Citation Nr: 0415517 Decision Date: 06/17/04 Archive Date: 06/23/04 DOCKET NO. 02-12 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for a disability manifested by tremors. 3. Entitlement to a compensable rating for bursitis of the left shoulder. 4. Entitlement to a compensable rating for intercostal myalgia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The veteran served on active duty from July 1948 to March 1953, and from June 1953 to May 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of a Regional Office of the Department of Veterans Affairs, which denied service connection for a skin disability, and for a disability characterized by tremors. The veteran was also denied a compensable rating for intercostal myalgia, and bursitis of the left shoulder. He responded with a March 2002 Notice of Disagreement, and was provided an August 2002 Statement of the Case. He then filed an August 2002 VA Form 9, perfecting his appeal of these issues. The veteran requested a personal hearing at the RO, but failed to report for his scheduled March 2004 hearing, and has failed to explain his absence to VA. Because the veteran has not offered good cause for his failure to report for a personal hearing, his claim will be adjudicated as if his hearing request was withdrawn. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the duty to notify has been satisfied. 2. Credible medical evidence has not been presented of a nexus between any current skin disability and any in-service disease. 3. Credible medical evidence has not been presented demonstrating that any current neurological disability began during military service or was present within a year thereafter. 4. The veteran's bursitis of the left shoulder results in forward flexion to 162º and abduction to 161º, with pain on motion. 5. The veteran's intercostal myalgia is characterized by pain of the torso, with no loss of muscle or nerve function. CONCLUSIONS OF LAW 1. The criteria for the award of service connection for a skin disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2003). 2. The criteria for the award of service connection for a disability characterized by tremors have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2003). 3. The criteria for the award of a 10 percent rating for the veteran's bursitis of the left shoulder are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5019, 5201 (2003). 4. The criteria for the award of a compensable rating for the veteran's intercostal myalgia are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.20, 4.25, 4.55, 4.56, 4.73, Diagnostic Code 5321 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), was enacted. It essentially eliminates the requirement that a claimant submit evidence of a well-grounded claim. The law also provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. There are also new notification provisions contained in this law which require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. Regulations implementing the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326. In this case, the RO has had an opportunity to consider the claims on appeal in light of the above-noted change in the law, and the requirements of the new law and regulations have been satisfied. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159). By virtue of the August 2002 Statement of the Case, the various Supplemental Statements of the Case, and January 2004 RO letter to the veteran notifying him of the VCAA, he has been advised of the laws and regulations governing the claims on appeal and the evidence that he must supply and the evidence that VA would attempt to obtain. The veteran has reported that he receives medical care at the VA medical centers in Birmingham and Huntsville, AL, and these records were obtained. Private medical records have been obtained from Rheumatology Associates of North Alabama, R.M.P., M.D., Kwajalein Hospital, and Huntsville Hospital. The veteran has not otherwise identified any additional evidence not already associated with the claims folder that is obtainable. Finally, he has been afforded recent VA medical examinations in conjunction with his claims; for these reasons, his appeals are ready to be considered on the merits. The Board is also cognizant of the recent case of Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), in which the Circuit Court held that VA cannot deny a claim without giving the claimant one year to submit the requested evidence or information. Subsequently, the Veterans Benefits Act of 2003 was signed into law in December 2003. This law authorizes VA to make a decision on a claim before the expiration of the period during which the veteran may submit any additional evidence necessary to substantiate his claim. This change was made effective from November 9, 2000. Veterans Benefits Act of 2003, P.L. 108-183, § 701 117 Stat. 2651 (December 16, 2003). In the present case, the appellant was first informed via the August 2002 Statement of the Case of the evidence that was necessary to substantiate his claims. The appellant has had over a year since this letter was issued to submit additional evidence, and he in fact has done so; therefore, there is no indication that further delaying adjudication of the appellant's appeal would serve his interests. Lastly, the Board has considered the U.S. Court of Appeals for Veterans Claims' (Court) holding in Pelegrini v. Principi [17 Vet. App. 412 (2004)], in which the Court held that 38 U.S.C.A. § 5103(a) requires VA to provide notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim before any initial unfavorable agency of original jurisdiction decision. In the present case, the RO initially considered the claims on appeal in January 2002, subsequent to the passage of the VCAA and the modifications to 38 U.S.C. § 5103(a) therein. Subsequent to that initial decision and the passage of the VCAA, the RO provided notice to the veteran of the laws and regulations governing the claims on appeal and the evidence that he must supply and the evidence that VA would attempt to obtain, as has already been discussed above. Finally, the veteran's claim was reconsidered on several occasions, most recently in August 2002, in light of the additional development performed subsequent to December 2001. Therefore, the Board finds no evidence of prejudicial error in the present case. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (holding that the Court must take due account of the 38 U.S.C.A. § 7261(b) rule of prejudicial error when considering VA compliance with the VCAA). I. Service connection - Skin disability The veteran seeks service connection for a skin disability. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2003). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). In October 1954, the veteran was seen for swelling of the upper lip for the last 21/2 months, with itching. Physical examination revealed a scaly whitish area over his upper lip, which was diagnosed as a fungal infection. Medication was prescribed. He was seen again in March 1956 for perianal dermatitis, suspected to be due to a fungus. Ointment was prescribed. No service separation examination is of record. The veteran has been treated by Rheumatology Associates of North Alabama and R.M.P., M.D. On initial consultation in December 1984, he reported no significant rash, with the exception of a rash on his chin. A history of diabetes mellitus and hypertension was also noted. He sought treatment for a spontaneous lesion of the right hand in April 1985. Also in April 1985, he was hospitalized for treatment of bursitis of the right shoulder. During his hospitalization, he developed a rash of the right elbow which was suspected to the result of a medication allergy. In October 1985, he was seen for seborrhea of the scalp, for which he used medicated shampoo. An August 1986 clinical notation confirms tinea of the left palm and fingers. A topical cream was prescribed for this rash. No date of onset of this disability was noted. The veteran has also received VA outpatient treatment for various disabilities. The veteran was referred to the dermatological clinic in February 1999 for evaluation of spots/lesions on his arms, hands, and fact. In May 1999, he was seen at the dermatological clinic for a history of wart treatment on his hands and arms. He was given medicated cream to apply on "rough spots." Onychomycosis and actinic keratosis, treated with cryotherapy, were noted in August 2000. He was given medicated shampoo in September 2000 for treatment of seborrheic dermatitis. In May 2001, a history of basil cell carcinoma, excised from his left hand, was noted. After considering the totality of the evidence, the Board finds that service connection is not warranted for a skin disability. While the veteran was treated in service for a fungal infection of the upper lip, and perianal dermatitis, also suspected to be secondary to fungus, no evidence has been submitted indicating a nexus between these disabilities and the veteran's current skin disabilities. Subsequent to service, the veteran was next seen for a skin disability in 1984, more than 25 years after his last incident of a skin disability in service. Additionally, while the veteran has been treated by private and VA medical examiners for various skin disabilities subsequent to service, none have suggested these disabilities began during the veteran's service period, or are in any way connected to his in-service skin disabilities. In the absence of any evidence connecting the veteran's current skin disabilities to his military service, service connection for a skin disability must be denied. The veteran has himself alleged that his current skin disabilities first began during military service, or are the result of his use of photography chemicals during service. However, as a layperson, the veteran's assertions regarding medical causation, diagnosis, and etiology are not binding on the Board. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reviewing the appellant's claim, the Board notes that the appellant has not been afforded a VA medical examination specifically to address the question of a medical nexus between any current skin disability, and any in-service skin disease. However, the U.S. Court of Appeals for the Federal Circuit has held that in order for a VA examination to be necessary, "the veteran is required to show some causal connection between his disability and his military service. A disability alone is not enough." Wells v. Principi, 326 F.3d 1381, 1383-84 (Fed. Cir. 2003). Thus, a VA examination is not warranted in the present case, based on the evidence of record. In conclusion, the Board finds the preponderance of the evidence is against service connection for a skin disability. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). II. Service connection - Tremors The veteran seeks service connection for a disability characterized by tremors of the hands. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2003). In addition, when certain statutorily-specified disabilities, such as organic diseases of the nervous system, manifest to a compensable degree within a specified time period after service separation, service connection for such a disability will be presumed. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). A March 1952 clinical notation confirms the veteran was involved in a March 1952 aircraft accident involving a forced landing. He had superficial abrasions of the left hand, but denied other injuries. No service separation medical examination is of record. Subsequent to service, the veteran was seen by a private physician in April 1985 for pain and soreness of the right arm. He reported a painful red spot on his right elbow which had appeared several days prior. Septic bursitis of the right olecranon, with severe cellulitis, was diagnosed. In May 1985, he was hospitalized secondary to new onset diabetes mellitus. He was eventually placed on insulin secondary to his diabetes. In June 1988, the veteran stated that he first began to have tremors of the hands following a crash landing of the military aircraft in which he was a crew member. Thereafter, he began to have occasional tremors of the hands. According to his statement, he has continued to experience these tremors on an occasional basis, with a recent increase in frequency. The veteran has also been treated by VA medical personnel for his diabetes. In August 2000, he was noted to have diabetic neuropathy, characterized by tingling and numbness in his extremities. A nerve conduction study confirmed a diffuse sensorimotor polyneuropathy. According to a March 2002 statement from the veteran's former commanding officer, Lt. Col. C.H.L., the veteran did develop tremors of the right hand during military service. Although Col. H. did not personally witness these tremors, he was informed of them at the time by another soldier. Following that initial report, Col. H. did not hear anything more about this problem. The veteran was allowed to remain on flight status. After reviewing the totality of the medical evidence, the Board finds service connection for a disability characterized by tremors must be denied, as the current disability is not shown to have been incurred during military service, was it shown within a year of separation from service. While the veteran's service medical records confirm he was involved in an aircraft accident, and his commanding officer did encounter reports that the veteran had tremors of the hands thereafter, no medical evidence of a nexus between any such in-service injury and a current disability has been presented. Accepting the veteran's contentions that he developed tremors of his hands shortly after the March 1952 accident, the Board nonetheless finds no evidence of a chronic disability. Subsequent to service, the veteran was not diagnosed with any sort of muscular or neurological disability of the extremities until the 1980's, when he was developed diabetic neuropathy secondary to diabetes mellitus, which was itself first diagnosed in 1985, more than 25 years after service separation. While the veteran currently has diffuse sensorimotor polyneuropathy, confirmed by VA nerve conduction study, this disability has been attributed to his diabetes mellitus, and not to any in-service disease or injury. Likewise, no other neurological or muscular disability of the extremities has been attributed to the 1952 aircraft accident, or any other incidence of military service. Finally, no examiner has suggested the veteran's neuropathy began within a year after service separation. Based on the above, the Board can only conclude that the veteran's current polyneuropathy is unrelated to service and began many years thereafter. Thus, service connection for a disability characterized by tremors must be denied. The veteran has himself alleged that his current neurological disabilities first began during military service, and/or result from his use of photography chemicals during service. However, as a layperson, the veteran's assertions regarding medical causation, diagnosis, and etiology are not binding on the Board. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reviewing the appellant's claim, the Board notes that the appellant has not been afforded a VA medical examination specifically to address the question of a medical nexus between any current neurological disability, and any in- service disease or injury. However, the U.S. Court of Appeals for the Federal Circuit has held that in order for a VA examination to be necessary, "the veteran is required to show some causal connection between his disability and his military service. A disability alone is not enough." Wells v. Principi, 326 F.3d 1381, 1383-84 (Fed. Cir. 2003). Thus, a VA examination is not warranted in the present case, based on the evidence of record. In conclusion, the record does not contain competent evidence of a nexus between any in-service disease or injury, and the veteran's current polyneuropathy, and therefore service connection for a disability characterized by tremors must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). III. Compensable rating - Bursitis of the left shoulder The veteran seeks a compensable rating for his service- connected bursitis of the left shoulder. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2003). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service- connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2003). 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. 38 C.F.R. § 4.7 (2003). When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Bursitis is rated under Diagnostic Code 5019, which in turn makes reference to Diagnostic Code 5003, for degenerative arthritis. Diagnostic Code 5003 specifies that degenerative arthritis of a major joint be rated under the criteria for limitation of motion of the affected joint, with a minimum 10 percent rating assigned for such limitation. Limitation of motion of the shoulder is rated under Diagnostic Code 5201, which awards a 30 percent rating for motion of the arm limited to 25º from the side, a 20 percent rating for motion of the arm to midway between the side and shoulder level, and a 20 percent rating for limitation of motion at the shoulder level; these ratings apply to minor, that is, non-dominant joints. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2003). In every case where the requirements for a compensable rating are not met, a zero percent evaluation may be assigned, even if the diagnostic schedule does not provide for such a noncompensable evaluation. 38 C.F.R. § 4.31 (2003). According to the October 2001 VA examination report, he is right-handed, and thus his left shoulder is a minor joint. The Board notes that the position of an arm held out at shoulder level is 90 degrees from the position of the arm at the side. See 38 C.F.R. § 4.71a, Plate I (2003). The veteran underwent VA orthopedic examination in October 2001. He reported a long history of left shoulder pain which extends across his chest both anteriorly and posteriorly. On objective examination, he was without edema, effusion, redness, heat, or instability of the left shoulder joint. However, he did report weakness and tenderness. He also had abnormal movement and guarding of movement. Range of motion testing of the left shoulder revealed forward flexion to 162?, abduction to 161?, external rotation to 84?, and internal rotation to 82?. While pain, weakness, instability, fatigability, and lack of endurance were noted, no additional limitation of motion was attributed to these factors. X-rays of the left shoulder revealed minor degenerative changes. The final diagnosis was of degenerative joint disease of the left shoulder, with loss function due to pain. The veteran has also received VA outpatient treatment for left shoulder pain. However, his outpatient treatment records do not reflect any range of motion findings. Based on the October 2001 examination findings, the veteran does not have sufficient limitation of motion of the left shoulder to warrant a compensable rating. According to Diagnostic Code 5201, the veteran's left arm must be limited to shoulder level movement in order for a compensable rating to be warranted. However, the veteran has both forward flexion and abduction of the left shoulder to 162º and 161º, respectively, well in excess of shoulder level. Therefore, the criteria for the award of a compensable rating are not met, and a noncompensable rating must be assigned under Diagnostic Code 5201. However, the Board also notes that Diagnostic Code 5003, referenced by Diagnostic Code 5019, awards claimants a 10 percent rating for each affected major joint, if the joint does not have limitation of motion to a compensable degree, but does have some limitation of motion. Therefore, because the veteran has already been awarded service connection for bursitis of the left shoulder, and has some limited and painful motion of that joint, a 10 percent rating is warranted for this disability under Diagnostic Code 5003. Also considered by the Board were the provisions of 38 C.F.R. § 4.40 which requires proper consideration to be given the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the Court's holding in DeLuca. However, there is no evidence in the present case that there is any weakness, excess fatigability, or incoordination due to flare-ups of the service-connected left shoulder disability which would warrant increased compensation. While the VA examiner noted in October 2001 that the veteran's left shoulder displayed pain on motion, weakness, and tenderness, the examiner did not express this additional impairment in terms of additional limitation of motion. Therefore, a rating in excess of 10 percent under 38 C.F.R. §§ 4.40, 4.45 or under DeLuca is not warranted. In conclusion, the preponderance of the evidence supports a compensable rating of 10 percent and no higher for the veteran's service-connected bursitis of the left shoulder. As a preponderance of the evidence is against the award of an increased rating in excess of 10 percent, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). III. Compensable rating - Intercostal myalgia The veteran seeks a compensable rating for his intercostal myalgia. This disability is rated by analogy under Diagnostic Code 5321, for Muscle Group XXI, including the muscles of respiration (thoracic muscle group). A slight disability warrants a zero percent evaluation, while a 10 percent evaluation is in order for moderate disability, and a severe or moderately severe disability warrants a 20 percent evaluation. 38 C.F.R. §§ 4.20, 4.73, Diagnostic Code 5321 (2003). For the reasons to be discussed below, a compensable rating is not warranted for this disability. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c) (2003). A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a) (2003). For muscle group injuries in different anatomical regions that do not act upon ankylosed joints, each muscle group injury shall be rated separately and the ratings combined under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.55(f) (2003). A through- and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b) (2003). The veteran underwent a VA medical examination of his muscles in October 2001. A history of pain across the veteran's chest muscles, without precipitating trauma, was noted. The muscles of the torso exhibited no scar formation, tissue loss, adhesions, or bone, joint, or nerve damage. Muscle strength was fair, and no muscle herniation or loss of muscle function was observed. The veteran's muscle disability affected no joints. The prior diagnosis of intercostal myalgia was confirmed. The veteran has also been afforded VA outpatient treatment for various medical disabilities. He has on several occasions reported pain of the chest and torso secondary to his intercostal myalgia. In his written statements to VA, the veteran has also repeatedly reported chronic chest pain. As was noted above, a noncompensable rating is warranted under Diagnostic Code 5321 for slight impairment. Based on the evidence of record, including the October 2001 examination reports, the veteran's sole symptom of his service-connected intercostal myalgia is pain of the torso and chest region. However, he has no nerve damage, loss of muscle strength or function, scar formation, tissue loss, or any other impairment which would suggest a finding of moderate impairment is warranted. Therefore, the Board finds the preponderance of the evidence is against a compensable rating for the veteran's intercostal myalgia. The Board has also considered other potentially analogous rating criteria for the evaluation of this service-connected disability; however, the medical evidence does not support the evaluation of the veteran's intercostal myalgia under any other Diagnostic Code. Because the veteran has no nerve damage or other neurological findings resulting from his intercostal myalgia, evaluation of this disability under the criteria for neurological damage is not warranted. Likewise, evaluation under no other Diagnostic Code would result in a compensable rating for the veteran's intercostal myalgia. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran. The evidence discussed herein does not show that the service connected disability at issue presents such an unusual or exceptional disability picture as to render impractical the application of the regular schedular standards. In particular, the veteran's service-connected disabilities have themselves required no extended periods of hospitalization since the initiation of this appeal, and are not shown by the evidence to present marked interference with employment in and of themselves, as the veteran is retired. Therefore, the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) is not warranted. The veteran has not otherwise submitted evidence tending to show that his service-connected disabilities are unusual, or causes marked interference with work other than as contemplated within the schedular provisions discussed herein. In conclusion, the preponderance of the evidence is against a compensable rating for the veteran's service-connected intercostal myalgia. As a preponderance of the evidence is against the award of a compensable rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to service connection for a skin disability is denied. Entitlement to service connection for a disability characterized by tremors is denied. Entitlement to a compensable rating of 10 percent for the veteran's bursitis of the left shoulder is granted. Entitlement to a compensable rating for the veteran's intercostal myalgia is denied. ______________________________________________ BETTINA S. CALLAWAY 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