Citation Nr: 0426457 Decision Date: 09/23/04 Archive Date: 09/29/04 DOCKET NO. 96-41 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a heart condition secondary to service-connected migraine headaches. 2. Entitlement to service connection for a nervous condition secondary to service-connected migraine headaches. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). (The claims for the propriety of an apportionment paid from April 1, 1998 to December 25, 1999, entitlement to vocational rehabilitation benefits, and entitlement to clothing allowances for the years 1996, 1997 and 1998 will be addressed in separate decisions under separately assigned docket numbers.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T.Mainelli, Counsel INTRODUCTION The veteran served on active duty from August 1974 to January 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from separate rating decision by the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 1994, the RO denied claims for service connection for a heart condition and a nervous condition both claimed as secondary to service- connected migraine headaches. In March 1996, the RO denied the claim of entitlement to TDIU. In September 2001, the veteran appeared and testified in Washington, D.C., before C.W. Symanski, who is the Veterans Law Judge designated by the Chairman of the Board to conduct that hearing, and to render a final determination in this case. 38 U.S.C.A. § 7102(b) (West 2002). The Board remanded the case to the RO in November 2001 for further development. In December 2003, the veteran again appeared and testified in Washington, D.C., before the undersigned. FINDINGS OF FACT 1. The preponderance of the evidence establishes that the veteran's claimed heart condition, to include mitral valve prolapse and symptoms of chest pain and irregular heartbeats, are not causally related to his service connected migraine disorder and/or the taking of medications to treat his service connected migraine disorder 2. There is no competent evidence suggesting a causal relationship exists between the veteran's claimed nervous condition, to include diagnoses of depressive disorder NOS and dysthymia, and his service connected migraine disorder and/or the taking of medications to treat his service connected migraine disorder. 3. The veteran has a 50 percent rating for service connected migraine headaches, and a 10 percent rating for residuals of keloids of the upper chest. 4. The veteran is not precluded from obtaining and retaining substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. A heart condition is not proximately due to or the result service connected migraines or the medications taken for service connected migraines. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2003). 2. A nervous condition is not proximately due to or the result service connected migraines or the medications taken for service connected migraines. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2003). 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16, 4.19 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to assist and provide notice The veteran seeks service connection for a heart condition and a nervous condition, both as secondary to service connected migraine disorder, and entitlement to TDIU. At the outset, the Board notes that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) were enacted into law during the pendency of this appeal. In pertinent part, this law defines VA's notice and duty to assist requirements in the development of certain claims for benefits. See 38 U.S.C.A. § 5102, 5103, 5103A and 5107 (West 2002). The CAVC has emphasized that the provisions of the VCAA impose new notice requirements on the part of VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA has a duty to notify a claimant (and his/her representative) of any information, whether medical or lay evidence or otherwise, not previously provided to VA that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002). As part of that notice, VA shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, VA will attempt to obtain on behalf of the claimant. Id. The CAVC's decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II) held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). The Pelegrini II Court also held that the language of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) require that a VCAA notice be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial AOJ decision was rendered many years prior to the passage of the VCAA on November 9, 2000. On April 17, 2001, the RO provided the veteran a VCAA letter notifying him of the relative duties on the part of VA and himself in developing the claims. This letter included sections entitled "What You Should Know About Your Claim," "VA's Duty to Notify You About Your Claim," "VA's Duty to Assist You With Obtaining Evidence For Your Claim," "What Must The Evidence Show To Establish Entitlement," "What Information or Evidence Do We Still Need from You," "When and Where Do You Send The Information Or Evidence," "What Evidence Do We Have To Support Your Claim," "How Long Will It Take To Decide Your Claim," "Your Right to Privacy," and "When We Need the Information." The veteran was specifically advised that evidence necessary to substantiate his claims included: ? "medical evidence of permanent and total disability resulting from your service- connected disabilities. In other words, evidence showing that your service connected conditions preclude normal employability; and ? medical evidence that relates your heart condition and nervous condition to your service-connected migraine headaches or medication taken for your migraine headaches." This letter also included a notice to "[p]lease advise our office if there is any additional evidence that is relevant to your claim." Additionally, the RO sent the veteran letters dated January 28, 2002 and April 29, 2002 notifying him of additional evidence which might be capable of substantiating his claims. The initial Statement of the Case (SOC) and subsequent Supplemental Statements of the Case (SSOC) have periodically advised the veteran of the evidence obtained and reviewed, the applicable legal standards of review, and the Reasons and Bases for the unfavorable determinations. A Board remand order in November 2001 further delineated for the veteran the dispositive issues in the claims. The Board also notes that there is extensive documentation of record advising the veteran that his original claims folder was lost, and that his claims folder had to be rebuilt. Based upon the above, the Board finds that VA has satisfied the duty to notify content requirements of both 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b)(1). Technically, the Board concedes that the VCAA notice in this case was not provided to the veteran prior to the initial AOJ adjudications denying the claims. This is so because of impossibility; the section 5103 provisions did not become law until after the initial AOJ decision. As such, VA took a reasonable approach of providing a section 5103 notice in a commonsense manner consistent with the procedural posture of the case; a rule of construction adopted by the United States Supreme Court in similar cases where procedural rules are applied retroactively. See Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994); Lindh v. Murphy, 512 U.S. 320, 328- 29 (1997). In Pelegrini II, the CAVC noted that the VCAA timing requirements serve the purpose of providing an orderly sequence of claims development and adjudication for which the claimant could expect compliance. However, the Pelegrini II Court recognized that, in situations such as this case where the initial AOJ determination was rendered prior to the enactment of the VCAA, that there was no specific requirement that the claim be returned to the AOJ as though the original decision was nullified. Rather, the issue turned on whether any deviation from the orderly process of the appeal would result in any prejudicial effect to the claimant. The primary prejudicial effect identified by the CAVC appears to be its concern that, had a claimant been provided a VCAA notice prior to an initial AOJ adverse determination, the claimant might have been able to present or point to evidence that could have resulted in a grant of the claim. See Huston v. Principi, 17 Vet. App. 195, 203 (2003). In the claim at hand, the veteran has clearly understood the evidentiary requirements to substantiate his claims, and has undertaken an active effort to supplement the record with medical articles and publications. He has also testified on several occasions, and all relevant medical evidence has been secured. In April 2001, the veteran informed the RO that there was no further evidence available to his claims at that time. The Board has obtained medical examination and opinion in his claims as well as VA clinic records and documents from the Vocational and Rehabilitation Service. On numerous times during the appeal, the veteran has expressed his dissatisfaction with the time it has taken to complete his appeal. He has also testified to his belief that the RO decisions were the product of bias related to his termination from VA employment. In December 2003, he submitted additional evidence in support of his claims with a waiver of RO review of this evidence. On this record, the Board finds that no beneficial effect would flow to the veteran in starting his claims anew, and that any defect with respect to the VCAA timing requirement in this case would be harmless error. See 38 C.F.R. § 20.1102 (2003) (an error or defect by the Board which does not affect the merits of the issue or the substantive rights of a claimant will be considered harmless error and not a basis for vacating or reversing a decision). The provisions of 38 U.S.C.A. § 5103A require VA to provide assistance to the claimant in the development of a claim. In this case, the RO has obtained the veteran's VA clinic records and his Vocational and Rehabilitation folder. The RO has undertaken extensive efforts to rebuild the claims folder, and the veteran has forwarded all copies of materials from his lost claims folder he had in his possession. The Board has remanded this case in order to obtain all additional records that may be available to rebuild the folder. The veteran is not claiming that his medical conditions are related to event(s) in service, and the absence of service medical records are harmless in this case. The claims folder does contain medical records relative to the claimed onset of the heart and nervous conditions as well as records covering the period of claimed entitlement to TDIU. There are no outstanding requests to obtain relevant information and/or evidence. In addition, VA obtained medical examinations and opinion as necessary to substantiate the claims. The argument has been raised that these examination the January 2003 VA mental disorders and neurology examinations are inadequate for rating purposes. The Board has reviewed these examination reports, and finds them adequate for rating purposes. In particular, the January 2003 VA neurology examination report does provide an equivocal opinion as to employability but, as addressed below, that opinion necessarily hinges on the veracity of the veteran's reported frequency and duration of symptoms which is subject to a merits determination. The mental disorders examination report was based upon review of the claims folder, and the Board finds no deficiencies in the content of the report. The veteran's disagreement with the ultimate conclusions reached does not provide a basis for inadequacy. Further, the VA heart examination report findings are consistent with findings of a private examination report submitted by the veteran in 2003. Absent any competent evidence associating the claimed nervous disorder to a service connected disability or medications taken for treatment thereof, VA has no duty to obtain opinion on the nervous disorder claim other than the examination reports already obtained. See generally Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). Based upon the above, the Board also finds that VA has satisfied the duty to assist requirements of the VCAA. The CAVC has concluded that the VCAA does not require a remand where a claimant was fully notified and aware of the type(s) of evidence required to substantiate the claim and that no additional assistance would aid in further developing a claim. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). When, as here, it is evident that there is no reasonable possibility that any further assistance would aid the veteran in substantiating his claims, the VCAA does not require further assistance. Wensch v. Principi, 15 Vet. App. 362 (2001); Dela Cruz; see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Accordingly, the Board finds that VA's duty to assist has also been satisfied in this case. II. Factual Background The veteran served on active duty from August 1974 to January 1978. His claims folder has been rebuilt, and his service medical records are unavailable. He is service connected for keloids of the upper anterior chest rated as 10 percent disabling since June 1980, and migraine headaches rated as 50 percent disabling since June 1991. In pertinent part, VA clinical records beginning in 1991 show the veteran's treatment for migraine headaches associated with nausea, photophobia, phonophobia and right-sided head pain followed by successive headaches for the next 2 to 3 days. On December 17, 1992, he was admitted to the Medical Intensive Care Unit of the Jackson, Mississippi VA Medical Center (VAMC) for evaluation of chest discomfort and frequent premature ventricular complexes (PVC's). His initial electrocardiogram (EKG or ECG) results, however, were normal. His admission history included report of a 10 year history of migraine headaches treated with Pamelor 50 mg. every night (q.h.s). He had a previous admission in September due to abdominal discomfort, described as a "gastrointestinal virus" with nausea and vomiting, with a normal computerized tomography (CT) scan of the abdomen at that time. For the last month, he had grown weaker with more frequent headaches causing him to miss three days of work. His heart examination revealed regular rate and rhythm with occasional ectopy, point of maximal impulse (PMI) at the mid clavicular line, and no gallops. A chest x-ray showed full SVC at the superior mediastinum with clear lungs. An echocardiogram (ECHO) showed decreased left ventricular function with an ejection fraction of 20%. No pericardial effusions were noted. A VO scan was interpreted as normal. He was diagnosed with myocarditis, but the veteran declined a myocardial biopsy. His chest pain resolved, and he was discharged on December 22, 1992. His discharge summary included a cross out of the diagnosis of myocarditis supplanted in writing with a diagnosis of dilated cardiomyopathy of unknown etiology. The veteran appeared before the RO in June 1993 and testified to never being relieved of some type of headache. He had dull headaches every day for which he obtained some relief with aspirin, Tylenol and Pamelor at night. His medication had been increased so that he felt light-headed most of the time and fatigued to the point of feeling like a zombie. He had severe headaches, which would usually appear on the weekends, averaging two to three times per month and lasting 1-4 hours in duration. They were associated with a change of taste, sensitivity to light and noise, visual changes, temporary body paralyzation and pain so severe his hair hurt. These headaches required him to take Vistaril and visit the hospital, to include one instance of being put on an intravenous (IV) drip. He also received regular Demerol shots. He would usually require a day to come down from the medication and, overall, would have to miss from 11/2 to 3 days of work for each episode. He was thankful he had the flexibility of a federal job. In October 1993, the veteran was admitted to the Jackson VAMC due to acute onset of pleuritic chest pain with no radiation. He described increased fatigue and weakness for several weeks with one episode of palpitations. His history of myocarditis of unknown etiology was noted as well as the laboratory results from December to June 1993. He was admitted to the Blue Medicine Service with an EKG showing alternating bigeminy and sinus rhythm. He was given Lasix 20 mg. secondary to shortness of breath and questionable increased vascularity of pulmonary markings with relief of chest pain. He was asymptomatic for syncopal episodes and absent chest pain during the hospitalization. He was placed on telemetry and noted to have frequent PVC's but no symptoms. Cardiology felt his shortness of breath was unrelated to a cardiac etiology. An exercise graded heart scan was deemed "normal" with a left ventricular ejection fraction after exercise of 83% and good left ventricular contraction. An exercise stress test was negative with PVC's disappearing without exercise. An ECHO revealed borderline left ventricular end-diastolic pressure with good systolic function, an ejection fraction of 70%, and mild prolapse of the mitral valve. A repeat EKG on the date of discharge revealed a sinus-alternating-with-bigeminy rhythm, but no treatment was warranted as the veteran was asymptomatic. Pulmonary consultation indicated that there was no active pulmonary dysfunction leading to any pain. The veteran was discharged with diagnoses of pleuritic chest pain, history of myocarditis, and migraine headache. His medications included one aspirin per day and Tylenol as needed. In March 1994, the veteran underwent VA general medical examination with benefit of review of his claims folder. He reported using a cream to treat itching from his keloids on his chest. He described 1 to 2 headaches per week lasting two to three days in duration. He also reported heart problems described as fluid around his heart, irregular heart beats, continuous soreness of his chest, and constant tiredness. He was unable to sleep at night, and became short of breath "from lack of oxygen." He had a stabbing chest pain, left of the upper sternum area, if he turned the wrong way or lifted something heavy. He reported once being placed on medication for his heart condition. However, he discontinued its use because his boss told him his performance was not good. On diagnostic testing, an EKG was deemed normal. A chest x-ray showed normal heart size with a questionable right apical pulmonary nodule. His thyroid function tests were within normal limits. Electrolytes, renal function and arterial blood gasses were normal. A 24- hour Holter monitor revealed the basic rhythm to be sinus with frequent PVC's, isolated and bigeminal rhythm. An ECHO revealed a normal study except for mild prolapse of the mitral valve and anterior leaflet without any mitral regurgitation. Following examination, the examiner offered the following commentary: DIAGNOSES: (1) Keloids of chest. (2) Migraine headaches. (3) Past history of myocarditis or dilated cardiomyopathy, resolved. (4) Frequent PVC's. (5) Atypical chest pain, etiology unknown, possibly secondary to his mild mitral valve prolapse without mitral regurgitation. (7) History of diarrhea, possibly irritable bowel. (8) See Psychiatric exam. REMARKS: I will leave an opinion as to the Propranolol and nervous condition to the Psychiatric evaluator. Concerning his heart condition, I reviewed the C-file and his diagnosis was myocarditis or dilated cardiomyopathy, etiology unknown. It was not clear from the C-file as to whether he was still on Inderal at that time or not. Patients that have continued use of beta blockers such as Propranolol can have cardiac failure. The problem at present time is that he continues to complain of a heart problem and is definitely not taking Propranolol at the present time and he has no evidence of congestive heart failure, myocarditis or dilated cardiomyopathy. His echocardiogram is essentially normal except for mild prolapse of the anterior leaflet of the mitral valve. In other words, he does not have a dilated left ventricle and his ejection fraction is normal so he is not in any kind of cardiac failure or does he have cardiomyopathy at the present time. But, he continues to complain of "heart problems" described above as atypical pain and irregular heartbeats. Therefore, I would not be able to say that his present mild mitral valve prolapse and frequent PVC's is related to his Propranolol because he is not on Propranolol or there is any evidence to suggest that his prior taking of Propranolol is the cause of any kind of claimed cardiac condition at this time. If any further information is needed beyond this, I would recommend a Cardiology evaluation. The veteran also underwent VA mental disorders examination in March 1994. At that time, he stated "[t]hey diagnosed me as having myocarditis on December 17, 1992, and it's been downhill ever since. I feel depressed all the time. No energy. Feel like I'm at the breaking point. Wake up all night. I just work and sleep." He also reported migraine headaches occurring at least once a week and lasting two to three days in duration. He stated "I'm used to the headaches, but with the headaches and the heart problem sometimes I feel like giving up." The sedation from medication interfered with his work. He stated that "[n]ow, I hate my job. I just don't have any energy." He admitted to suicidal thoughts, but denied intent. His mental status examination was significant for depressed mood, and mild irritability. He was given a diagnosis of dysthymia with an explanation as follows: This 37 year old male from Jackson, MD, gives an approximately 15 month history of depression which appears to be caused by limitations imposed upon him by recently diagnosed myocarditis. Symptoms have existed more than six months; therefore, the patient can no longer be considered from adjustment disorder. C-file was examined and did not contain information which appeared to contradict the above conclusions. An April 1996 written statement from the veteran described two to six migraines per month lasting 18 to 24 hours in duration followed by an inability to function due to fatigue for additional 24 to 48 hours. He claimed to have used over 300 hours of sick leave plus annual leave in 1992 due to his migraines. His headaches were occurring so frequently that he stayed nauseated, and caused him to verbally abuse his family and everyone else around him. He believed his headache disorder contributed to his losing his job with VA. The veteran's April 1996 testimony before the RO elaborated on the theory that the Propranolol prescribed for his service connected migraine headaches caused him to develop symptoms of chest pain and irregular heartbeat after only six months of use. He believed his hospitalization for myocarditis was related to the Propranolol, and recalled a female doctor advising him to research whether a relationship existed in the Physicians Desk Reference (PDR). According to the veteran, the PDR lists his symptoms as known side effects of Propranolol. He stopped taking Propranolol and his symptoms subsided except for the irregular heartbeats. He avoided physical exertion and remained on a strict diet. He also indicated that he developed symptoms of depression and lack of energy after taking all of his medications, and also alleged having a nervous disability as secondary to the myocarditis and heart problems. The veteran also described having two types of headaches during his testimony. Daily, he had little dull right-sided headaches as well as migraine headaches on a weekly basis. His migraine headaches were manifested by change of taste, feeling sick to his stomach, and inability to tolerate light or noise. His symptoms became so severe that he became paralyzed and contemplated suicide. He obtained Demoral shots at VA which would make him fall asleep. His headaches were uncontrollable resulting in 165 to 175 hours per year of missed work leaving him with no annual leave for vacation. He was dismissed from his job at VA, and had been unable to obtain employment as his headaches kept him from working 2 to 3 days per week. Generally, he had experience as a military policeman, and went to school to become a counselor. His vocational experience involved dealing with people such as working with children in a juvenile division, but his headaches had now prevented him with dealing with the public. VA clinic records include a June 1999 neurologic outpatient note reporting the veteran's complaint of 3 headaches per month, including two headaches after awaking from his shot. His headaches were associated with an aura of odd taste. He had been on beta blockers, Amitriptyline, Protriptyline, and Divalproex without significant benefit. He currently obtained a Toradol and Compazine shot when he had headaches which, he reported, worked well. He was unable to take Imitrex because of myocarditis. An August 1999 psychiatric consultation noted complaint of anxiety, depression, anhedonia, sleep disturbance, decreased energy/fatigue, decreased concentration, psychomotor disturbances, feelings of worthlessness and suicidal ideations. The examiner noted the veteran's history as follows: "these sx occurring since 1992 when he found out that he has 'heart problems.' He reports dx with MVP during that time. He had worked with the VA for 17 1/2 years. In 1995, he stop[ped] working. Since that time, he states having 'nightmares' that contains issues of death (cliffs, bridges, and skeletons). These dreams occur about once a week." He was given an assessment of Depressive disorder (D/O) not otherwise specified (NOS) and assigned Global Assessment of Functioning (GAF) scores of 45 for both the current and past years. The veteran underwent VA neurologic examination in August 1999. His claims folder was present, but only contained non- medical correspondence that was insufficient to determine whether or not his migraine headaches were truly refractory to the common forms of therapy. The veteran described migraines occurring three times a month and lasting as long as a day or two in duration. They occurred at any time and were usually manifested by severe right sided throbbing pain, tenderness or hypersensivity of the scalp, and visual distortions. At times, other systemic symptoms were manifested. He required bed rest to treat his headaches, but he still had a headache the next day. On examination, the veteran's motor, neurologic and sensory examinations were unremarkable. The examiner gave an impression of normal neurologic examination in an individual with vascular headaches. Absent review of the veteran's medical records, the examiner was unable to render an opinion as to unemployability. VA clinic records next reveal a September 1, 2000 primary care visitation recording the veteran's history of a headache disorder associated with nausea, vomiting, photophobia, phonophobia and a certain taste in his mouth before their onset. He occasionally had some episodic numbness of the left arm and leg. His occupation was reported as "DISABLED DUE TO MIGRAINES" and his past treatment history included Cafergot, Imitrex which he could not take due to heart problems, Toradol injections, Propranolol, Compazine and Protriptyline. He was given an impression of migraines with a 60 mg. injection of Toradol given. He refused a trial prescription of neurotine. His subsequent VA clinic records record his frequency of 2 to three migraines per month with Toradol injections every two weeks. In March 2001, the veteran filed an application for VA Vocational and Rehabilitation benefits to become a Chaplain. At that time, he expressed a desire to obtain a Masters degree in Divinity. He held a bachelors degree in Criminal Justice from Jackson State University with service as a military policeman. He had worked as a VA benefits counselor from June 1981 to November 1994 before leaving due to an increased severity of his headaches and heart condition. He indicated that his VA vocation had become too stressful. During his period of unemployability, he had been volunteering in spiritual religious counseling at the Mississippi Department of Corrections as well as teaching Bible school. He reported a worsening of his headaches "2 to 3 headaches monthly that last 3 to 7 days." This required monthly Toradol injections at VA. He described no limitations related to his service connected keloid disorder. He described service connected disabilities as affecting his job performance, job satisfaction, and job opportunities. He was "not able to work with ... migraine headaches" which caused him to miss work and interfere with manager. His heart condition limited him from lifting anything over 30 pounds, and his depression resulted in "good days bad days." He believed that obtaining a Master of Divinity degree would improve his ability to work consistently. He provided an overall assessment of his disability and limitations as follows: I hate having headaches. I have found working in the religious fields is less stressful. I believe working as a Chaplain I can be productive and help other[s]." Also in March 2001, the veteran submitted a sick leave report for his VA employment for the years 1993 and 1994. The results are as follows: Pay Period 1993 1994 1 72.00 22.25 2 60.00 2.50 3 24.00 2.25 4 28.75 8.00 5 8.00 6.00 6 16.00 8.00 7 16.00 2.50 8 14.25 -0- 9 8.00 8.00 10 8.00 -0- 11 8.00 5.00 12 4.50 8.00 13 4.50 8.00 14 11.25 -0- 15 17.25 -0- 16 -0- 8.00 17 -0- -0- 18 24.00 -0- 19 -0- -0- 20 26.25 -0- 21 64.00 -0- 22 19.5 -0- 23 20.00 -0- (Separated) 24 24.00 25 -0- 26 2.5 484.25 88.5 An April 2001 letter from Robert N. Fortson, District Elder for the Southeastern District Council of the Pentecostal Churches of the Apostolic Faith Association Inc., included the following assessment of the veteran's suitability for chaplain training: I have known [the veteran] for eleven years. I am currently the Chairman of the Southeastern District Council of the Pentecostal Churches of the Apostolic Faith Association, Inc. [The veteran] is the treasurer of the Council. He has faithfully served in this capacity for over five years. He has conducted himself in a professional, responsible, and spiritual manner throughout this time. He has maintained accurate and reliable records. Moreover as a member of the executive board, he has demonstrated his spiritual insight in numerous decisions made by this organization. [The veteran] is an asset to the Southeastern District Council. I highly recommend [the veteran]. It is my belief that he will make an excellent chaplain after completion of the necessary training. An April 2001 letter from Bishop Phillip Coleman, Dr., of the Greater Bethlehem Temple Apostolic Faith Church also highly recommended the veteran for vocational training as a chaplain noting, among other things, that the veteran had been faithfully volunteering in the prison ministry at the Mississippi Youth Correctional Complex and the State of Mississippi Department of Corrections for the last year. On April 23, 2001, a VA Vocational and Rehabilitation Counselor conducted a feasibility evaluation based upon interview of the veteran and all available documentation of file. Pertinent portions of the report are as follows: I. Physical Health Status [The veteran] has a combined service connected disability rating of 60%. He has a 50% service connected disability rating for condition of the nervous system (migraine headaches) and 10% service connected rating for superficial scars. He has 0% ratings for non-service connected disabilities (urinary condition, impaired hearing, hemorrhoids and dysthymia). He informed that he also has heart problems. He stated that his headache medications caused him to have heart failure. His heart condition does not allow him to lift over 30lbs. He has migraine headaches two- three times a month. His headaches usually last from three to seven days long. His body becomes paralyzed as he is having a headache. He can not function during his headache moments. He takes tylenol 3 for the pain until he visits his physician. He visits hi[s] medical doctor when he has a headache to receive a torodal injection for his pain. The torodal shots has been successful. He has been taking the torodal shots for over a year. Stress and stressful situations causes him to have headaches. He feels that he needs to be in a no stress/independent environment in order to succeed in gainful employment. He feels that he can not function in a controlled setting with deadlines and specific demands. His condition is stable when he works alone. He visits his medical doctor at the VAMC in Jackson, MD once every month, or on an as needed basis. He informed that his medical condition has not changed since he was discharged from his previous employment position as a Benefits Counselor. His medical condition has prevented him from seeking and entering gainful employment. II. Mental Health Status He feels that he is not mentally stable at this time. He becomes depressed as he thinks about his inability to function as he once did. He can not tolerate loud music and does not have any friends due to the different changes he experienced suffering with his disability. He does not drink, smoke, or use any drugs. He may benefit from counseling to address his depression. ... VI. Educational/Vocational Training Status He graduated from Jackson Stated [sic] University in 1982 with a Bachelor's degree in criminal justice. He enlisted in the US Army from August 1974 to February 1978. He was given an honorable discharge. He was military policeman in the US Army. VII. Employment/Career Development Status He is currently unemployed. He has been unemployed since November of 1994. His last employer was the Department of Veterans Affairs, Regional Office, located in Jackson, MS. He earned $31,000 a year. He was a Benefits Counselor from 6/1981 to 11/1994. This was a permanent full time position. He was fired from this job because of his excessive absences from work. He did not provide medical documentation to support his absences. The veteran stated that he felt that the VA should have obtained his records from the VA hospital, since we are in the same system. His disability was aggravated at this job because of high stress, co-worker manager relationship and demands of the position. He missed many days from work due to his service connected disability. He has not worked since. He stated that he has not sought employment because of his medical condition. Entitlement Determination Impairment & Employability It is felt that the effects of the veteran's service connected disability, 50% rating for condition of the nervous system (migraine headaches), has caused him to have functional limitations in regards to maintaining and seeking gainful employment. His heart condition does not allow him to lift over 30lbs. He has migraine headaches two-three times a month. His headaches usually lasts from three to seven days long. His body becomes paralyzed as he is having a headache. He can not function during his headache moments. He was fired from his last employment position because he missed too many work days while suffering with his disability. He feels that he is unable to function in a stressful environment. Stress causes his migraine headaches. His disability has caused him to lose gainful employment and has prevented him from obtaining gainful employment. [The veteran] has an impairment to employability. Material Contributions of Service Connected Disability to the Impairment It is determined the [veteran] has a service connected disability that materially contributes to his impairment of employability. Considering his medical condition, and inability to maintain and obtain suitable employment, it is determined that he has an employment handicap. It is felt that he has a serious employment handicap because of his constant chronic pain, frequency and duration of headaches, unemployment status, inability to maintain gainful employment and ability to obtain gainful employment. He has not overcome the effects of the impairment of employability. Vocational Exploration Veteran has 0 months of creditable Chapter 31 entitlement. He previously used other VA educational benefits for his undergraduate training at Jackson State University. Veteran is interested in attending the Reformed Theological Seminary, located in Jackson, MS, to obtain a Masters Degree in Theology. He presented a copy of the school curriculum and letters of recommendation. He wants to obtain his Masters Degree to become a Chaplain with the U.S. Government at the VA Hospital. He obtained and researched this information from the VA Hospital. I informed the veteran that this occupation is a stressful occupation also. He denied and replied that he had been volunteering as a spiritual and religious counselor on the 1st and 3rd Saturday of the month, and counseling at Mississippi Department of Corrections. He also teach[es] Sunday school every Sunday. He finds peace and comfort with volunteering in as a spiritual counselor. His volunteer experiences prompted him to become a full time chaplain. He thought he would be qualified to get a chaplain's position with his BA degree. He was informed that he needed to have a Masters Degree. We talked about his disability and how it would affect him. He stated that he did not think he would have any problems because of the environment. I reminded the veteran about his responses during the beginning of our interview. He relates that his disability is stimulated due to stressful situations. He is highly likely to experience stressful situations when counseling and dealing with people's lives. He will have to make life threatening decisions, which may require critical thinking, which in return may turn into a stressful situation. He will not only experience stressful situations on the job, but at home also. Whenever he experiences stress, he has headaches which lasts from three to seven days. During this time he is unable to function. Feasibility to participate in any program of services are questionable. After the veteran was made aware of those unforeseen situations, he tried to change his story about the frequency and treatment of his headaches. He stated that the torodal shots has been helpful and helps him recover from the headaches in one day period. Then the question was asked, Why can't you obtain employment as a counselor with your BA degree in criminal justice. He has over 10 years experience as a benefits counselor. He has transferable skills. This case manager feels that he does not need to be retrained as a chaplain in order to obtain suitable gainful employment. He can obtain gainful employment with his current skills and experience. He has not sought employment because he does not want to work in a stressful environment. As a result, he wants to become a chaplain, which he feels is least stressful. His feasibility is questionable. When considering his high interest in returning to gainful employment, this case manager feels that the veteran will benefit from employment services that will lead to employment that is consistent with his education, disability, ability and aptitude. Feasibility of obtaining employment as a chaplain is highly questionable. This was explained to the veteran. He was informed of his entitlement into the VR&E program. In May 2001, the veteran clarified that he obtained Toradol injections twice per month without any known side effects, but that he was unable to drive. He saw himself back into the workforce as a chaplain and was willing to work for a minimum salary of $25,000. He indicated that the job fell into the medium sedentary classification. A July 2001 VA occupational therapy final report concluded that "PT CAN MEET THE PHYSICAL REQUIREMENTS TO BE A CHAPLAIN, HX OF MIGRAINES WOULD NOT DISQUALIFY HIM FOR THIS JOB." In September 2001, a VA Vocational Rehabilitation Counselor re-reviewed the veteran's application to the VR&E program and dictated the following report: Veterans case was re-reviewed in terms of determining feasibility of becoming a chaplain. I reviewed the case documentation during our initial interview, his responses on the RNI (Rehabilitation Needs Inventory), employment duties of a chaplain, limited medical information in the CER and functional capacity evaluation. After reviewing the above information in the CER, it is determined that the veteran would not be feasible of obtaining an employment position as a chaplain. He indicated during our initial meeting that stress causes his migraine headaches. His migraine headaches may last from three to seven days long (refer to veteran's statement in the RNI pg. 6), which will contraindicate with employment duties of a chaplain. (Reader should refer to the attached employment specifications/duties of a chaplain pg.5). Veteran did not present any medical information from his treating physician/nurse practitioner identifying his recent medical treatment history, treatment schedule, and ability to maintain employment as a chaplain in regards to the frequency and treatment of his migraine headaches. As a result, the veteran is not feasible of obtaining employment for his vocational interest in becoming a chaplain. After reviewing my contacts with the veteran and other correspondence (letters), he indicates that he has a strong desire to return to gainful employment. When considering his strong interest in returning to gainful employment, VR&E should assist the veteran with obtaining employment that his consistent with his disabilities, abilities, aptitudes, and education. He would benefit from a trial work period to determine his stamina when considering the frequencies and residual affects of his disability. The trial work period will identify his ability to maintain gainful employment. Due to his high interest in returning to gainful employment, he should be given the benefit of the doubt to participate in employment services that would lead to employment that is consistent with his disabilities, aptitudes, abilities and education. However, veteran seems to have little insight in regards to what tends to cause an exacerbation of his service connected migraine headache condition. It is felt that employment requiring a great deal of interpersonal contact and skills is contraindicating. He experienced this when he was employed as a VBC (Veteran Benefit Counselor). He would also experience this with the employment duties of a chaplain, which requires excessive personal interaction. Due to his current education, desire to return to gainful employment, it is felt that employment in a conventional area working with data/office practices may be more appropriate and can offer the development of an IEAP. This may require some short term training courses as part of the IEAP. It is recommended that this be explored by the Jackson, MS Regional Office. Also in September 2001, the veteran appeared and testified before the undersigned. He reiterated his history of being prescribed Proponolol/Inderal for his migraine headaches for the years 1990 to 1992 as well as a beta blocker. He then started experiencing weakness and additional headaches, to include rebound headaches, with his work productivity slowing at that time. He was hospitalized in 1992 for heart problems which he described as an enlarged heart due to fluid build- up. He indicated a current diagnosis of mitral valve prolapse which he described as a leaking valve and irregular heartbeat. He associated these problems with his use of Proponolol. He indicated that a female VA doctor told him to look up the complications of taking a beta blocker, and that research disclosed such an association. He indicated that another VA doctor indicated that heart problems could be caused by the medications, but that he could not be sure in the veteran's case. He continued to have symptoms of irregular heartbeat which prevented him from engaging in exertional activity. He received brief treatment for anxiety and depression following the onset of his heart condition, but had not received formal treatment since the mid 1990's. Overall, he thought that his migraine disorder caused him to withdraw from society and frustrate his ability to live a normal life. The veteran also testified to graduating from Jackson State University in 1982, and that he began work at VA through a work-study program. He started in the finance department, and served as a Veterans Benefits Counselor from 1986 through 1994. He recalled presenting doctors' notes for missing work due to migraines in 1994, but his supervisor became upset when he didn't call every day. He indicated that phoning in as sick was impossible due to his rebound headaches. He averaged two migraines per month lasting 8 to 24 hours in duration with rebound headaches lasting an average of 8 to 16 hours in duration. He would normally require 15 hours to recoup from these episodes. He also felt woozy for the next few days and, overall, he would require 3 to 5 days to recoup. He was dismissed from his job by VA primarily due to his migraine disorder, and denied taking leave for any other medical condition. He didn't take the appropriate steps to apply for disability retirement, and had been unsuccessful for obtaining gainful employment. He was volunteering in prison ministry as well as teaching young people about the Bible. He did this one hour a day for three days of the week and 4 hours a day for two additional days. He applied for vocational and rehabilitation training to become a chaplain, but VA determined that it was not a medically reasonable vocation as a result of his migraine disorder. His current treatment for migraine headaches included shots and Tylenol #3. He averaged 6 days per month missed work due to his migraines, and believed he could work if accommodations were made for his disability. He particularly thought he could be productive in an occupation such as a chaplain, even while having a rebound headache as long as he took Tylenol #3. However, he was not able to function during a migraine headache. In a VA Form 9 filing received May 2002, the veteran disagreed with VA's determination that chaplain training was not feasible. In so doing, he referred to a chaplain job description indicating that chaplain duties were closely related to office administrative duties. Subsequent VA clinic records showed continued treatment for migraine headaches occurring two times per month. On June 9th, 2002, he reported that his Toradol shots usually worked. Nevertheless, he was receiving Toradol shots twice per month. On VA mental disorders examination in January 2003, the veteran described his mental problems as moodiness, easy irritation and anger, and feeling like the "underdog." His anger began in the early 1990's when his headaches became more of a factor and he "lost control of his life." His defense against anger basically was avoidance. He did not socialize or go in public except for his volunteer work. His marriage was "good" but he avoided his family at times. He stopped working at VA after a sudden disagreement with his supervisor who had questioned the legitimacy of his headaches and he "lost it." He had missed many work days the last two years due to his headaches which would seem to occur on Wednesday and Thursday and ruin the whole weekend. He did volunteer work on a steady basis which was "something I can do" as it gave him a role in life. His mental status examination resulted in a diagnosis of "[n]o psychiatric disorder" with Axis II diagnosis of schizoid personality adaptation not reaching the level of schizoid personality disorder. He was assigned a GAF score of 91 for the current and past year. The examiner also offered the following discussion: No psychiatric disorder is seen. The patient's strategy of avoidance seems to be working well for him at this time. This constitutes a personality trait, but not a personality disorder or illness. VA neurological disorders examination in January 2003 reflected the veteran's continued report of migraine headaches associated with nausea, photophobia, sharp stabbing right-sided head pain, and taste disturbance. His headaches lasted for a few hours at which time he isolated himself in a dark room. Afterwards, he had a dull ache which lasted a few days. He stayed in bed several days because it became worse if aggravated. Over the last several months, he reported spending 6-7 days in bed with about 2 headaches per month. He indicated weekly headaches when he was working. For this reason, he was not working and claimed unemployability. He took Toradol and Tylenol #3 for severe headaches. A review of his records indicated that he was reluctant to take any prophylaxis, but that he was on Verapamil for hypertension. His physical examination was unremarkable. He was given the following assessment: Common migraine, current frequency 2/month. Seems to be out of commission for approximately 6 days per month. Available records only go back to 1999 and his headache frequency has been stable at 2-3/month over that time. AO visits for headache treatment vary from a high of 3/month to every 3 months over that time. By his history, employment increases the frequency of his headaches to weekly. If he truly spends several days in bed with a headache, this would render him unemployable. Prophylaxis therapy might improve his headache control. On VA heart examination in January 2003, the veteran reported a current diagnosis of myocarditis manifested by a leaking heart valve and an irregular heart beat. He associated this diagnosis with his use of Imitrex and Propranolol in 1992. He had discontinued use of these medications after being hospitalized, but continued to have chest pain which he described as soreness and deep pain in the left chest area. Moving the wrong way or lifting something heavy often caused this pain. He had dyspnea on exertion and chronic fatigue. There was no history of peripheral swelling. He had dizziness only associated with headaches with no history of syncope. He denied being on any cardiac or antihypertensive medication. He denied a diagnosis of hypertension. On physical examination, he presented as well developed and well nourished. His pulse was 64 with respirations of 16. He had blood pressures of 120/82, 124/80 sitting and 120/80 reclining. His lungs were clear to auscultation and percussion without rales, rhonchi or wheezes. His heart sounds showed regular rate and rhythm without murmur, rub or gallop. His PMI was not displaced, and precordium was not hyperactive. He had positive chest-wall pain to palpation in the left lateral chest-wall area. His abdomen was without apparent organomegaly, masses or tenderness. Bowel sounds were normoactive. There was no peripheral edema. His diagnoses included musculoskeletal chest-wall pain and no diagnosed heart condition. The examiner also offered the following addendum: C. file was reviewed. The majority of the C. file contains administrative type records and not medical records. I did find the March 1994 examination but it included two pages, and the third page was missing. Recent records from Jackson VA Hospital, which is reportedly the only place he is being followed, do not list a heart condition. The majority of visits are for his migraine headaches. There is a discharge summary of record dated December 1992. This discharge summary had the diagnosis of myocarditis of unknown etiology which was crossed out to read cardiomyopathy, dilated of unknown etiology. This discharge summary states the patient was on Pamelor (nortriptyline) at that time for his migraines. His ejection fraction per echocardiogram was 20 percent. He has another discharge summary dated 10/20/93 for pleuritic chest pain. Cardiology saw the patient and felt his shortness of breath was not secondary to a cardiac event. He had a gated heart scan with an ejection fraction of 83 percent. His stress test was negative. An echocardiogram revealed mild mitral prolapse and an ejection fraction of 70 percent. CURRENT FINDINGS: The patient does not have a current diagnosis of a heart condition. Reasons and rationale are a normal chest x-ray with the heart to be normal in size; a normal EKG with sinus mechanism rate of 55; a normal echocardiogram with an ejection fraction of 55 percent; a normal exercise stress test with a METS level of 9.1 and chest pain nor arrhythmias on the stress test. The patient does not currently have a diagnosed heart condition. He had myocarditis or cardiomyopathy of unknown etiology in December 1992. It was noted in the discharge summary that he was on Pamelor (nortriptyline) at that time. Pamelor has been associated with myocardial infarction and arrhythmias, but the patient did not have a myocardial infarction. Propranolol has been associated with congestive heart failure, but the veteran had dilated cardiomyopathy of unknown etiology or myocarditis of unknown etiology, and did not have congestive heart failure. It was not listed that he was taking propranolol at the time of this event in December 1992. He has had a continuous chest pain and "irregular heartbeats" since December 1992, even though he no longer takes propranolol nor Pamelor. He currently has no diagnosed heart condition. He has atypical chest pain, etiology unknown. I cannot relate his single episode of myocarditis or cardiomyopathy in December 1992 to his migraine headaches or medications taken for his migraine headaches. I cannot relate his current atypical chest pain to his single episode of myocarditis or cardiomyopathy in December 1992. Thereafter, the veteran's VA clinic records show continued treatment for migraine headaches with Torodal injections. In December 2003, the veteran testified to private treatment for a heart condition, including his participation in a heart study at Jackson State University. His findings included borderline enlarged left atrium, mitral regurgitation, pulmonary regurgitation and recurrent palpitations, etiology unknown. His physicians, however, had not provided an opinion on the etiology of his abnormal findings. He believed his last VA psychiatric examination was inadequate as it was based on a five-minute interview. He also believed the recent neurology examination report failed to provide a definitive opinion regarding his unemployability. He lost his VA employment in 1994, at which time he was earning $30,000, as a result of the frequency and duration of his headaches. He would experience 3 incapacitating headaches per month requiring Toradal injections. He also had "rebound" headaches, lasting 8 to 24 hours in duration, which required him to take Tylenol #3 whose side-effects interfered with his employability. Overall, the severity, duration and frequency of his headaches had remained the same throughout the appeal period. He thought he was capable of performing the duties of a chaplain noting the flexibility in the hours of service. He also thought he would be capable of returning to college to obtain the necessary degree. At the time of his hearing, the veteran presented additional evidence to be considered in his case. An August 1993 letter from the veteran's VA supervisor noted his difficulty with meeting his performance standards as well as his "illness this past year." He submitted a leave statement for the year 1992 as follows: 1992 Hours of leave 01-08 43/4 01-21 31/2 02-06 3/4 03-04 7 03-18 8 03-19 8 04-01 31/4 04-02 8 04-03 8 04-21 8 05-11 8 05-12 8 05-13 8 05-14 8 05-15 8 05-18 8 05-19 31/2 05-22 8 06-03 71/2 06-05 8 06-11 8 07-10 8 07-14 31/2 07-16 31/2 08-31 8 09-01 8 09-03 8 09-08 41/2 09-10 8 09-15 8 09-16 8 09-17 8 09-18 8 10-14 8 10-15 8 10-26 8 10-27 8 11-16 8 11-17 8 11-18 8 11-19 8 11-20 (51/4) A physicians certificate authorized the veteran's work absence due to a migraine headache from August 15 to August 17, 1994. The veteran also submitted documentation regarding his participation in the Jackson Heart Study conducted by the University of Mississippi Medical Center. A comprehensive cardiac evaluation conducted by Tellis B. Ellis, III., M.D., in June 2003 analyzed heart study findings as follows: EKG shows normal sinus rhythm, increased voltage, probably early repolarization type ST elevation. An exercise treadmill test using a modified Bruce protocol was performed. Target heart rate achieved with no chest pains or ST segment displacement. Normal exercise test. Echocardiogram showed normal left ventricular chamber size and wall motions, normal left ventricular systolic function. Ejection fraction is 50-55%. There is mild left atrial enlargement, mitral valve sclerosis, mild mitral regurgitation, mild tricuspid regurgitation, and right ventricular systolic pressure 37 mm of mercury. There is mild PI. No pericardial effusion. IMPRESSION: 1. Recurrent palpitations, etiology unknown. The patient's cardiac function is normal. He has mild regurgitation. The etiology of the recurrent palpitations and vague chest pains is not clear. I do not believe he is experiencing angina ... Finally, the veteran submitted a statement indicating that his headaches had worsened with rebound headaches lasting 8 to 24 hours in duration with another 24 hours needed to recuperate. In support of his claim, the veteran has submitted several medical articles and publications. One article from www.rxmed.com defines mitral valve prolapse as the bulging of both leaflets of the mitral valve, located between the left ventricle and left atrium in the heart, during the contraction phase of the heart cycle. It was a common benign disorder of unknown origin, although the autosomal dominant type was occasionally inherited. It was often an incidental finding in normal persons without any symptoms. However, symptoms which could be present included chest pain (sharp, dull or pressing), fatigue, shortness of breath, dizziness, anxiety, lightheadness when getting up from a chair or bed, palpitations and history of migraine. Risk factors included patients with cardio-myopathy, coronary artery disease as well as subgroups with hyperthyroidism, Grave's disease, hypomastia, Duchenne muscular dystrophy, myotonic dystrophy, sickle cell disease, atrial septal defect, Marfan syndrome and rheumatic heart disease. For most patients, no treatment or medications were necessary, but some symptoms of excessive tone could require treatment with beta blockers. Rarely, heart valve surgery could be considered in select patients. Physical restrictions were usually not required, but patients with definite clicks and murmurs were suggested to refrain from sports requiring maximum effort. The risk of complications was very low, but rare complications included congestive heart failure, stroke, mitral regurgitation and infective endocarditis. Another article from www.tmc.edu further noted that MVP affected 5% to 7% of the population occurring more often in women than men. An article from www.mamashealth.com defined myocarditis as an inflammation or degeneration of the heart, and a possible complication during or after various bacterial or parasitic infectious diseases such as polio, rubella or rheumatic fever. It was often caused by various diseases such as syphilis, goiter, endocarditis or hypertension, and may appear as a primary disease in adults with degenerative disease of old age. It may be associated with dilation (enlargement due to weakness of the heart muscle) or with hypertrophy (overgrowth of the muscle tissue). Individuals who smoked cigarettes had a higher mortality and risk of myocardial infarction than individuals who do not smoke. In some cases, myocarditis could progress to congestive heart failure requiring hospitalization, heart failure medications, or cardiac transplantation. The cause of myocarditis was inflammation of the muscle of the heart. A variety of medical conditions could cause myocarditis, the most common cause was infection by viruses such as enteroviruses. Over many years, a chronic enterovirus heart infection and the body's response to that infection could lead to irreversible heart muscle damage and heart failure. Patients with acute myocarditis and chronic myocarditis experienced different symptoms. In both acute and chronic myocarditis, individuals might experience fever, chest pains, a sensation of skipped heart beat (palpitations), dyspnea and fatigue. There was no specific treatment for myocarditis, and treatment was usually based on the patient's symptoms Articles from www.drugdigest.org and www.psyweb.com describe Propranolol, also known as Inderal, Inderide, and Ipran, as an antianginal, antiarrythmic, antihypertensive antimigraine drug and beta-blocker. Beta-blockers were not FDA approved for the treatment of anxiety or nervous tension, but such use was general in application. It was also used in the treatment of aggressive behavior, angina, certain types of pain, high blood pressure, migraine headaches, narcotic withdrawal, panic attacks, pectoris, phobias, schizophrenia, tremors, to help prevent second heart attack, and the effects of antipsychotic drugs. The drug was not habit forming and could be taken for months or even years. The actual dosage was to be determined by the physician, but normal dosage was up to eight months only. Precautions were necessary for patients having liver problems. Overdose symptoms included confusion, changes in heart beat, difficulty breathing, discoloring of fingernails/palms, and loss of consciousness, sleepiness, or seizures. Propranolol use was contraindicated for patients with low blood pressure, diabetes, sever allergies, asthma, chronic pulmonary disease or severe heart disease. Common side-effect symptoms included dizziness/slight drowsiness, male impotence. Rare side- effects included decreased sexual ability, trouble with sleep, difficulty breathing, cold hands/feet, hallucinations, irregular heartbeat, skin rash, swelling of the ankles, feet or back, joint pain, chest pain, depression, confusion, nausea, fever, or abdominal cramps. Another article from www.pysweb.com described Nortriptyline, also known as Aventil and Pamelor, as a tricyclic antidepressant and antineuralgic used to treat endogenous depression, chronic skin disorders, depression, migraine headaches, panic disorder, severe arthritis, bedwetting, AIDS, PMS, ADHD, ringing ears, and with other drugs to manage chronic/severe pain. It worked by restoring levels of norepinephrine and serotonin in the brain. Lower dosages were recommended for patients with liver and kidney dysfunction. Overdose symptoms included confusion, convulsions, hallucinations, heart failure, loss of consciousness, lowered body temperature, sleepiness/deep sleep, or tremors. The drug was non habit-forming. Common side-effects included blurred vision, constipation, cramps, disorientation, drowsiness, dry mouth, headache, low blood pressure, or sensitivity to bright lights. Rare side-effects included anxiety, black tongue, confusion, convulsions, hair loss, increased appetite, insomnia, intestinal blockage, racing heartbeat/palpitations, males developing breast, nightmares, odd taste, ringing in ears, seizures, sexual problems, swelling testicles, skin rashes/allergies, tingling, weight gain/loss, or yellowing skin/whites of eyes. Additional literature includes comments from what appears to be a website dedicated to physicians answering questions posed by laypersons. These communications note that researchers have discovered a link between migraines and heart attacks as migraines cause a dilation of blood vessels in the scalp. It was also noted that medication used to treat migraines caused dilation of the blood vessels of the scalp and exerted constrictor effects on the arteries which fed the blood to the heart muscle. It was further noted that migraine sufferers with heart disease should avoid certain anti-migraine medications. The veteran has also referenced the 1993 version of PDR, page 2572, which states that individuals with heart problems who continue use of beta blockers can have cardiac failure. III. Analysis The claimant bears the burden to present and support a claim of benefits. 38 U.S.C.A. § 5107(a) (West 2002). In evaluating claims, the Board shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The benefit of the doubt rule, however, is not for application when the preponderance of the evidence is against a claim. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). VA has defined competency of evidence, pursuant to 38 C.F.R. § 3.159(a), as follows: (1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. A. Service connection - heart condition The veteran claims entitlement to service connection for a heart condition as secondary to his service connected migraines and/or secondary to medications used to treat his migraine disorder. Service connection may be established for disease or disability proximately due to or the result of a service connected disease or injury. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310(a) (2003). The Court of Appeals for Veterans Claims has construed the provisions of 38 C.F.R. § 3.310(a) as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Id. The veteran first claims that he manifests a current cardiac disability manifested by mitral valve prolapse and symptoms of an irregular heart beat and chest pain. He also refers to his hospitalization in 1992 for myocarditis/dilated myocardiopathy. Undoubtedly, the veteran was hospitalized in 1992 for what was then termed as myocarditis and/or dilated myocardiopathy of unknown etiology. VA clinic records do not show any current treatment for a diagnosed cardiac disability. VA examination in 1994, which included extensive diagnostic testing such as EKG, a 24-hour Holter monitor, ECHO, chest x-ray and laboratory findings, included diagnoses of resolved myocarditis and/or dilated myocardiopathy, frequent PVC's and mitral valve prolapse. VA examination in January 2003, which also included extensive diagnostic testing and review of the claims folder, concluded that the veteran did not manifest a current diagnosis of a heart condition. Recent medical records submitted by the veteran establish a diagnosis of recurrent palpitations of unknown etiology. For purposes of this appeal, the Board will consider the veteran's mitral valve prolapse and symptoms of chest pain and irregular heartbeats as a current disability. In order to substantiate his claim, the veteran bears a minimum burden of placing the evidence into equipoise as to whether his mitral valve prolapse and symptoms of chest pain and irregular heartbeats are related to his service connected migraines and/or medications taken to treat his migraines. The Board accepts as competent evidence the medical treatise articles indicating that side-effects of Propranolol include irregular heartbeats and chest pain. 38 C.F.R. § 3.159(a)(1) (2003). This information, while helpful, is of limited value as it does not speak directly to the circumstances of the particular case, i.e., whether the veteran's taking and eventual discontinuance of Propranolol caused permanent or chronic symptoms of mitral valve prolapse, irregular heartbeats and/or chest pain. See Sacks v. West, 11 Vet. App. 314 (1998) (a generic medical treatise evidence that does not specifically opine to the particular facts of the appellant's case holds little probative value). A VA examiner in 1994 accepted the principle that Propranolol use could lead to complications such as cardiac failure. The examiner, however, reviewed the particular circumstances of the veteran's case and concluded that the veteran's use of Propranolol was not the cause of any claimed cardiac condition, to include his mitral valve prolapse and frequent PVC's. A VA examiner in 2003 concluded that the veteran's single episode of myocarditis or myocardiopathy in 1992 could not be related to his migraine headaches or medications taken for his migraine headaches. The examiner reached the same conclusion with respect to the veteran's complaint of atypical chest pain. Dr. Ellis' June 2003 examination report indicates a diagnosis of recurrent palpitations of unknown etiology. Therefore, the Board finds that the preponderance of the evidence establishes that the veteran's current symptoms are not causally related to his service connected migraine disorder and/or the taking of medications to treat his service connected migraine disorder. In so holding, the Board has considered the lay statements of record regarding the veteran's historical treatment and symptoms of mitral valve prolapse, irregular heartbeats and chest pain. These statements hold some probative value. The medical treatise materials do not establish that such symptoms are chronic residuals of Propranolol use. Furthermore, these documents indicate that the origin of mitral valve prolapse is unknown but most commonly associated with a viral infection. It was also noted to be a "benign" disorder commonly found in the population at large. This evidence, in and of itself, does not have a tendency to support the claim. The veteran's own self-diagnosis and analysis of the treatise materials holds no probative value in this case as the veteran is not shown to possess the requisite training in matters requiring medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); 38 C.F.R. §3.159(a) (2003). The VA clinic records, which include notations such as the veteran cannot take Imitrex due to cardiac problems, are merely a transcription of the veteran's history of past pharmaceutical treatment. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute 'competent medical evidence.'" In summary, the preponderance of the evidence establishes that the veteran's claimed heart condition, to include mitral valve prolapse and symptoms of chest pain and irregular heartbeats, are not causally related to his service connected migraine disorder and/or the taking of medications to treat his service connected migraine disorder. The benefit of the doubt rule per 38 U.S.C.A. § 5107(b) is not for application in this case. Ortiz, 274 F.3d at 1365. Therefore, the claim for service connection for a heart condition as secondary to service connection migraine headaches and/or medications taken for service connected migraine headaches must be denied. B. Service connection - nervous condition The veteran also alleges service connection for a nervous condition as secondary to his migraine headaches and/or medications taken for service connected migraine headaches. Review of the record includes past diagnoses of depressive disorder NOS and dysthymia. The medical treatise articles submitted note that rare side-effects of Propranolol use include depression, but the article does not establish that depression would be a chronic disability after discontinuation of use. VA examination in 2003, based upon review of the claims folder, found no evidence of a current psychiatric disorder. The only evidence of record suggesting a possible relationship between a claimed nervous condition, to include depressive disorder NOS and dysthymia, and the veteran's migraine headaches and/or medications taken for service connected migraine headaches consists entirely of the veteran's statements of record. Such evidence holds no probative value in this case as the veteran is not deemed capable of providing a medical opinion of causation. Espiritu, 2 Vet. App. at 494; 38 C.F.R. §3.159(a) (2003). Rather, the veteran himself appears to relate the onset of his depressive symptoms to his diagnosis of non-service connected myocarditis. The veteran has failed to meet his minimum burden of proof in this claim, and the claim for service connection for a nervous condition as secondary to service connection migraine headaches and/or medications taken for service connected migraine headaches must be denied. C. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2003). For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.17 (2003). Factors to be considered, however, will include the veteran's employment history, educational attainment and vocational experience. 38 C.F.R. § 4.16 (2003). The veteran is in receipt of a 50 percent rating for service connected migraine headaches, and a 10 percent rating for residuals of keloids of the upper chest. This results in a combined disability rating of 60 percent. 38 C.F.R. § 4.25 (2003). Thus, he does not manifest a single service connected disability ratable to at least 60 percent, or one disability ratable to at least 40 percent with sufficient additional disability combining to 70 percent. Parenthetically, the Board notes that the migraine and keloid disorders do not involve the same body system, result from a single accident or etiology, or result from multiple injuries incurred in combat or as a result of being a prisoner of war. See 38 C.F.R. § 4.16(a)(1)-(4) (2003). The Board must find that the veteran is not entitled to consideration of a TDIU rating under the schedular standards of 38 C.F.R. § 4.16. However, a claim may be referred to the Director of Compensation and Pension Service for extra-schedular consideration where the evidence establishes that the veteran is unemployable by reason of service-connected disability, but fails to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b) (2003). An assessment for extra-schedular referral requires consideration of the veteran's service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. The veteran's age and effects of non-service connected disability, however, are not factors for consideration. 38 C.F.R. §§ 3.341(a), 4.19 (2003). Substantially gainful employment refers to, at a minimum, the ability to earn a living wage, and one is not engaged in substantially gainful employment if annual income below the poverty threshold for one person. Bowling v. Principi, 15 Vet. App. 1, 7 (2001). Proving inability to maintain "substantially gainful occupation" to TDIU does not require proving 100% unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (Dec. 27, 1991). The issue at hand involves a determination as to whether there are circumstances in this case, apart from the non- service-connected conditions and advancing age, that would justify a total disability rating based on unemployability. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board must determine if there is some service connected factor outside the norm which places the veteran in a different position than other veterans with a 60% combined disability rating. Id. The fact that the veteran is unemployed or has difficulty obtaining employment is not enough as a schedular rating provides recognition of such. Id. Rather, the veteran need only be capable of performing the physical and mental acts required by employment. Id. The determination in this case largely revolves upon the veteran's report regarding the severity, frequency and duration of his migraine headaches. He has consistently alleged two to three migraines per month which is largely supported by VA clinical records, to include bi-monthly Toradol injections. However, the Board finds irreconcilable discrepancies of record regarding the veteran's descriptions of duration of his symptoms, to include his "rebound" headaches. By some reports, he claims that his migraine disorder causes him to miss three to seven workdays per migraine episode. This is the result of an incapacitating episode of migraine followed by "rebound" headaches and a one-day recuperation period from fatigue. He claims that his excessive leave for the years 1992 to 1994 was due solely to his migraine headache disorder. On the other hand, the veteran has admitted to a VA Vocational Counselor that his "toradal shots ha[ve] been helpful and help[ed] him recover from the headaches in a one day period." He testified to missing a total of 6 work days per month due to his migraines, and that his "rebound" headaches are treatable with medication so as not to interfere with his employability. VA clinic records also document his report that his Toradol shots worked "well." The Board, therefore, must assess the accuracy and credibility of the veteran's report of symptomatology. The documentary evidence of record includes VA clinic records showing bi-monthly Toradol shots due to migraines. There are no physician orders for bed rest other than one physician note excusing two days' of missed work time in August 1994 due to migraines. Sick leave reports for the year 1992 show 3/4 of an hour in February, 1 day in January and August, 2 days in July, 3 days in June, 31/2 days in March, and 4 days in October, 5 days in September and November, and 7 1/2 days in May. The record discloses that the September leave included a hospitalization for a gastrointestinal virus. With the exception of May, this documentary evidence does not support the veteran's claims of requiring three to seven days of leave time per migraine episode. Undoubtedly, the veteran's leave statements do show excessive leave time use from January 1993 to April 1993. His VA records indicate that he was hospitalized in December 1992 for his myocarditis. The veteran himself described to a VA examiner in March 1994 that his excessive leave use began after being diagnosed with myocarditis which apparently caused him to have depression and dreams of death. Thereafter, pay periods 5 through 19 show 4 periods without leave, and 6 periods with 8 hours or less. Of note, a federal pay period is every two weeks. There are periods of excessive leave beginning in pay period 20, but it is known from the record that the veteran was hospitalized in October 1993 due to pleuritic chest pain manifested by fatigue of several weeks duration. Interestingly, the leave reports for 1994 show 10 pay periods with no leave usage, 3 pay periods with 2.5 hours, and 5 pay periods with 8 hours or less. Accordingly, this evidence does not tend to support the veteran's allegations. Further weakening the veteran's allegations is his admissions to a VA examiner in March 1994 that his excessive leave usage followed his diagnosis of myocarditis and symptoms of irregular heartbeats, chest pain, depression and fatigue. He admitted a similar history to a VA examiner in June 1999. On the above mentioned evidence, the Board finds that the preponderance of the evidence demonstrates that the veteran manifested, and continues to manifest, a migraine disorder with 2 to 3 incapacitating episodes per month. Per his admissions, the incapacitating episodes last for one to days in duration, and his following "rebound" are treatable with medication which do not interfere with his employability. Medical opinion potentially in favor of the veteran's claim includes a January 2003 VA examination report wherein the examiner concluded "If [the veteran] truely spends several days in bed with a headache, this would render him unemployable." This opinion is based upon the veteran's report that his rebound headaches lasted three to seven days in duration as the examiner did not find confirming evidence in the claims folder. As held above, the Board finds the veteran's history as reported to the examiner is not trustworthy and, thus, the Board assigns very little weight to the opinion. Cf. Reonal v. Brown, 5 Vet. App. 458, 460-1 (1993); Guimond v. Brown, 6 Vet. App. 69, 72 (1993)(medical opinion based on a rejected factual predicate has no probative value). The VA Vocational and Rehabilitation Service has conducted an extensive review of the veteran's employability status. Their conclusion that the veteran's service connected migraine disorder impairs his employability is consistent with the 50 percent rating assigned in this case. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2003)(50 percent schedular rating contemplates very frequent completely prostrating and prolonged attacks of migraines productive of severe economic inadaptability). A July 2001 VA occupational therapy final report concluded that the veteran would not be physical disqualified from being a chaplain as a result of his migraine disorder, and the Vocational and Rehabilitation Service has ultimately concluded that the veteran's migraine disorder would not preclude him from employment in a conventional area such as working with data/office practices. Additionally, the veteran himself has stated his belief that he could return to substantially gainful employment. In September 2001, he testified to his belief that he could return to substantially gainful employment if accommodations could be made for him missing 6 days per month due to his migraines. Letters submitted on behalf of his claim of entitlement to Vocational and Rehabilitation services also tend to support his ability to perform substantially gainful employment. Finally, the June 1999 VA diagnosis of depressive disorder NOS included a GAF score of 45. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996) citing Diagnostic and Statistical Manual of Mental Disorders, 4th ed. 1994) (DSM- IV). A GAF of 45 score represents psychological, social, and occupational functioning intermediate between major and severe in degree that is consistent with an inability to hold a job. Id. Accordingly, the veteran's unemployability has been affected by non-service connected disability which may not be considered by the Board in determining entitlement to TDIU. Overall, the Board places the greatest probative weight on the opinion and expertise of VA's Vocational and Rehabilitation Service in determining that the veteran is capable of performing substantially gainful employment. This opinion is based upon interview of the veteran, to include his inconsistent statements regarding the severity, duration and frequency of his migraines, and an analysis of his vocational and educational background. In this respect, the Board notes that there is affirmative evidence of the veteran's employability in a conventional area such as working with data/office practices. Cf. Bowling, 15 Vet. App. at 8 (noting that Board improperly relied on negative evidence to find employability). The Board also notes that the schedular criteria for his 50 percent rating are intended to compensate him for considerable loss of working time from exacerbations, such as 6 days per month. See 38 C.F.R. § 4.1 (2003). Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to TDIU as there is positive evidence demonstrating the veteran capable of substantially gainful employment. The Board finds no existing factors exist which takes his case outside the realm of the usual so as to render impracticable his 50 percent schedular rating. The benefit of the doubt rule is not for application, see 38 U.S.C.A. § 5107(b), and the claim for entitlement to TDIU is denied. ORDER Service connection for a heart condition secondary to service-connected migraine headaches is denied. Service connection for a nervous condition secondary to service-connected migraine headaches is denied. Entitlement to TDIU is denied. ____________________________________________ C.W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2