAA also provides for a broader VA obligation to obtain relevant records and advise a claimant of the status of those efforts, and contains an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. VA issued regulations to implement the VCAA in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a) which is effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. In Disabled American Veterans, et al. v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7306, (Fed. Cir. May 1, 2003), the United States Court of Appeals for the Federal Circuit (CAFC) determined that 38 C.F.R. § 19.9(a)(2) is inconsistent with 38 U.S.C. § 7104(a). The CAFC invalidated 38 C.F.R. § 19.9(a)(2) because, in conjunction with the amended regulation codified at 38 C.F.R. § 20.1304, it allows the Board to consider additional evidence without having to remand the case to the agency of original jurisdiction for initial consideration and without having to obtain the appellant's waiver. The CAFC held that this is contrary to the requirement of 38 U.S.C. § 7104(a). The CAFC also determined that 38 C.F.R. § 19.9(a)(2)(ii), which provides "no less than 30 days to respond to notice," is contrary to 38 U.S.C. § 5103(b). The CAFC invalidated 38 C.F.R. § 19.9(a)(2)(ii), which requires the Board "to provide the notice required by 38 U.S.C. [§] 5103(a)" and "not less than 30 days to respond to the notice," because it is contrary to 38 U.S.C. § 5103(b), which provides the claimant one year to submit evidence. The RO made reasonable efforts to obtain relevant records adequately identified by the appellant; in fact, it appears that all evidence identified by the appellant relative to this claim has been obtained and associated with the claims folder. All available service medical records have been obtained, and the veteran has not alleged that additional service medical records exist that have not been associated with the claims file. Private medical records were obtained. Records of VA and private medical treatment were obtained. VA examinations were conducted and copies of the reports are associated with the file. The development was completed in that the nature and etiology of the claimed renal disorder were addressed through the medical evaluation that the RO had requested. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, in the September 2002 rating decision, the RO further notified the veteran of the evidence that is necessary to substantiate his claim. In addition, the RO informed the veteran in the Statement of the Case, and a July 2003 VCAA notification letter of the information, medical evidence, or lay evidence necessary to support his claim. In summary, the record shows that the RO notified the appellant of the evidence considered regarding the issue, and of the reasoning for the rating determinations through the statement of the case and other correspondence pertinent to the current claim. The appellant was afforded the opportunity to submit arguments and evidence in support of the claim. In light of the development completed at the RO, the Board finds that the relevant evidence available for an equitable resolution of the appellant's claim has been identified and obtained. There is no indication that there is any additional relevant competent evidence to be obtained either by VA or by the veteran. Quartuccio v. Principi, 16 Vet App. 183 (2002) Therefore, the Board finds that VA can provide no further assistance that would aid in substantiating the claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). See also Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). In any event, any deficiencies in the duties to notify and to assist, to include those contrary to the CAFC's determination in Disabled American Veterans, et al. v. Secretary of Veterans Affairs, supra constitute harmless error and are not prejudicial to the appellant in view of favorable determination as further addressed below. Secondary Service Connection Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). The veteran's claim of entitlement to service connection is predicated upon a secondary relationship to service-connected disability. The more probative evidence in this case weighs in favor of the veteran's claim. The medical evidence reflects that the veteran's service connected left knee disability had long standing problems that were treated with NSAIDS medications for a lengthy amount of time. As early as 1979, he was shown to have been given NSAIDS in the form of Butizolidin Alka for left knee problems. He was noted to have persistent left knee problems through the 1980's that were treated at various times with Motrin, Indocin and Naproxin. He continued with NSAID usage for left knee complaints through half of the 1990's, with a September 1996 treatment record showing he was given 600 mg of Motrin for complaints that included pain and swelling in his left knee. This is noted to have been prescribed after he was advised in October 1995 to quit using NSAIDS due to abnormal creatinine readings. The VA medical opinions in May 2002 and August 2002 reflect that the veteran's renal insufficiency or failure was caused by a polycystic kidney disease, not by NSAIDS usage. However these opinions, as well as other medical evidence of record, do suggest that usage of NSAIDS can aggravate and worsen the veteran's renal failure. Further clarifying the issue is the January 2003 VA examination report, which contains the examiner's opinion that the veteran's renal insufficiency caused by polycystic kidney disease, was likely aggravated by the veteran's long term usage of NSAIDS. This opinion indicated the worsening by the NSAIDS was to a mild degree. The Board notes that the medical evidence also suggests that the veteran used NSAIDS, not only for the service connected left knee disability, but also for gout and arthritis affecting multiple joints other than the service-connected left knee. However the balance of the evidence clearly shows NSAID usage for left knee complaints over a prolonged period of time. Thus, the Board finds that the probative, competent evidentiary record supports a grant of the claim of service connection for renal insufficiency and polycystic kidney disease based on aggravation as secondary to the service- connected left knee disability. 38 C.F.R. § 3.310 (2002). ORDER Entitlement to service connection for renal insufficiency and polycystic kidney disease as secondary to service-connected degenerative joint disease of the left knee is granted. REMAND This claim must be afforded expeditious treatment by the Veterans Benefits Administration Appeals Processing Center (VBA AMC). The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (CAVC) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs (or VBA AMC) to provide expeditious handling of all cases that have been remanded by the Board and the CAVC. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Upon review of the evidence, the Board finds that due process concerns require a remand in this matter prior to adjudication of the remaining issues prepared and certified for appellate review. There is of record a copy of a Social Security decision dated in February 2002 wherein disability benefits were noted as awarded. This decision cites medical evidence, some of which is already of record, but others, such as a September 2001 consultative examination, do not appear to be associated with the claims file. Therefore, the complete records from the Social Security Administration need to be obtained. The Board observes that additional due process requirements may be applicable as a result of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West Supp. 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Accordingly, this case is remanded for the following: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The VBA AMC should contact the Social Security Administration to obtain copies of the medical records upon which the disability determination was based. If records pertaining to such claim and medical evidence utilized in processing such claim are not available, that fact should be entered in the claims file. 3. The VBA AMC should then conduct any additional development determined to be necessary subsequent to the obtaining of the full records from the Social Security Administration, to include the option of obtaining another VA medical opinion based upon review of these additional records. The VBA AMC should then issue a supplemental statement of the case addressing the remaining issues on appeal, if necessary. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the VBA AMC. ______________________________________________ RONALD R. BOSCH 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