Citation Nr: 0400725 Decision Date: 01/09/04 Archive Date: 01/22/04 DOCKET NO. 02-00 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for polycythemia vera, claimed as secondary to Agent Orange exposure. 2. Entitlement to service connection for the residuals of a brain stem stroke, claimed as due to polycythemia vera. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In March 2003, the Board denied the veteran's appeal for entitlement to service connection for a skin rash, to include as due to Agent Orange exposure. At that time the Board deferred a decision as to the issues listed on the first page of this decision pending additional development. In June 2003, the Board requested a medical expert opinion from a specialist in hemic disorders in the Veterans Health Administration of the VA pursuant to 38 C.F.R. § 20.901. The Board notified the veteran and his representative of the request for expert medical analysis in his case by letter dated in June 2003. An expert medical opinion dated in July 2003 was received and associated with the claims file. By a letter dated December 5, 2003, the veteran's representative was furnished a copy of the opinion and allowed 60 days for a response pursuant to 38 C.F.R. § 20.903. The representative presented arguments in support of the veteran's claim later in December 2003 and the case is now ready for appellate review. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of the claims on appeal and has notified him of the information and evidence necessary to substantiate his claims. 2. The veteran's currently-diagnosed polycythemia (regardless of whether diagnosed as polycythemia vera or secondary polycythemia) is not recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 3. Chronic myelogenous leukemia has not been recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 4. There is no in-service evidence of polycythemia vera or any other blood disorder. 5. The veteran's brain stem stroke was not the result of a service-connected disability. CONCLUSIONS OF LAW 1. Polycythemia was not incurred or aggravated in service, and may not be presumed to have been incurred or aggravated in service, including due to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2003). 2. The residuals a brain stem stroke, claimed as due to polycythemia vera, were not incurred in or aggravated by the veteran's period of active duty. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. § 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims that he was exposed to Agent Orange during his military service in Vietnam. He maintains that he developed polycythemia vera as a result. He further asserts that he suffered a brain stem stroke in 1991 as a result of polycythemia vera. Relevant Regulations. 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). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant 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). In addition to the regulations governing entitlement to service connection outlined above, for purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service-connection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (as amended). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. 38 C.F.R. § 3.309(e) (2003). Chloracne, or other acneform disease, may be presumed to have been incurred during active military service as a result of exposure to Agent Orange if it is manifest to a degree of 10 percent within the first year after the last date on which the veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6)(ii) (2003). If the rebuttable presumptions of 38 C.F.R. § 3.307(d) are also not satisfied, then the veteran's claim must fail. The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 (1994). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Veterans Claims Court has held that where the issue involves medical causation, competent medical evidence that shows that the claim is plausible or possible is required to grant service connection. See e.g., Caluza v. Brown, 7 Vet. App. 498 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Factual Background. As an initial matter, the Board notes that the service medical records fail to show a diagnosis of polycythemia. The veteran's service separation examination reflects a normal clinical evaluation. Further, post-service medical evidence is negative for complaints of, treatment for, or diagnosis of polycythemia until 1982, many years after his release from service in 1971. In 1991, he suffered a brain stem stroke and recovered with no apparent residuals. He now makes a claim for polycythemia vera secondary to Agent Orange and the residuals of a brain stem stroke secondary to polycythemia vera. Analysis. It is apparent to the Board that resolution of the claims essentially revolves around conflicting medical opinions regarding the veteran's assertion that his polycythemia is related to Agent Orange exposure. As an initial matter, under the regulations, the veteran is presumed to have been exposed to Agent Orange during his service in Vietnam. Of note, when weighing certain medical opinions, the Board observes that inquiry must be made into the nature of the expressed opinion, the clinical data used to formulate the opinion, its rationale, or any other factors that would give it substance. Bloom v. West, 12 Vet. App. 185 (1999). In Alemany v. Brown, 9 Vet. App. 518 (1996), the Veterans Claims Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Veterans Claims Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert, the Veterans Claims Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. Thus, to deny a claim on its merits, the preponderance of the evidence must be against the claim. Claim for Polycythemia Based on Agent Orange Exposure. The veteran claims that he developed polycythemia vera as a result of exposure to Agent Orange. As an initial matter, the Board notes that a statement from his private physician indicated that the veteran was diagnosed with "polycythemia vera," but this finding has been challenged by a recent medical expert opinion from a specialist in hemic disorders dated in July 2003. The specialist concluded that the most appropriate diagnosis would be "secondary polycythemia." Regardless, the veteran has been treated for the blood disorder with intermittent phlebotomies since 1982. After a review of the claims file, the Board notes that the evidence favorable to the veteran includes an October 2000 statement from his private physician, Dr. D.F., to the effect that the veteran presented with erythrocytosis in 1982 and was diagnosed with polycythemia vera. He had been treated over the years with intermittent phlebotomies to control his hemoglobin and hematocrit. In 1991, he suffered a brain stem stroke and fully recovered. Dr. D.F. reflected that Agent Orange had been implicated in several forms of leukemia, including acute myeloid leukemia, acute lymphoblastic leukemia, and chronic myelogenous leukemia. He then reflected that chronic myelogenous leukemia was closely related to polycythemia vera. Therefore, he maintained that "Agent Orange exposure [was] probably the cause of [the veteran's] chronic polycythemia vera." In a May 2001 letter, Dr. D.F. noted that polycythemia vera was part of a group of disorders called myeloproliferative diseases, which also included chronic myelogenous leukemia and essential thrombocythemia. He reported that the diseases all represented an abnormal monoclonal proliferation of hemapoietic cells, or precursor cells in the bone marrow. He indicated that an individual patient's disorder could be classified as any of the diseases depending on whether their red cells, white cells, or platelets were proliferating more at any particular time. He referenced a 1993 report from the National Academy of Science (NAS) that stated that leukemia was one of the diseases showing an association with Agent Orange and cited three different studies (Bertazzi 1989, Burmeister 1982, and Alavanja 1988) in support of the proposition. He concluded that since chronic myelogenous leukemia and polycythemia were so closely related as myeloproliferative disorders, the relationship between Agent Orange "would hold for polycythemia as well as chronic myelogenous leukemia." However, after a careful review of the private physician's opinions, the Board is compelled to assign them less probative weight. Significantly, regardless of the findings in the 1993 NAS report, VA has determined that a presumption of service connection based on exposure to herbicides is not warranted for leukemia. See Notice, 64 Fed. Reg. 59232 (Nov. 2, 1999). In the regulation, VA specifically cited various studies (including Amadori 1995, Waterhouse 1996, Bertazzi follow-up study 1997, Kogevinas 1997, Ramlow 1996, Gambini 1997, Dalager and Kang 1997, and Crane 1997) and concluded that: An association of leukemia with herbicide exposure is biologically plausible, and the histological similarity of chronic lymphocytic leukemia with non-Hodgkin's lymphoma also suggests an association. Nonetheless, the overall evidence is too slight to warrant assigning leukemia to a higher category. Accordingly, the Secretary has found that the credible evidence against an association between leukemia and herbicide exposure outweighs the credible evidence for such an association, and he has determined that a positive association does not exist. See Notice, 64 Fed. Reg. at 59238. Subsequently, there was an exception made to the regulation and chronic lymphocytic leukemia (CLL) was added to the list of presumptive diseases. Specifically, the Agent Orange Act of 1991 (PL 102-4) requires that the NAS and the Secretary of VA enter into an agreement for NAS to review, summarize, and make recommendations about diseases associated with exposure. The NAS is required to submit a report on its activities every two years and, based on the findings contained in the report, the Secretary has to make decisions about presumptive service connection with diseases studied. The NAS issued an Update report on January 23, 2003. Based on the findings of this report, the Secretary determined that a positive association existed between the exposure to herbicides and the development of CLL. This regulation became effective October 16, 2003. However, the Board places less probative value on Dr. D.F.'s contentions because he has advanced a relationship between chronic myelogenous leukemia and Agent Orange exposure (which has not been recognized by VA), rather than chronic lymphocytic leukemia "CLL" and Agent Orange (which has been established by VA as related to Agent Orange). He contends that since polycythemia and chronic myelogenous leukemia are closely related it follows that there is an relationship between polycythemia and Agent Orange. This position is inconsistent with VA's interpretation of the NAS report. Importantly, VA has not recognized either polycythemia vera as related to Agent Orange, nor has it recognized chronic myelogenous leukemia as one of the presumptive diseases based on exposure to Agent Orange. In fact, VA has specifically excluded leukemia (with the exception of CLL) from the list of presumptive disease. The Board is bound by VA regulations. See 38 U.S.C.A. § 7104(c). In addition, there is no evidence to equate CLL (associated with Agent Orange) with other types of leukemia, including chronic myelogenous leukemia (which is not associated with Agent Orange). Therefore, Dr. D.F.'s essential premise - that the veteran's polycythemia vera is closely associated with chronic myelogenous leukemia, which is, in turn, related to Agent Orange exposure - is not supported by the medical research cited in the regulations. For that reason, the Board assigns his opinions based on that premise to be of less probative value. The Board has also reviewed a VA examination report dated in July 2001 and a follow-up addendum dated in August 2001, undertaken by the same examiner to address the issues on appeal. Initially, the examiner concluded that the veteran's polycythemia was "probably not related to his Agent Orange exposure in 1969 and 1970." He concluded, however, that the stroke the veteran had in 1991 was likely related to polycythemia. In an August 2001 addendum, the same examiner noted that he had reviewed Dr. D.F.'s letter and concluded, based on the identical reasoning of Dr. D.F. (asserting a relationship between polycythemia vera, chronic myelogenous leukemia, and Agent Orange exposure), that it was as likely as not that the veteran's polycythemia vera was the result of Agent Orange exposure and that it was "more likely that it was than that it was not." However, for the same reasons outlined above, the Board is inclined to place less probative value on this medical opinion. While there has been a correlation between CLL and Agent Orange, and the Board accepts for purposes of this discussion that polycythemia vera and chronic lymphocytic leukemia are histologically similar, there is no question that leukemia (except for CLL) is specifically not included on the presumptive list of Agent Orange-related diseases. As such, service-connection is not warranted. On the other hand, the evidence unfavorable to the veteran includes a July 2003 medical expert opinion. First, the specialist who prepared this report questions whether the veteran, in fact, has polycythemia vera. He opined that the more appropriate diagnosis would be secondary polycythemia and makes the point that the veteran's symptoms fail to meet the diagnostic criteria for a diagnosis of polycythemia vera. He also noted that the veteran's symptoms were not consistent with other criteria routinely used when considering a diagnosis of polycythemia vera, including elevated LDH and uric acid levels and suppressed erythropoietin levels. He also noted that polycythemia vera was a progressive disease with progressive bone marrow regulation and the median survival rate was 12 years; however, he pointed out that the veteran had not demonstrated any evidence of disease progression between 1984 and 2000. Next, the physician who provided the medical expert opinion in July 2003 noted that even if the veteran had polycythemia vera, there was not a clear association between it and herbicide exposure. He related that dioxin was associated with malignancy of the lymphoid family of cells but not the malignancies of the myeloid-erythroid family of cells. He stressed that although both groups could be called leukemia, they were different leukemias of different cell lineages. Finally, he considered whether the veteran's 1991 stroke was caused by polycythemia. He remarked that the veteran's hemoglobin and platelet count were both in the normal range at the time of the stroke and would not have produced an abnormal blood viscosity. In view of the above, the Board is of the opinion that the nexus between Agent Orange exposure and polycythemia (regardless of whether it is polycythemia vera or secondary polycythemia) has not been satisfied by the evidence. While the private physician's medical opinions seem to support the veteran's claim, a closer reading shows that the medical opinions assumes a relationship between polycythemia vera and chronic myelogenous leukemia, and assumes a relationship between leukemia and Agent Orange, which the VA has specifically rejected. Therefore, the preponderance of the evidence is against the veteran's claim and the claim must fail. Claim for Polycythemia on a Direct Basis. In addition, the claim must be denied on a direct basis because there was no mention of polycythemia in service and no continuity of symptomatology subsequent to military discharge has been shown, nor has any medical examiner attributed the disorder to the veteran's active military service, except as it relates to a claim for Agent Orange exposure (discussed above). Thus, a direct causal link between the veteran's polycythemia and active military service has not been demonstrated and the claim must be denied. Claim for the Residuals of a Stroke Due to Polycythemia. To the extent that the veteran asserts that he is entitled to service connection for the residuals of a stroke due to polycythemia, the Board finds that claim must also fail. As discussed above, polycythemia is not a service-connected disability and there is no basis to reach the issue of secondary service connection under the provisions of 38 C.F.R. § 3.310 (2003) and Allen v. Brown, 7 Vet. App. 439 (1995). Next, service medical records are completely negative for complaints of, treatment for, or diagnosis of a stroke. Therefore, there is no evidence that the veteran had symptoms related to a stroke in service. Further, there is no indication of continuity of symptomatology as evidenced by the absence of treatment for a stroke for many years after service. Post service medical evidence reflects that he first received treatment for a stroke in 1991. The Board places significant probative value on the 20 year gap between discharge from military service and the initial diagnosis. As such, the Board concludes 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 1971 and the 1991 diagnosis. See 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). Next, service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. In this case, there is no evidence establishing a direct medical nexus between military service and the veteran's 1991 stroke. The contentions of the veteran as to a medical nexus, no matter how well-meaning, without supporting medical evidence that would etiologically relate his complaints with an event or incurrence while in service, will not support a claim for service-connection. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). In sum, the Board places greater probative value on the lack of post- service treatment for many years after service separation, and the absence of medical evidence establishing a nexus between military service and the veteran's current complaints related to the residuals of a stroke. Finally, in denying the veteran's claims, 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 February 2001, the RO notified the veteran that new legislation had invalidated the not well-grounded standard and that his claims were being reviewed under the new law. He was also informed as to what he needed to support his claims based on Agent Orange exposure, and given the list of presumptive diseases. He was told that VA would assist him in obtaining any medical records that would support his claims. In December 2001, the RO provided him and his representative with a Statement of the Case which set forth all pertinent regulations, including the Agent Orange regulations and the secondary claim provisions, and he was given an analysis of why his claims were being denied. The RO explained that it had considered the private and VA medical evidence but that polycythemia vera was not included on the list of presumptive diseases. He was also told that the residuals of his brain stem stroke were shown to be the result of a nonservice- connected disability. In addition, the Board sought an opinion from a medical expert, a specialist in hemic disorders, to specifically address the issues on appeal and the veteran's representative was provided with a copy of the July 2003 report and given additional time to submit further evidence or argument, which was associated with the claims file in December 2003. 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 appellant 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. ORDER Service connection for polycythemia vera, claimed as secondary to Agent Orange exposure, is denied. Service connection for residuals of a brain stem stroke, claimed as due to polycythemia vera, 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