Citation Nr: 0418456 Decision Date: 07/12/04 Archive Date: 07/27/04 DOCKET NO. 03-23 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty from January 1970 to January 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the claims on appeal. Before considering the merits of the veteran's claims, the Board will address a few procedural issues. First, the veteran argues that his service-connected gallbladder disability (characterized as benign recurrent cholangitis, status-post cholecystectomy with adjustment disorder) should be separately rated as cholangitis and status-post cholecystectomy. The RO, however, has explained that the regulations expressly prohibit assigning separate disability ratings to diseases of the digestive system because it violates the fundamental principle related to pyramiding. See 38 C.F.R. §§ 4.113, 4.114 (2003). Nonetheless, it is unclear whether the veteran wishes to file a claim for an increased rating for his gallbladder disorder. If he desires to pursue such a claim, he should do so with specificity at the RO. As the Board does not have jurisdiction over the issue at this time, it is not addressed in this decision. Next, as noted above, the veteran's service-connected disability is characterized as benign recurrent cholangitis, status-post cholecystectomy with adjustment disorder, and currently rated at 30 percent disabling. He maintains that the Board erroneous severed service-connection when it declined to grant a separate compensable rating for an adjustment disorder in the Board's April 2000 decision. By way of clarification, severing service-connection is a very specific action taken under a certain set of regulations. There is no indication that the Board severed service- connection. Nonetheless, if he desires to challenge the Board's April 2000 decision, he is directed to the clear and unmistakable error (CUE) provisions found in 38 C.F.R. §§ 20.1400-20.1411 (2003). Finally, notwithstanding the veteran's argument that his adjustment disorder was severed from his service-connected gallbladder disability, it appears that he has asserted a claim for a psychiatric disorder, separate and apart from the adjustment disorder associated with gallbladder disease. Therefore, the Board will consider this a distinct claim for service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of the claims and has notified him of the information and evidence necessary to substantiate his claims. 2. Service medical records are negative for complaints of, treatment for, or diagnoses of an acquired psychiatric disorder. 3. Post-service medical evidence is negative for a compensable psychiatric disorder for many years, except that an adjustment disorder was found to be related to a service- connected gallbladder disability. 4. The weight of evidence indicates that his current psychiatric symptomatology is not related to an in-service bout of encephalitis. 5. The veteran has a single service-connected disability rating for a gallbladder disability with adjustment disorder currently evaluated at 30 percent disabling. 6. He maintains that he has not worked full-time since the 1991 or 1992, and has an associates degree. He has experience primarily in the banking industry. 7. The veteran's single service-connected disability does not render it impossible for the average person to follow a substantially gainful occupation or render him unable to secure or follow a substantially gainful occupation consistent with his occupational experience and education. 8. The weight of evidence indicates that the veteran is unemployable because of chronic alcoholism. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred in or aggravated by the veteran's period of active duty, nor may a psychosis be presumed to have been incurred in such service. 38 U.S.C.A. § 1110, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2003). 2. The criteria for the assignment of a total rating by reason of individual unemployability due to a service- connected disability have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to Service Connection for an Acquired Psychiatric Disorder, Other Than an Adjustment Disorder Associated with a Gallbladder Disability Under the relevant regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2003). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2003). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2003). In addition, where a veteran served ninety days or more during a period of war or during peacetime after December 31, 1946, and certain diseases, such as psychosis, become manifest to a compensable degree within one year after the veteran's military service ended, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d) (2003). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran contends, in essence, that he developed a psychiatric disorder as the result of a bout of encephalitis (with meningitis) during active duty. Service medical records are negative for complaints of, treatment for, or diagnosis of a chronic psychiatric disorder. The January 1972 separation examination reveals a normal psychiatric examination. Therefore, the Board finds no evidence of a chronic psychiatric disorder during military service. Parenthetically, the Board notes that neither encephalitis nor meningitis are service-connected as he has been found to have no chronic residuals. Post-service medical evidence reveals that the veteran was treated as early as 1972 for alcoholism. However, there is no evidence that he was treated for a psychosis within one year of military separation and the provisions of 38 C.F.R. §§ 3.307, 3.309 are not for application. Moreover, it appears that he was hospitalized in November 1980 with chronic alcoholism. In April 1982, he filed a claim for a nervous condition. In July 1982, he was diagnosed with severe anxiety with alcohol abuse. In a July 1986 VA examination report, he complained of stress and was diagnosed with alcohol abuse and was noted to be under treatment. In 1986, he was granted service connected for a gallbladder disorder and assigned a 10 percent disability rating. In an October 1987 letter, his private physician related that the veteran had experienced a "huge psychological impact" due to his gallbladder disorder and that he had developed nervousness and insomnia associated with the condition. In a December 1987 VA examination, he was diagnosed with an adjustment disorder secondary to his physical condition, which was noted to be service-connected. In a February 1988 rating decision, his nervous condition was found to be secondary to his gallbladder disability and the service- connected disability was recharacterized as benign recurrent cholangitis, status post cholecystectomy with adjustment disorder and the disability rating was increased from 10 to 30 percent. Since the late 1980s, the veteran has filed multiple claims in an attempt to obtain a higher disability rating. As an example, in June 1988, he filed a claim for an increase in his "service nervous condition." In a June 1989 medical statement, a VA physician reported that the veteran had a lot of anxiety and nervousness "due to his [gallbladder] condition." After reviewing the medical evidence of record, including VA psychiatric examinations and private medical records, the Board denied the claim for a higher rating by decision dated in September 1989. At no time did any private or VA physician associate the veteran's psychiatric symptoms directly with military service, except as his complaints related to a gallbladder disability. Evidence tending to support the veteran's claim of direct service-connection includes a February 1996 letter from a private physician (neurologist) who suggested a relationship between the veteran's in-service encephalitis and psychiatric symptoms. However, the Board tends to place less probative value on this evidence as no basis was given for the opinion. Further, the medical opinion suggesting a relationship between a psychiatric disorder and an in-service bout of encephalitis was subsequently vigorous challenged in an extensive VA examination report dated in December 1997 (discussed in more detail below). On balance, the Board places more weight on the VA examination as it was conducted by a board of two psychiatrists, the examiners had the claims file for review, they specifically discussed the various medical evidence contained in the claims file, they obtained a reported history from the veteran, and conducted a complete examination, including neuropsychiatric testing and a social and industrial survey. There is no indication that the VA examiners were not fully aware of the veteran's past medical history or that they misstated any relevant fact. Therefore, the Board finds the VA examiners' opinion to be of greater probative value. Further, the Board has considered a letter from a private neuropsychiatrist dated in March 1996 referencing that the veteran's psychiatric symptomatology was related to his chronic gastrointestinal (gallbladder) disorder. The final diagnosis was schizoaffective disorder. In an August 1996 VA mental disorders examination report, the veteran noted that his psychiatric complaints were related to encephalitis and meningitis that he had while in service. He alternatively felt that his depression and schizophrenia were due to a service-connected gastric disability. After a mental status examination, the final diagnoses included alcohol dependence, in allegedly remission, anxiety disorder with depressive features, and borderline personality traits. The examiner concluded that the veteran's neuropsychiatric condition was not related to his gastric service-connected disability. Due to the above-referenced conflict in the psychiatric diagnoses and questions of whether his psychiatric complaints were related to an in-service bout of encephalitis, associated with a service-connected gastrointestinal disability, or considered a separate and distinct entity, the Board remanded the issue by decision dated in September 1997. In a December 1997 VA mental disorders examination report, it was noted that the veteran attributed all of his physical complaints (liver disease, loss of vision, hearing loss, gastrointestinal problems, etc.) to a bout of encephalitis incurred during active duty. A board of two examiners also noted that the veteran had a long-standing history of alcoholism. After the veteran was interviewed and examined, administered neuropsychological testing, and underwent a social and industrial survey, the examiners thoroughly reviewed the claims file and stressed that there was no indication of psychiatric symptomatology during military service, that the veteran was able to hold a very good job in the banking industry for a number of years. They noted that he had lost multiple jobs due to heavy drinking. They reported that neuropsychiatric testing reflected marked exaggeration of symptoms and discussed some of the contradictions in the veteran's story over the years. They also highlighted that the physician who diagnosed schizophrenia was a specialist in internal medicine (apparently as opposed to psychiatry) and had gave no description whatsoever of any symptoms consistent with the condition in the veteran. The examining board of two physicians concluded that there was no relationship between the veteran's mental deficits and viral encephalitis and indicated that the reason he was unable to maintain a job was due to alcohol dependence. The final diagnoses included substance use disorder, alcohol dependence, in apparent remission, anxiety disorder with depressive features, and very strong borderline personality features with anti-social traits. In a February 1998 private medical report, the treating physician indicated that the veteran was a former bank employee for seven years but had been unemployed since 1992. The veteran attributed his psychiatric complaints to a bout of encephalitis viral meningitis. It was noted that he was depressed, lacked appetite, had decreased energy, altered sleep patterns, sadness, isolation, feelings of worthlessness, loss of interest in pleasurable activities, and poor organization, among other things. The examiner indicated that he had first treated the veteran in 1993 and on a fairly regular basis since that time. The final diagnoses included schizoaffective disorder, bipolar type. The examiner concluded that the veteran was totally and permanently disabled due to his condition. In a May 1999 VA mental disorders examination report, the VA examiner (one of the members of the December 1997 board of psychiatrists) stressed that the veteran's psychiatric diagnosis was not an adjustment disorder but was noted in the previous VA examination as alcohol dependence, anxiety disorder with depressive features, and borderline personality trait. She noted that an adjustment disorder had a very specific set of criteria. She identified the various characteristics of an adjustment disorder and related how the veteran failed to meet the criteria. She stressed that the veteran's persistent symptoms have been those of chronic alcoholism and that his principal diagnosis was alcohol dependence. The examiner remarked that the veteran changed the version of his story depending on the purpose of the examination and had variously attributed his psychiatric complaints to viral encephalitis and to a liver disorder. She felt that this inconsistency raised the question as to reliability of the veteran's statements regarding his emotional problems. In an August 2001 VA mental disorders examination report, the examining psychiatrist (the same physician as previously) indicated that she had extensively studied, reviewed, and examined the veteran repeatedly and referenced the previous examination reports contained in the claims file. She stressed that his psychiatric symptoms were not related to a bout of meningitis during service. She also indicated that the diagnoses were properly alcohol dependence in apparent remission, generalized anxiety disorder with very strong somatization features, and borderline and antisocial personality features. In a follow-up medical report, the veteran's private psychiatrist indicated that he had treated the veteran since 1993 and had never seen him in a drunk state. He related that he could not say the veteran was an alcohol dependent person. He concluded that the veteran was emotionally ill and, despite good compliance, had never shown a satisfactory level to psychotherapy and medications. The Board has considered this opinion but finds it contrary to the weight of medical evidence. There is no question that the veteran has been treated for alcoholism, including his own admission in February 1996 that he mixed Ativan with alcohol and jumped out a window. As such, the Board finds the private physician's opinion as to the veteran's alcoholism of little probative value. Based on the above evidence, the Board finds that the veteran's current psychiatric disorder, variously diagnosed, is not related to military service. As previously noted, the Board places significant probative value on a thoroughly written VA examination report dated in December 1997, which has been reaffirmed by the VA examining psychiatrist on several more recent occasions. Thus, to the extent the veteran claims that his psychiatric disorder is related to a bout of encephalitis during military service, the claim must be denied. Further, even if the Board accepts the veteran's diagnosis as schizoaffective disorder or schizophrenia, which has been strongly challenged by two VA examiners, there is no evidence that those disorders were either incurred in or aggravated by military service. As noted above, service medical records are negative for a psychiatric disorder and it appears that he was not diagnosed with schizoaffective disorder or schizophrenia until 1993, at the earliest, some 20 years after service separation. The Board places significant probative value on the, at a minimum, 20-year gap between discharge from military service and the first reported medical history of a psychiatric disorder distinct from a gallbladder disability or associated with non-compensable alcoholism and finds that the post-service symptomatology is too remote in time to support a finding of in-service onset, particularly given the lack of continuity of symptomatology during the multi-year gap between military discharge in 1972 and the first mention of the disorders in the early 1990s. See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). While the VA examiners also question the diagnosis of adjustment disorder in conjunction with his gallbladder disability, for which the veteran is currently service- connected, the Board will not address this issue as he has carried this diagnosis for over 16 years. II. Entitlement to a Total Disability Rating Based on Individual Unemployability The veteran contends that he is unable to secure or follow a substantially gainful occupation by reason of his service- connected gallbladder with adjustment disorder disability and that a total disability rating for compensation purposes based on individual unemployability by reason of his service- connected disability is warranted. After a review of the record, the Board finds that the veteran's contentions are not supported by the evidence, and his claim is denied. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities; provided that, if there is only one such disability, this disability is ratable at 60 percent or more, and that if there are two or more disabilities, there is at least one disability ratable at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2003). Veterans who fail to meet these percentage standards but are nonetheless unemployable by reason of service-connected disabilities may still be rated as totally disabled. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b) (2003). In addition, the Board has considered 38 C.F.R. § 3.340 which provides that a total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. In other words, 38 C.F.R. § 3.340 deals with the average person standard and 38 C.F.R. § 4.16(a) deals with the particular individual. The award of a total rating requires a showing that the veteran is precluded from employment due to service connected disabilities. The adverse affects of advancing age may not be considered in support of the claimed benefit. 38 C.F.R. § 4.19 (2003). In his claim for a total disability rating dated in 2001, the veteran noted that he had three years of college education and had worked as a data processing manager. There is also a suggestion in the claims file that he has an Associate's Degree. He apparently had last worked in 1991 (or maybe 1992) and was receiving Social Security Administration benefits. In support of his claim, the veteran submitted a September 2002 statement from his private psychiatrist to the effect that he was unemployed because of physical and emotional problems. The physician remarked that the veteran had been suffering physically and emotionally due to chronic gallbladder or liver disease. He concluded that the veteran had never shown a satisfactory level of response to psychotherapy and medication. On the other hand, a VA General Medical examination report dated in August 2001 reflected that there was no somatic basis for the veteran's unemployability. The examiner referenced the August 2001 psychiatric report to address the issue of unemployability. Nonetheless, this reference to the lack of a somatic basis for the veteran's employment indicates that the examiner found that the veteran's service- connected gallbladder disease was not the basis of his unemployability. Turning to the August 2001 psychiatric examination report, the examining psychiatrist essentially concluded that the veteran's diagnoses remained alcohol dependence, in apparent remission, generalized anxiety disorder with strong somatization features, and borderline and antisocial personality features. The examiner referenced the previous examination reports undertaken on this issue and indicated that she was not going to repeat all the information over again. Of note, the Board places significant probative value on the extensive VA examination report dated in December 1997 given by this same examiner that the veteran's inability to maintain employment was due to chronic alcoholism. In denying the veteran's claim, the Board notes that he does not have a single disability rated at 60 percent. As noted above, his only service-connected disability is a gallbladder disability with an adjustment disorder, currently evaluated at 30 percent disabling. Therefore, he fails to meet the schedular mandate of a total rating. Nonetheless, the threshold question is whether the veteran's service-connected disability is sufficient, in and of itself, to render him unable to secure or follow a substantially gainful employment. To that end, the Board has carefully considered the medical evidence and finds that the medical evidence does not show that the veteran's service-connected disability precludes him from securing or following substantially gainful employment. Significantly, based on the evidence outlined above, the Board finds that the weight of medical evidence shows that veteran's inability to work has been associated with a long history of alcohol use. Specifically, the medical evidence reflects that he was hospitalized in 1972 and 1980 with chronic alcoholism. A March 1980 progress note indicated that he had lost jobs secondary to alcohol abuse. In a 1982 mental hygiene clinic note, he was reported to be actively drinking. Moreover, in a July 1982 medical note he reported that he had lost "one job after another" due to heavy drinking. Further, in February 1996, he acknowledged having mixed Ativan with alcohol and jumped out a window. Finally, in a December 1997 VA examination report, undertaken specifically to address the issue, it was noted that "the reason for the veteran being unable to maintain a job during period following military service, was his Alcohol Dependence." The fact that the veteran is unemployed is not enough. The threshold question is whether his service-connected disorder, without regard to any nonservice-connected disorders or advancing age, make him incapable of performing the acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). He has not presented, nor has the Board found, circumstances that place this veteran in a different position than other veterans rated with a single, service-connected disability rated at 30 percent disabling. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of such veteran. See 38 C.F.R. §§ 4.1, 4.15 (2001); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The veteran's gallbladder disability with an adjustment disorder is not, in the Board's determination, so severely disabling as to render him or the average person similarly situated unable to secure and follow substantially gainful employment, nor does the evidence of record reflect that this condition would render him individually unable to follow a substantially gainful occupation. Thus, it is the Board's determination that the veteran is not precluded from performing a substantially gainful occupation as a result of his service-connected disability. Accordingly, entitlement to a total disability rating based on individual unemployability is not warranted. In reaching this conclusion, the Board has considered 38 C.F.R. § 3.321(b), 4.16(b), which provides that, to accord justice to the exceptional case where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity due exclusively to the service-connected disability or disabilities may be assigned. The governing norm of these exceptional cases is a finding that the case presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards. Here, the Board finds the evidence in its entirety does not present such an exceptional or unusual disability picture as to render impractical the application of regular schedular standards. Therefore, the Board finds that he is not entitled to a total evaluation under the applicable provisions of 38 C.F.R. Parts 3 and 4. In sum, the Board finds it significant that the various examiners have concluded that the veteran has been unable to keep a job because of a long history of alcohol abuse and that he has been chronically unemployed due to alcoholism. Based on the evidence of record, the Board can only conclude that the primary cause of any unemployability is his addiction to alcohol, rather than his service-connected gallbladder and adjustment disorder. As such, the claim must be denied. In denying the veteran's claim, the Board has considered the Veterans Claims Assistance Act of 2000 (VCAA), which, among other things, redefined the obligations of 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. The law also eliminated the concept of well-groundedness and is applicable to all claims filed on or after the date of enactment or those filed before the date of enactment but not yet final as of that date. 38 U.S.C.A. § 5103A (West 2002). Additionally, in August 2001, VA issued regulations implementing the provisions of VCAA "to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits." In this case, VA's duties have been fulfilled to the extent possible with regard to the issue decided in this decision. First, VA must now notify the appellant of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim, and indicate which portion of that information and evidence, if any, is to be provided by the appellant and which portion, if any, the Secretary will attempt to obtain on behalf of the appellant. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Next, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in that endeavor. 38 U.S.C.A. § 5103A (West 2002). The final rule implementing the VCAA was published on August 29, 2001. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA as of that date, with the exception of the amendments to 38 C.F.R. § 3.156(a) relating to the definition of new and material evidence and to 38 C.F.R. § 3.159 pertaining to VA assistance in the case of claims to reopen previously denied final claims (the second sentence of § 3.159(c) and § 3.159(c)(4)(iii)), which apply to any claim to reopen a finally decided claim received on or after August 29, 2001. See 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)). In July 2001, the RO notified the veteran about his rights under the VCAA and informed him of what evidence he needed to submit in support of his claims. He was told what evidence had been considered, where to send the evidence, and that VA would help him obtain evidence. In July 2003, the RO provided him with a Statement of the Case which set forth all pertinent regulations regarding his claims, and also included the new duty to assist provisions of 38 C.F.R. § 3.159. In addition, the Board notes that the veteran has undergone multiple VA examinations specifically to address the issues on appeal, and VA and private medical evidence has been associated with the claims file. In view of the foregoing, the Board finds that all reasonable efforts to secure and develop the evidence that is necessary for an equitable disposition of the claims on appeal have been made by the agency of original jurisdiction. VA has substantially met the requirements of the VCAA. Every possible avenue of assistance has been explored, and the veteran has had ample notice of what might be required or helpful to his case. Therefore, the Board finds that the mandates of the VCAA have been satisfied. The Veterans Claims Court decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004) held, in part, that a VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." In this case, although the VCAA notice letter that was provided to the appellant does not contain the "fourth element," the Board finds that the appellant was otherwise fully notified of the need to give to VA any evidence pertaining to his claims. As noted above, he was informed of his due process rights by letter dated in July 2001 and was provided with the provisions of the new law in a July 2003 Statement of the Case. All the VCAA requires is that the duty to notify be satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. ORDER The claim for entitlement to service connection for an acquired psychiatric disorder is denied. The claim for entitlement to a total disability rating based on individual unemployability is denied. ____________________________________________ Gary L. Gick 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