Citation Nr: 0417665 Decision Date: 07/01/04 Archive Date: 07/14/04 DOCKET NO. 97-00 288A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension secondary to a service-connected disability. 2. Entitlement to service connection for arteriosclerotic heart disease secondary to a service-connected disability. 3. Entitlement to service connection for diabetes mellitus as secondary to Agent Orange (AO) exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from January 1961 to July 1968. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions of the Department of Veterans Affairs (VA). By a rating action of June 1996, the New York, New York Regional Office (RO) denied the veteran's claims of entitlement to service connection for hypertension and a heart condition as secondary to service- connected post-traumatic stress disorder (PTSD). The veteran perfected a timely appeal of that decision. A rating action in December 1997 confirmed and continued the denial of the veteran's claims. The record indicates that the veteran moved to Florida in 1999; and, in December 2000, jurisdiction over his case was transferred to the RO in St. Petersburg, Florida. By a rating action of April 2002, the RO denied the veteran's claim of entitlement to service connection for diabetes mellitus type II a secondary to exposure to herbicides. The veteran perfected a timely appeal of that decision. On February 10, 2004, the veteran appeared and offered testimony before the undersigned Veterans Law Judge in Washington, D.C. A copy of the hearing transcript has been associated with the claims folder. At the hearing, the veteran submitted additional evidence for which he has provided written waiver of RO review under 38 C.F.R. § 20.1304. The issues of service connection for heart disease and hypertension are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of his claims and has notified him of the information and evidence necessary to substantiate those claims. 2. The veteran has provided credible and competent testimony which establishes that his service aboard a ship in the waters offshore Vietnam during 1965 and 1966 involved duty or visitation on the ground in Vietnam and the record contains a current diagnosis of diabetes mellitus. 3. The competent medical evidence suggests that the veteran's diabetes mellitus caused or aggravated his currently diagnosed arteriosclerotic heart disease. CONCLUSION OF LAW Diabetes mellitus may be presumed to have been incurred during the veteran's active naval service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA). During the pendency of this appeal, on November 9, 2000, the President signed into law the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000). This Act is applicable to all claims filed on or after the date of its enactment, November 9, 2000, or filed before that date and not yet final. This new law eliminates the concept of a well-grounded claim and redefines VA's obligations insofar as properly notifying and assisting veterans in developing their claims. In view of the Board's decision to allow the veteran's claims for service connection for diabetes mellitus and arteriosclerotic heart disease, there is no need to discuss VA's compliance with the VCAA. Factual Background. The records indicate that the veteran served on active duty from January 1961 to July 1968. He was awarded the Vietnam Service Medal, the Navy Unit Commendation Medal, the Republic of Vietnam Campaign Medal, and the National Defense Service Medal. His service medical records are negative for any complaints, findings or diagnoses of diabetes mellitus or heart disease. The service medical records indicate that the veteran was admitted to a hospital in May 1968 after having taken numerous pills in a suicide attempt. The veteran was discharged from the hospital with a diagnosis of depressive reaction. On the occasion of his initial VA examination in August 1968, the veteran was diagnosed with depressive reaction in partial remission, chronic. This examination was negative for any clinical findings or diagnoses of heart disease or diabetes mellitus. By a rating action of November 1968, the RO granted service connection for depressive reaction and assigned a 10 percent disability rating, effective July 6, 1968. VA medical records dated in 1973 and 1982 reflect clinical evaluation and treatment for the veteran's psychiatric disorder and unrelated physical disabilities. VA medical records, dated from February 1994 through January 1997, reflect that the veteran received clinical evaluation and treatment for several disabilities, including PTSD, coronary artery disease, and diabetes mellitus. The records indicate that the veteran was admitted to a VA hospital in February 1994 after he developed central squeezing chest discomfort accompanied by sweating and increased shortness of breath. There was no nausea or vomiting. The pain radiated to the left arm. There was no dizziness or palpitations. The episode lasted about 35 minutes and subsided spontaneously. On examination, his blood pressure readings were reported as 200/120 in the right arm and 188/107 in the left. The chest was clear with no bruits. Regular rate and rhythm, S1/S2, no S3/S4 or murmurs were noted. Upon admission he was treated with IV Nitroglycerin. He subsequently underwent cardiac catheterization which was normal. The impression was moderate LV systolic and diastolic dysfunction and three-vessel coronary disease. The discharge diagnosis was status-post non-Q wave MI, coronary artery disease. The veteran was readmitted to the hospital in July 1994, due to an episode of chest pain that spontaneously resolved. It was noted that the veteran had a history of coronary artery disease and diabetes mellitus since 1982. The veteran was again seen in October 1994 for complaints of chest pain. It was noted that he was admitted for acute myocardial infarction; he was treated with medication. The discharge diagnoses were coronary artery disease and diabetes mellitus. In October 1996, the veteran was referred to a VA hospital for PTSD treatment. It was noted that his past medical history was significant for longstanding coronary artery disease and prior to admission, he had a history of prior myocardial infarction. His coronary artery disease was described as being diffuse and inoperable. It was also noted that he has been an insulin-dependent diabetic for several years and had hypertension as well. A chest x-ray revealed no acute disease. During his period of hospitalization, the veteran was seen by endocrinology and treated for his diabetes. He was also seen by cardiology due to complaints of chest pain. The discharge diagnoses were PTSD, insulin- dependent diabetes mellitus, hypertension, angina pectoris, coronary artery disease, and status post myocardial infarction. Received in October 1998 were veteran's military personnel records as well as internet articles regarding the operations undertaken by the USS Krishna. The report indicates that on June 1, 1965, the Krishna transferred to SERVPAC. After minor renovations in Guam and Subic Bay, Krishna took up station at An Thoi, Phu Quoc Island, RVN, in the Gulf of Thailand. The administrative records indicate that the veteran was authorized to wear the Vietnam Service Medal for service on board the USS Krishna. Also received in October 1998 were VA progress notes, dated from February 1997 to October 1998, which show that the veteran received ongoing clinical evaluation and treatment for several disabilities including diabetes mellitus type II and heart disease. Received in January 2001 were duplicate VA treatment reports, dated from February to March 1994, the findings of which were reported above. The veteran was afforded a VA examination in March 2001, which consisted of an evaluation of the service-connected PTSD. The pertinent diagnoses were PTSD, moderate to severe; and diabetes, peripheral neuropathy, coronary artery disease and hypertension. By a rating action of March 2001, the RO increased the evaluation for the service-connected PTSD from 10 percent to 50 percent, effective June 10, 1994. Received in April 2002 were VA progress notes, dated from March 2001 to April 2002, showing treatment for several disabilities including coronary artery disease status post 3 vessel CABG in September 2000 and diabetes mellitus type 2. These records indicate that the veteran was seen on a regular basis for diabetes management. Of record is a report of contact (VA Form 119), dated April 2, 2002, indicating that the veteran's daughter had been awarded benefits for spina bifida. The veteran was afforded a VA examination in January 2003, at which time it was reported that he was diagnosed with diabetes mellitus in 1982; at that time, he was having symptoms of frequency, excessive thirst, excessive fatigue, and weight loss. The veteran claimed to have been exposed to Agent Orange during his period of active duty in the Navy when he was stationed in and around Vietnam. It was also reported that the veteran had a heart attack in 1989 that was diagnosed as myocardial infarction; after a period of conservative therapy, he had a coronary artery bypass graft surgery in 2001. He still complained of chest pain, shortness of breath, occasional wheezing, and minimal swelling around the right ankle. The veteran admitted to smoking one pack of cigarettes daily for the past 30 to 35 years. On examination, the veteran was described as well nourished, well developed and in no acute distress, but he appeared to be chronically ill. Breath sounds were coarse and rough. There were no gross rales, but there were occasional expiratory wheezes. Respiratory rate was normal. Blood pressure was 150/76. There was a 2-3/6 systolic murmur in the aortic and pulmonic areas with radiation down the left sternal border. PMI was slightly displaced to the left. Pulses were negligible and there was minimal edema around the right ankle area. The pertinent diagnoses were diabetes mellitus, arteriosclerotic coronary heart disease, and post coronary artery bypass graft. The examiner stated that it was his opinion that the cardiovascular problems that the veteran has are not likely caused by his PTSD, nor id he feel that they are worsened by his emotional difficulties; he noted that the more likely explanation is the significant hyperlipidemia, chronic use of tobacco, and excessive weight. However, the examiner explained that it is true that diabetes mellitus will enhance the progression of arteriosclerotic vascular disease and this may be a contributing factor to the veteran's cardiovascular problems in view of the fact that he has been a diabetic for 20 years under somewhat questionable control. At his personal hearing in February 2004, the veteran indicated that he served in Vietnam from 1965 to 1966; he stated that he served aboard the USS Krishna, which was stationed along the shores of Vietnam. The veteran indicated that the ship was anchored about 300 feet from Phu Quoc Island, which is part of Vietnam. He reported going to Thailand for rest and relaxation. He went to the island of Phu Quoc about 3 to 4 times per week. The veteran maintained that a doctor at the Northrop VA medical center indicated that his cardiovascular condition developed as a result of PTSD. Legal analysis. Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2003). To establish service connection for a disability, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden may not be met by lay testimony because laypersons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, established that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2001). Where a veteran served ninety days or more during a period of war and certain chronic diseases, including primary anemia, cardiovascular-renal disease, diabetes mellitus, encephalitis lethargica residuals, and peptic ulcers, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2003). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2003). Moreover, where a service-connected disability causes an increase in, but is not the proximate cause of, a nonservice-connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Additionally, 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, and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6), 3.313 (2003). 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 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, PCT, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Effective July 9, 2001, Type II diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) was added to a list of diseases subject to presumptive service connection under 38 C.F.R. § 3.309(e). See 66 Fed. Reg. 23,166 (May 8, 2001). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and PCT shall have become manifest to a degree of 10 percent or more within one year of separation. 38 C.F.R. § 3.307(a)(6)(ii). In order to rebut this presumption of service incurrence, there must be affirmative evidence to the contrary or evidence to establish that an intercurrent injury or disease which is a recognized cause of any of the specified diseases or disabilities has been suffered between the date of separation from service and the onset of any such diseases or disabilities. 38 U.S.C.A. § 1113(a). Evidence which may be considered in rebuttal of service incurrence of such disease will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d). In claims for VA benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (when a claimant seeks VA benefits, and the evidence is in relative equipoise, the law dictates that he or she shall prevail). As above, the veteran's service medical records are silent regarding any complaint or finding of diabetes mellitus. Likewise, the post-service medical evidence of record is negative for any notation of diabetes for many years after service separation. In fact, the records indicate that diabetes mellitus was not diagnosed until 1982, about 17 years after his service separation. Effective July 9, 2001, VA added diabetes mellitus to the list of diseases presumptively connected with exposure to Agent Orange. See 66 Fed. Reg. 23,166-169 (May 8, 2001) (codified at 38 C.F.R. § 3.309(e)). This amendment implements a decision of the Secretary that there is a positive association between exposure to herbicides used in the Republic of Vietnam during the Vietnam era and the subsequent development of Type-2 diabetes. Under 38 CFR § 3.307(a)(6)(iii), a veteran who served in Vietnam and develops a disease listed in § 3.309(e) is presumed to have been exposed to herbicides. In this case, the record indicates that the veteran served in the United States Navy, and he served in Vietnam from 1965 to 1966. The records also shows that the veteran served aboard the USS Krishna off the coast of Vietnam during the Vietnam era. The veteran, by his testimony at the hearing in February 2004, provided competent and credible testimony which establishes that his duties while assigned to the USS Krishna involved work and visits on the ground in Vietnam. In addition, under controlling VA regulations, the veteran's daughter has been awarded disability benefits for spina bifida in recognition of the veteran's service in Vietnam. Therefore, VA has conceded veteran's exposure to agent orange. Moreover, the record contains competent medical evidence of a current diagnosis of diabetes mellitus, which has been shown to be compensably disabling. See 38 C.F.R. § 4.119, Code 7913. The law and regulations permitting presumptive service connection for diabetes, based on Vietnam Agent Orange exposure, are the end result of a number of medical studies showing an etiological nexus between herbicides and diabetes. With regard to the presumption of service connection, the Board finds that there is insufficient affirmative evidence to the contrary, as necessary to rebut the presumption. Thus, the Board finds that service connection for diabetes mellitus on a presumptive basis is warranted. Accordingly, the Board finds that the veteran's diabetes was incurred in service on a presumptive basis, and service connection is warranted. The benefit-of-the-doubt rule has been considered in making this decision. 38 U.S.C.A. § 5107(b). ORDER Service connection for diabetes mellitus is granted. REMAND Regarding the remaining issues of service connection for heart disease and hypertension on a secondary basis, the Board observes that the medical evidence of record is unclear as to the date of onset and etiology of these disabilities. In this regard, the Board notes that VA treatment records show that the veteran has had a longstanding history of treatment for hypertension. A VA hospital summary, dated in July 1994, indicated that the veteran had had hypertension for many years. On the occasion of his most recent VA examination in January 2003, it was reported "this condition was picked up about 20 years ago, at which time he had a mini stroke." The examiner indicated that diabetes mellitus would enhance the progression of arteriosclerotic vascular disease and might be a contributing factor to the veteran's cardiovascular problems. The United States Court of Appeals for Veterans Claims (Court) has held that when aggravation of a non-service- connected condition is proximately due to or the result of a service-connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Board has determined that service connection is warranted for diabetes mellitus. Judicial interpretation of the matter of secondary service connection as embodied in 38 C.F.R. § 3.310 requires consideration of whether the service-connected disability either causes or aggravates another condition. Id. There is no indication that the RO considered any application of the Allen decision to the question of whether any portion of the veteran's diagnosed heart disease and hypertension are part of, or related to, the diabetes disability. Adjudication on this basis is therefore indicated. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Halstead v. Derwinski, 3 Vet. App. 213 (1992). Also, under VCAA the duty to assist includes providing a medical examination or a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (West 2002). In light of the foregoing, additional development is warranted with respect to the issues of entitlement to service connection for heart disease and hypertension. Accordingly, the case is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. The following actions are to be performed: 1. The RO should ensure that the notification requirements set forth at 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) are fully complied with and satisfied. This includes notifying the veteran (1) of the information and evidence not of record that is necessary to substantiate his claim, (2) of the information and evidence that VA will seek to provide, and (3) of the information and evidence that he is expected to provide. The veteran should also be requested to provide any evidence in his possession that pertains to the claim. 2. The RO should ask the veteran to identify all VA and non-VA healthcare providers that have treated him for heart disease and/or hypertension since 2001. Make arrangements to obtain all identified treatment records that have yet to be associated with the claims file. If the RO is unable to obtain any pertinent evidence identified by the veteran, it should so inform the veteran and request him to submit the outstanding evidence. 3. The RO should schedule the veteran for a VA examination by a physician with the expertise to assess the nature and etiology of his heart disease and hypertension. The claims file must be made available to the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted. The questions to be answered by the appropriate examiner are: (a) Whether it is at least as likely as not (i.e., is there at least a 50 percent probability) that the veteran's heart disease and/or hypertension was either (i) caused by or (ii) aggravated by PTSD; or (b) Whether it is at least as likely as not (i.e., is there at least a 50 percent probability) that the veteran's heart disease and/or hypertension was caused by or aggravated by diabetes mellitus. 4. Thereafter, the RO should review the record to ensure that such is adequate for appellate review. After any indicated corrective action has been completed, the RO should again review the record and readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case, which contains notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Following completion of the requested development, the case should be returned to the Board, if otherwise in order. The purposes of this REMAND are to further develop the record and to accord the veteran due process of law. By this REMAND, the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ 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