Citation Nr: 0419818 Decision Date: 07/22/04 Archive Date: 08/04/04 DOCKET NO. 03-23 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased original evaluation for schizophrenia, currently rated as 40 percent disabling. 2. Entitlement to an effective date earlier than February 7, 1997 for the grant of service connection for schizophrenia. REPRESENTATION Appellant represented by: John F. Cameron, Attorney ATTORNEY FOR THE BOARD Robert C. Scharnberger, Counsel INTRODUCTION The veteran served on active duty from April 1982 to April 1983. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2002 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). This case was originally before the Board on an application to reopen a previously denied claim of entitlement to service connection on the basis of new and material evidence. In a decision dated in September 2002, the Board granted reopening, and granted service connection for schizophrenia. The RO assigned a 40 percent evaluation and assigned an effective date for entitlement to service connection of February 7, 1997, the date of the reopened claim. In arriving at the 40 percent disability evaluation, the RO determined that the disability was 50 percent disabling, but deducted 10 percent for the level of disability existing prior to service. The veteran has appealed seeking a higher original rating, and an earlier effective date. The Board notes that the veteran's claim of entitlement to service connection for schizophrenia was originally denied by the Board in October 1985. The claim was again denied by the Board in October 1986, June 1990 and February 1994. The Board notes that the veteran has not filed a claim for reversal of any of these decisions on the basis of clear and unmistakable error (CUE). FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran's claims has been obtained by the RO. 2. The veteran's schizophrenia is manifested by impaired impulse control, mild auditory hallucinations, some delusional thinking, some feelings of paranoia and anxiety, and a mild to moderately constricted affect, and a global assessment of functioning (GAF) score of 55. 3. The veteran's schizophrenia is not manifested by total occupational and social impairment with symptoms such as gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. 4. Prior to entry into service, the veteran's schizophrenia was well controlled by medication and the veteran was not psychotic. 5. The veteran filed his claim seeking to reopen a claim of entitlement to service connection for schizophrenia on February 7, 1997. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation of 60 percent, and no higher, for the veteran's service-connected schizophrenia are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.322, 4.7, 4.130, Diagnostic Code (DC) 9403 (2003). 2. The criteria for an effective date earlier than February 7, 1997 for a grant of service connection for schizophrenia have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background As an initial matter, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159(b) (2003); see Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(C) (2003). The November 2002 rating decision and the March 2003 Statement of the Case (SOC) advised the veteran of the laws and regulations pertaining to his claim. These documents informed the veteran of the evidence of record and explained the reasons and bases for denial. The veteran was specifically informed that his claim for an increased original rating for schizophrenia was being denied because the medical evidence did not show that his disability met the criteria for a higher rating. The veteran was specifically informed that his claim for an effective date earlier than February 7, 1997 for entitlement to service connection for schizophrenia was being denied because that was the date of the claim and the laws and regulations do not allow for an earlier date. The SOC made it clear to the veteran that in order to prevail on his claims, he would need to present evidence that his disability met the criteria for a higher rating, or that the February 7, 1997 date was incorrect and that some earlier date was the actual date of claim. The Board notes that the veteran has not filed a claim of CUE with respect to any final Board or RO decision. If a claim of CUE was successful with respect to an earlier Board decision to deny service connection for schizophrenia, then the veteran might be entitled to an earlier effective date. The RO sent a letter dated in October 2003 that told the veteran about the VCAA and informed him what evidence the RO would obtain and what he needed to do. This letter asked the veteran to provide any evidence he had. The RO obtained service medical records, VA and private treatment records, records from the Social Security Administration, statements from the veteran's family, and provided the veteran with a VA examination in October 2002. The veteran has not indicated that there is any other evidence available. Thus, on appellate review, the Board sees no areas in which further development is needed. The RO has essentially met the requirements of the VCAA, and there would be no benefit in developing this case further. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Under these circumstances, adjudication of this appeal, without referral to the RO for further consideration of the claim under the VCAA, poses no prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. at 394; VAOPGCPREC 16-92. The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, a substantially complete application was received in February 1997. Thereafter, the claims for an increased rating and for an earlier effective date were denied in the SOC dated in July 2003. The RO sent a letter related to the VCAA to the veteran in October 2003. This notification was after the July 2003 SOC. Only after that rating action was promulgated did the AOJ provide notice to the claimant regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. Because the VCAA notice in this case was not provided to the veteran prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not address whether, and, if so, how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that a notice error of this kind may be non-prejudicial to a claimant. The Court in Pelegrini found, on the one hand, that the failure to provide the notice until after a claimant has already received an initial unfavorable AOJ determination, i.e., a denial of the claim, would largely nullify the purpose of the notice and, as such, prejudice the claimant by forcing him to overcome an adverse decision, as well as substantially impair the orderly sequence of claims development and adjudication. Pelegrini, 17 Vet. App. at 421-422. On the other hand, the Court acknowledged that the Secretary could show that the lack of a pre-AOJ decision notice was not prejudicial to the appellant. Id. ("The Secretary has failed to demonstrate that, in this case, lack of such a pre-AOJ-decision notice was not prejudicial to the appellant."). In light of these two findings on prejudice, the Board finds that the Court in Pelegrini has left open the possibility of a notice error being found to be non-prejudicial to a claimant. To find otherwise would require the Board to remand every case for the purpose of having the AOJ provide a pre-initial adjudication notice. The only way the AOJ could provide such a notice, however, would be to vacate all prior adjudications, as well as to nullify the notice of disagreement and substantive appeal that were filed by the appellant to perfect the appeal to the Board. This would be an untoward result. There is no basis in this case for concluding that harmful error occurs simply because the claimant received VCAA notice after an initial adverse adjudication. Moreover, while strictly following the express holding in Pelegrini would require the entire rating process to be reinitiated when notice was not provided prior to the first agency adjudication, this could not have been the intention of the Court, otherwise it would not have taken "due account of the rule of prejudicial error" in reviewing the Board's decision. See, 38 U.S.C.A. § 6261(b)(2); see also, Conway v. Principi, No. 03-7072 (Fed. Cir. Jan. 7, 2004) (There is no implicit exemption for the notice requirements contained in 38 U.S.C.A. § 5103(a) from the general statutory command set forth in section 7261(b)(2) that the Veterans Claims Court shall "take due account of the rule of prejudicial error."). In reviewing AOJ determinations on appeal, the Board is required to review the evidence of record on a de novo basis and without providing any deference to the AOJ's decision. As provided by 38 U.S.C.A. § 7104(a), all questions in a matter which under 38 U.S.C.A. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary, and such final decisions are made by the Board. Because the Board makes the final decision on behalf of the Secretary with respect to claims for veterans benefits, it is entirely appropriate for the Board to consider whether the failure to provide a pre-AOJ initial adjudication constitutes harmless error, especially since an AOJ determination that is "affirmed" by the Board is subsumed by the appellate decision and becomes the single and sole decision of the Secretary in the matter under consideration. See, 38 C.F.R. § 20.1104. All the VCAA requires is that the duty to notify is satisfied, and that claimants be 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). Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the appellant in October 2003 was not given prior to the first AOJ adjudication of the claim, the notice was provided by the AOJ prior to the transfer and certification of the appellant's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, notwithstanding Pelegrini, to decide the appeal would not be prejudicial error to the claimant. All the VCAA requires is that the duty to notify is 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). The Board notes that the Court has concluded that the VCAA does not require a remand where the appellant was fully notified and aware of the type of evidence required to substantiate his claims and that no additional assistance would aid in further developing his claims. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The veteran has specifically stated that there is no additional evidence available. When, as here, there is extensive factual development in a case, and there is no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, the VCAA does not require further assistance. Wensch v. Principi, 15 Vet App 362 (2001); Dela Cruz; see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). II. Increased rating for schizophrenia Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2003). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2001); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. However, In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, the Board will consider all evidence of record. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2003). A rating of 50 percent is warranted for schizophrenia when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411 (2003) A higher rating, of 70 percent, requires disability reflecting deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. The maximum schedular rating, of 100 percent, requires total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. Id. The veteran has been in treatment for his schizophrenia since service. Treatment records from East Central Mental Health and Retardation show that the veteran has been treated for schizophrenia with medication and therapy. The notes indicate the veteran is suffering from paranoia, and exhibiting illogical thoughts, and social withdrawal. A letter from the veteran's treating physician at East Central Mental Health, Dr. Fernando Lopez, dated June 19, 2002, indicates that the veteran is still suffering from schizophrenia which is treated with drugs and which is debilitating. Dr. Lopez completed a report on the veteran's functional capacity on June 18, 2002, which indicated that the veteran had moderately severe impairment of his ability to relate to other people, his range of daily activities, and his ability to maintain personal hygiene. Dr. Lopez stated that the veteran suffered from a moderately severe degree of constriction of interests and suggested the veteran suffered from a moderately severe to severe limitation in his ability to function in a work environment. According to the report, the primary goal in treatment with the veteran is just to be able to maintain him in the community and away from psychiatric hospitalization. Medical records from the Social Security Administration primarily relate to the veteran's condition in the early 1980s and do not address his current level of disability. The veteran underwent a VA examination in October 2002. The veteran indicated that he had been hospitalized several times over the years but that the most recent hospitalization was in 1996. He complained of mild auditory hallucinations, which are much decreased from the early 1980s, complained of nightmares, and had poor impulse control. The veteran did report some feelings of paranoia and anxiety, but denied homicidal or suicidal ideation. The veteran did not report any thought insertion, thought broadcasting, or thought control, although he did suggest that his brain was rotting away. The examiner noted that the veteran had a disheveled appearance with uncombed hair and untrimmed beard. The veteran was cooperative and had an okay mood during the exam but with a mild to moderately constricted affect. The veteran was alert and oriented in all spheres. There was no indication of homicidal or suicidal ideation and the veteran's thought process was coherent. There was evidence of delusional thinking and mild auditory hallucinations. The veteran was diagnosed with paranoid schizophrenia and the examiner provided a GAF score of 55, which is indicative of moderate symptoms (e.g. flat affect or circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with peers or co- workers). Based on the above evidence, the Board finds that a rating of 70 percent for the veteran's schizophrenia is warranted, but no higher. The evidence does not show that the veteran's schizophrenia symptoms more closely approximate the criteria for the next higher rating, of 100 percent. A GAF score provided by the VA examiner is 55, which is indicative of moderate symptoms and might suggest a 50 percent rating is warranted. However, the veteran suffers from many symptoms suggesting a 70 percent rating is correct including impaired impulse control, neglect of personal appearance and hygiene, difficulty adapting to stressful circumstances (including work), and an inability to establish and maintain effective relationships. Dr. Lopez indicated that the veteran suffered from moderately severe to severe difficulty in a work environment, and that he suffered from a moderately severe restriction in his daily activities and his ability to maintain personal hygiene. The Board finds that the veteran's symptoms most closely approximate the 70 percent disability rating. 38 C.F.R. § 4.130, DC 9203 (2003). The Board notes that the veteran suffers from some of the symptoms listed under the criteria for a 100 percent rating including some delusions and auditory hallucinations, however, the overall disability picture more closely approximates the criteria for a 70 percent rating. The veteran does not show evidence of gross impairment of thought processes or communication, or grossly inappropriate behavior, there is no evidence of homicidal or suicidal ideation, and no evidence of disorientation or memory loss. In addition, the GAF score of 55 on VA examination does not suggest that the veteran is so severely disabled as to warrant a 100 percent rating in that this contemplates moderate occupational difficulties whereas a 100 percent rating contemplates total occupational impairment. When the Board granted service connection for schizophrenia in September 2002, it did so on the grounds that a pre- service disability had been aggravated by service. When a pre-service disability is aggravated by service, the actual disability rating should reflect only the degree of disability over and above the degree of disability existing at the time of entry into service. It is necessary to deduct from the present evaluation the degree, if ascertainable, of disability existing at the time of entrance into active service, in terms of the rating schedule. 38 C.F.R. § 3.322 (2003). The veteran's service entrance examination shows no psychiatric disability and it is marked normal. The veteran was hospitalized for schizophrenia in the 1970s prior to entrance into service and was treated with medication. A report from Dr. Joseph Houston, dated in June 1978, reveals that the veteran was being medicated for schizophrenia and that he was not psychotic at that time but that he could easily become psychotic if placed under any particular stress. At the time of that examination, the veteran's schizophrenia was controlled with medication and there were few, if any, symptoms. The veteran's current physician, Dr. Lopez, stated that the records indicated the veteran's schizophrenia was well-controlled at the time of his entrance into service. The Rating Schedule provides for a 10 percent disability rating if there is "occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication." 38 C.F.R. § 4.130, DC 9403 (2003). Here, the evidence is that the veteran's schizophrenia was controlled by medication prior to entrance into service. Therefore, the veteran's schizophrenia is found to have been 10 percent disabling at service entrance. Subtracting that 10 percent from the current 70 percent disability rating yields a current disability rating of 60 percent for the veteran's service-connected schizophrenia. 38 C.F.R. §§ 3.322, 4.130, DC 9403 (2003). II. Effective Date. With regard to claims for compensation VA law and regulations provide that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore, unless specifically provided otherwise. 38 U.S.C.A. § 5110(a) (West 2002). Section 5110(b)(1) provides otherwise by stating that the effective date of an award of disability compensation will be the day following the date of discharge or release if application therefore is received within one year from such date of discharge or release. The regulations provide the same, that the effective date of a claim for disability compensation shall be the day following release from active service if the claim is received within one year after separation from service; otherwise date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2003). With respect to new and material evidence, other than service department records, submitted to reopen finally denied claims, the regulations provide that the effective date will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(r). In this case, the new and material evidence consisted of non-service department records; accordingly, the earliest possible effective date of the award would be the date of receipt of claim. In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 (West 2002) refer to the date an "application" is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2003); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant or his duly authorized representative may be considered an informal claim. Such claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. §§ 3.155. Under some circumstances, the date of outpatient or hospital treatment or date of admission to VA or uniformed services hospital will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(1) (2003). There is no such indication of an informal claim of this type in this case. The record reflects that on February 7, 1997, the veteran filed a claim seeking to reopen his claim of entitlement to service connection for schizophrenia. The regulations specifically provide that the effective date of a claim for compensation will be the date of receipt of claim, which in this case is February 7, 1997. 38 C.F.R. § 3.400(q)(r) (2003). Therefore, based on the law and regulations, the earliest effective date that can be assigned is the date of claim, February 7, 1997. The Board notes the veteran's disagreement with this date. Although sympathetic to this claim, the Board cannot grant an effective date earlier than the date the claim to reopen was received. There is nothing in the record to suggest that VA actually received a claim earlier than February 7, 1997. The law and the regulations are controlling in this case. Sabonis, 6 Vet. App. 426. Therefore, the Board finds that the criteria for assignment of an effective date earlier than February 7, 1997 for the grant of service connection for schizophrenia are not met. The Board notes that the February 7, 1997 date represents a claim to reopen a previously finally decided claim. The veteran has not asserted clear and unmistakable error in any previous Board decision. If an earlier Board decision is found to be erroneous pursuant to a claim for CUE, then the date of the veteran's grant of entitlement to service connection may be affected. ORDER Entitlement to an increased original evaluation for schizophrenia to 60 percent is granted, subject to regulations governing awards of monetary benefits. Entitlement to an effective date earlier than February 7, 1997, for the grant of entitlement to service connection for schizophrenia, is denied. ____________________________________________ C.W. SYMANSKI 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