Citation Nr: 0328891 Decision Date: 10/24/03 Archive Date: 11/04/03 DOCKET NO. 01-08 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased (compensable) disability rating for hearing loss in the left ear, currently rated noncompensable or zero percent disabling. 2. Entitlement to service connection for a lung disorder due to asbestos exposure. 3. Entitlement to service connection for hearing loss in the right ear. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for coronary artery disease. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The veteran served on active duty from July 1968 to July 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2001 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). The claims of entitlement to an increased (compensable) disability rating for hearing loss in the left ear and service connection for coronary artery disease will be addressed in the Remand portion of this decision. FINDINGS OF FACT 1. There is uncontroverted medical opinion evidence that the veteran's right ear hearing loss is causally related to noise exposure and the veteran was exposed to acoustic trauma in service, thus, the evidence is in equipoise as to whether hearing loss in the right ear was incurred in service. 2. There is uncontroverted evidence of tinnitus which has been associated with the veteran's history of noise exposure and ear infections. 3. The veteran did not have a job in service that was consistent with asbestos exposure, there are no objective indicators of asbestos exposure in the service medical records, and no health care professional has associated the current lung disease with asbestos exposure in service, thus, the preponderance of the evidence demonstrates that the veteran does not have a lung disorder due to asbestos exposure in service. CONCLUSIONS OF LAW 1. Hearing loss in the right ear was incurred in active military service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2003). 2. Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2003). 3. A lung disorder due to asbestos exposure was not incurred in or aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. VCAA Duties In November 2000, the President of the United States signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat. 2096 (2000). This act introduces several fundamental changes into the VA adjudication process. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). These changes were codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R. § 3.159 (2003). In effect, this new legislation eliminates the requirement under the old 38 U.S.C.A. § 5107(a) (West 1991) that a claimant must present a well-grounded claim before the duty to assist is invoked. Under the VCAA, VA's duty to notify and assist has been significantly expanded in the following areas. First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102 (West 2002); 38 C.F.R. § 3.159(b)(2) (2003). Second, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2003); See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003). Initially, the Board finds no deficiencies with the duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete as required in 38 U.S.C.A. § 5102. With respect to VA's duty to notify, the record shows that the requirements of the VCAA were set forth in detail in letters furnished to the appellant and his representative in August 2001. He was also provided Supplemental Statements of the Case (SSOC) in October 2002. Moreover, it appears from the contentions and arguments presented by the appellant that he is fully aware of the relevant law and evidence germane to his claims at issue on appeal, and is aware, as well, of the responsibilities that both he and VA share with respect to the development of the claims. The VCAA-notice letter of August 2001 informed him what evidence and information VA had and what VA would be obtaining, and explained that VA would make reasonable efforts to help him get evidence such as medical records, but that he was responsible for providing sufficient information to VA to identify the custodian of any records. The letter further informed the veteran of the provisions of the VCAA and VA's duties. The veteran was told he could be scheduled for an examination if necessary. In view of the above, and from review of the evidence in the claims file, there does not appear to be any additional missing information or other evidence that has not been accounted for in the RO's notification actions taken in connection with the appellate development and review of this appeal. Therefore, the Board finds that the Department's duty to notify has been satisfied. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). With respect to VA's duty to assist, VA and private outstanding records have been identified and obtained. The veteran has indicated, by letter dated in October 2002, that he has no additional evidence to submit. The Board finds that the claims not being addressed in the Remand are substantially complete. The duty to assist also includes, when appropriate, the duty to conduct a medical examination of the claimant. In this case, the RO did not provide the appellant with a VA compensation examination in connection with the development and adjudication of the claim for asbestos-related lung disease. Under the regulation that implements the VCAA, an examination is necessary if the evidence of record does not contain sufficient medical evidence to decide the claim but indicates that the claimed disability or symptomatology may be associated with another service connected disability. See 38 C.F.R. § 3.159 (c) (4) (2003). However, the regulation indicates that the VA will refrain from or discontinue providing assistance if a substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the appellant would substantiate the claim. Circumstances in which this would be applicable include but are not limited to when the veteran has a lack of qualifying service or when the claim clearly lacks merit or is inherently incredible. See 38 C.F.R. § 3.159 (d) (2003). The Board notes that the claim presented for asbestos related lung disease includes no medical or objective evidence that any current lung disease is in any way related to service. Moreover, the Board notes that the veteran has presented evidence that he has been involved in post-service asbestos removal and that he has been awarded money as a result of a law suit related to the post service exposure. However, he has not been forthcoming with the records of that law suit although he was asked by VA to produce these records. In view of the extensive evidence regarding current lung disease, and the lack of objective indicators of asbestos exposure in service, the VA found that there was no reasonable possibility that any assistance VA would provide to the appellant would substantiate the claim, and an examination was not provided. Finally, the Board notes that the VCAA notification letter sent to the appellant substantively complied with the recent holding of Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), wherein the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. More than one year has passed since the VCAA letter was sent, so the appellant's case was not decided before the one-year period expired, and he had more than ample time to submit additional evidence. The VCAA letter provided pertinent law and addressed all evidence presented in the claim. More importantly, in October 2002, the veteran submitted a signed statement subsequent to the last supplemental statement of the case (SSOC) issued that same month affirming that he had reviewed the SSOC, that he had no additional evidence to submit, and that he did not want to wait the 60 days for the case to go to the BVA but rather that he wanted his case to go to the Board for a decision immediately. It is clear that the claimant has nothing further to submit, and adjudication of his claim can proceed. In light of the circumstances of this case, it appears that VA has done everything reasonably possible to assist the appellant. Further delay of the appellate review of this case by the Board would serve no useful purpose. Accordingly, the Board finds that additional efforts to assist within the letter and spirit of the VCAA are not required. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). B. Service Connection 1. Pertinent Law and Regulations: Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, either the evidence must show affirmatively that such a disease or injury was incurred in or aggravated by service, or statutory presumptions may be applied. There must be medical evidence of a current disability, medical or lay evidence of in- service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in- service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Under the provisions of 38 C.F.R. § 3.102, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Lung Disorder due to Asbestos Exposure The veteran is seeking service connection for a lung disorder. He maintains that he was exposed to asbestos in service while wiping down asbestos covered pipes for white glove inspections at Fort Campbell. He also alleges exposure related to his Vietnam service. He reported that he was in the 2nd Battalion (mechanized) 22nd Infantry, in Vietnam. Then he was in the 4th Battalion, 3rd artillery, 1st armored division at Fort Hood, Texas. He also notes post service exposure, citing that he was an electrician for several years and he ran conduit and pulled wire and worked on power houses for the TVA following service. The claimant seeks to establish service connection for a lung disorder as a residual of asbestos exposure. With asbestos-related claims, VA must determine whether military records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between asbestos exposure and the claimed disease. In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (the Court) observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos- related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. The Board notes that the DVB circular has been subsumed verbatim as § 7.21 of VA manual M- 21. VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. The Court has held that "neither MANUAL M21-1 nor the Circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13Vet. App. 141, 146 (1999) aff'd, 287 F.3d 1377 (Fed. Cir. 2002); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4- 2000. The initial element of any service-connection claim is whether there is medical evidence showing a clinical diagnosis of the claimed disability. The evidence pertinent to this aspect of the claim includes the service medical records, which are silent as to any respiratory or pulmonary disorder. Current medical records include a chest X-ray from Hugh J. Mullin, M.D., dated in January 1999 showing pleural plaque consistent with asbestos exposure. There is a current diagnosis of severe obstructive lung disease. Thus, there is medical evidence showing a clinical diagnosis of the claimed disability. Next, the Board must address whether military records demonstrate asbestos exposure during service. The Board finds that they do not. Service personnel records show the appellant's assignments included training at Fort Campbell. He was sent to Vietnam where he was a rifleman, assistant machine gunner and automatic gunner. He was an infantryman. After returning to the United States, he was a material scarier driver at Fort Hood, Texas. These personnel records do not indicate that the appellant was exposed to asbestos. He was not performing any of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, or manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment etc. See M21-1, Part VI, 7.21(b)(1) (October 3, 1997). While the veteran urges that wiping down pipes and some of his general duties did establish exposure, the objective record simply does not support this contention. The Board emphasizes that it does not dispute the veracity of the veteran's statements that he performed these activities, there is no compelling evidence that he was exposed to asbestos while performing these duties. The veteran was a combat infantryman with a combat infantryman badge, a purple heart and a bronze star medal. He was engaged in combat, thus the provisions of 38 U.S.C.A. § 1154(b) (2002) apply and his statements are found to be inherently credible as to the fact that he performed these general duties, but there is no objective evidence that these duties exposed him to asbestos. In a letter dated in March 1999, a law firm made reference to an asbestos screening X-ray that showed asbestos exposure. The veteran was advised about asbestos litigation. In his RO hearing in August 2002, the veteran testified that he had in fact been involved in asbestos litigation and that he had received some money as a result of the suit. He was asked to send information regarding this suit to the VA, but no additional information has been received. While there is competent evidence of record suggesting that the veteran currently has a lung disorder that may be considered asbestos-related, there is no competent medical evidence indicating that any such disorder can be linked to service activities, and the veteran has therefore failed to satisfy the initial element of a service-connection claim. See Gilpin v. West, 155 F.3d 1353 (Fed.Cir. 1998) (holding that under 38 U.S.C.A. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). Furthermore, the record shows that there was no asbestos- related lung disorder present in service or following service until 1999, almost 30 years following service. In light of the evidence and based on this analysis, it is the determination of the Board that the preponderance of the evidence is against the claim of service connection for a lung disorder due to asbestos exposure. 3. Hearing Loss in the Right Ear and Tinnitus For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2003). The veteran urges that service connection is warranted for right ear hearing loss and tinnitus. He attributes his hearing loss to in-service acoustic trauma and recurrent ear infections dating from service. He claims his hearing loss in the right ear is related to service in the same way as his hearing loss in the left ear. In this regard, service connection is presently in effect for hearing loss in the left ear and has been in effect since 1970. Service medical records show a temporary profile for sensorineural hearing loss in May 1970. Recurrent ear infections were noted in the left ear. Audiometric examination at separation was normal. As previously noted, the veteran's service personnel records reflect he was an infantryman and an assistant machine gunner. This is consistent with his assertions of acoustic trauma. A VA treatment record dated in July 1995 shows bilateral sensorineural hearing loss, most likely secondary to noise exposure versus hereditary versus aging. Current VA treatment records show diagnoses of bilateral hearing loss and tinnitus. A VA examination report dated in April 2000 shows bilateral mixed hearing loss. The puretone average threshold in the frequencies 500, 1000, 2000, 3000, or 4000 Hz was 32.5 in the right ear. Speech recognition using the Maryland CNC Test was 90 percent. The examiner noted that the veteran's right ear hearing loss and tinnitus were related by the veteran to noise exposure and ear infections dating to service but were not really noticeable to the veteran until about 1995. For these reasons, the examiner stated that it was not possible for him to determine the etiology of either. The Board notes that post service medical records date the discovery of tinnitus and right ear hearing loss to 1995. While the record is devoid of a medical opinion directly relating these to inservice exposure to acoustic trauma, the VA treatment record dated in 1995 refers to noise exposure as the probable etiology of the veteran's bilateral hearing loss. The Board notes that the veteran's service records are consistent with acoustic trauma. The veteran was a combat infantryman with a combat infantryman badge, a purple heart and a bronze star medal. He was engaged in combat, thus the provisions of 38 U.S.C.A. § 1154(b) (2002) apply and his statements regarding acoustic trauma exposure in service are credited fully. Further, his left ear is service connected. Thus, the Board finds that the evidence supporting a finding that the right ear hearing loss is also of service origin is considerable. Considering the totality of the record, the Board concludes that the evidence for and against the claim of service connection for right ear hearing loss is at least in equipoise. Thus, the Board will resolve reasonable doubt in the veteran's favor and grant service connection for that claim. See Gilbert v. Derwinski, 1 Vet. App. at 55. As to tinnitus, the Board finds the veteran's contentions to be credible and consistent with the record. The Board notes that the veteran's hearing loss is service connected. The veteran has reported that the tinnitus is related to the same noise exposure that caused his hearing loss. The VA examiner in April 2000 indicated that he could not determine etiology of the tinnitus based on his review. Owing to these fact, the Board finds that the evidence is in equipoise as to whether tinnitus is related to service. Thus, the Board will again resolve reasonable doubt in the veteran's favor and grant service connection for tinnitus. See Gilbert v. Derwinski, 1 Vet. App. at 55. ORDER Service connection for a lung disorder due to asbestos exposure in service is denied. Service connection for hearing loss in the right ear is granted. Service connection for tinnitus is granted. REMAND As noted previously in this decision, the VCAA introduced several fundamental changes into the VA adjudication process in November 2000. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). These changes were codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R. § 3.159 (2003). In effect, this new legislation eliminated the requirement under the old 38 U.S.C.A. § 5107(a) (West 1991) that a claimant must present a well-grounded claim before the duty to assist is invoked. Under the VCAA, VA's duty to notify and assist has been significantly expanded in the following areas. VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2002); See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003). Additional RO action is required in this matter in order to fulfill the VA duties set forth in the VCAA. A current VA audiology examination would be helpful, as the last examination was several years ago and the veteran has presented substantial amplified complaints since that time. He is also now service connected for hearing loss in both ears. As to the claim for coronary artery disease, the Board notes that there is a July 2000 VA cardiac consultation which indicates that the veteran most likely had coronary artery disease for most of his adult life, that it is not known if he had it in service, but that it is highly suspicious given his history. In this regard, the examiner suggests but does not answer the question of whether any pre-existing coronary artery disease was at least as likely as not aggravated by service. With regard to the duty to notify, the Board notes the recent decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02- 7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The court found that the 30- day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Accordingly, this case is REMANDED to the RO for the following actions: 1. Make arrangements with the appropriate VA medical facility for the veteran to undergo audiology examination. Ask the examiner to state in the report if the claims folder was reviewed. All findings relevant to the claim of increased rating for left ear hearing loss should be recorded. 2. Make arrangements with the appropriate VA medical facility for the veteran's file to be reviewed by the examiner who examined him in July 2000, or another suitable examiner. Ask the examiner to state in the report if the claims folder was reviewed. The examiner should offer an opinion as to the following question: is it at least as likely as not that the veteran's coronary artery disease was present prior to and during service, and if so, is it at least as likely as not that it was aggravated beyond the natural progress of the disease in service. 3. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent as to the issues being remanded. 4. Readjudicate the veteran's claims for an increased rating for hearing loss of the left ear and service connection for coronary artery disease with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to the claims remains adverse to the veteran, he should be furnished an SSOC and afforded a reasonable period of time within which to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this REMAND are to obtain additional information and comply with due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ JEFF MARTIN 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