Citation Nr: 0335747 Decision Date: 12/18/03 Archive Date: 12/24/03 DOCKET NO. 03-02 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Whether a timely substantive appeal was received with respect to the September 13, 2000, rating action which denied the veteran's claim of entitlement to service connection for endometriosis. 2. Entitlement to service connection for endometriosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran, who is the appellant in this case, served on active duty from October 1981 to November 1984. This matter came to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Fargo, North Dakota. FINDINGS OF FACT 1. In a letter, dated September 20, 2000, the RO notified the veteran that it had denied her claim of entitlement to service connection for endometriosis. 2. On July 24, 2001, the RO received the veteran's statement which contained the necessary information for a substantive appeal of her claim of entitlement to service connection for endometriosis. 3. The veteran's endometriosis was first manifested on active duty. CONCLUSIONS OF LAW 1. The veteran timely appealed the RO's September 13, 2000, rating action which had denied her claim of entitlement to service connection for endometriosis. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2003). 2. Endometriosis is the result of disease or injury incurred in service. 38 U.S.C.A. § 1131, 5102, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist During the pendency of this appeal, there was a significant change in the law. 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) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)). That law redefined the obligations of the VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A. In August 2001, the VA published final regulations implementing the VCAA. 66 Fed. Reg. 45620 (August 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326(a)). After reviewing the record, the Board finds that the RO has met its duty to assist the veteran in the development of her claim. Accordingly, there is no need for further development of the evidence in order to meet the requirements of the VCAA. II. The Facts and Analysis In addition to the issue of entitlement to service connection for endometriosis, there is a predicate issue as to the timeliness of the veteran's appeal. An appeal consists of a timely filed Notice of Disagreement (NOD) in writing and, after an Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed. To the extent feasible, the argument should be related to specific items in the SOC. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. Generally, a Substantive Appeal must be filed within 60 days from the date that the RO mails the SOC to the veteran, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C.A. 7105; 38 C.F.R. § 20.302(b). On February 9 and September 13, 2000, the RO denied the veteran's claim of entitlement to service connection for endometriosis. The veteran was notified of those decisions, the last time in a letter dated September 20, 2000. In October 2000, her NOD was received, and in June 2001, she was issued an SOC. On September 26, 2001, the veteran received her substantive appeal (VA Form 9). Although the envelope and attendant postmark were not associated with the claims folder, that appeal was signed on September 24, 2001, more than one year after the notification letter had been mailed. In October 2001, the RO notified the veteran that her appeal was not timely and that the September 2000 decision was, therefore, final. In July 2001, the veteran sent correspondence to her congressman in which she questioned not only the denial of service connection for endometriosis but also the timeliness of her appeal. In August 2001, that correspondence was associated with her claims folder. In November 2002, the veteran's representative also questioned the RO's decision with respect to the issue of timeliness. In a response, dated November 26, 2002, the RO reiterated the reasons that it found the veteran's appeal untimely and informed the veteran that if she disagreed with that decision, she had one year from the date of the letter to appeal. The veteran disagreed with that decision, and in December 2002, the RO received her NOD. In January 2003, the RO issued the veteran an SOC with respect to the timeliness issue. Later that month, the RO received the veteran's substantive appeal. Thus, that issue was perfected for appeal. Although the veteran's VA Form 9, signed on September 24, 2001, was not timely, a review of the evidence discloses that the veteran had earlier perfected her appeal with respect to the issue of entitlement to service connection for endometriosis. Indeed, on July 24, 2001, the RO received correspondence from the veteran in which she requested that her claims folder be transferred from the Fargo RO to the RO in Minneapolis, Minnesota, for further consideration of her claim of entitlement to service connection for endometriosis. Such correspondence was not only timely with respect to the RO's September 2000 rating decision, it contained the information necessary to perfect the veteran's appeal. As such, the issue of entitlement to service connection for endometriosis is ripe for appellate consideration on the merits. Service connection connotes many factors, but basically, it means that the facts, shown by the evidence, established that a particular disease or injury resulting in disability was incurred coincident with active military, naval, or air service, or, if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Even if the disease at issue is initially diagnosed after the veteran's discharge from service, service connection may still be granted when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a particular disability, there must be competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in- service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The veteran's service medical records show that from June 1982 to January 1984, she complained of abdominal and/or pelvic pain on several occasions. Although endometriosis was not reported, the various diagnoses included gastroenteritis, a urinary tract infection, trichomonal vaginitis, and pelvic inflammatory disease. VA medical records show that in January 1987, the veteran again began to experience abdominal pain. In September 1993, she was treated at the Central Plains Clinic, Ltd., for probable endometriosis. In June 1996, following a laparoscopy by T. L. L., M.D., that diagnosis was confirmed. The RO has received a number of opinions as to a possible nexus between the veteran's endometriosis and her abdominal/pelvic pain in service. In February 1999 and March 2001, respectively, Dr. L. and a VA Certified Nurse Practitioner reviewed the veteran's medical records and concluded that it was at least as likely as not that the veteran's endometriosis was first manifested by her abdominal/pelvic pain in service. In July 1999 and August 2000, however, the Chief of Gynecology at the Minneapolis VA Medical Center (MC) and the Vice Chair and Associate Professor of Medicine at the University of North Dakota School of Medicine & Health Sciences - Fargo, also reviewed the veteran's records. The found it unlikely that the veteran's abdominal/pelvic symptoms in service were related to her endometriosis. They acknowledged, however, that such a relationship was possible. Although the presence of endometriosis was not clinically established until several years after service, the foregoing evidence suggests that the veteran's endometriosis was first manifested in service. At the very least, the foregoing evidence is in relative equipoise with respect to that question. That is, there is an approximate balance of evidence both for and against the veteran's claim. Under such circumstances, all reasonable doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for endometriosis is warranted. ORDER The veteran's appeal with respect to the question of timeliness of her substantive appeal is granted. Entitlement to service connection for endometriosis is granted. ____________________________________________ G. H. SHUFELT 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