Citation Nr: 0331248 Decision Date: 11/12/03 Archive Date: 11/17/03 DOCKET NO. 94-05 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for coronary artery disease as secondary to service-connected post-traumatic stress disorder. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law ATTORNEY FOR THE BOARD L. H. Eskenazi, Counsel INTRODUCTION The veteran had active military service from September 1967 to April 1969, and from May 1969 to March 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the benefit sought on appeal. This appeal was previously denied by the Board in a decision dated August 7, 1997. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and in an August 1998 Order the Court granted the parties' Joint Motion for Remand and for Stay of Further Proceedings, and vacated the Board's August 1997 decision. The matter was returned to the Board for readjudication. On April 15, 1999, the Board issued a new decision denying the claim on appeal. The veteran appealed that decision to the Court, and in an Order dated August 29, 2000, the Court vacated the Board's April 1999 decision, and returned the appeal to the Board for readjudication. On November 14, 2001, the Board remanded this matter back to the RO for further development, including consideration of additional evidence, and issuance of a supplemental statement of the case (SSOC). See 38 C.F.R. § 19.31; 38 C.F.R. § 20.1904(c) (2001). The requested development was completed, and the case was returned to the Board for disposition. On March 18, 2003, the Board issued a new decision denying the appellant's claim. That decision was appealed to the Court, and in a June 2003 Order, the Court granted the parties' Joint Motion for Remand and vacated the Board's March 2003 decision. The case is now back before the Board for appellate disposition. FINDING OF FACT The probative medical evidence does not demonstrate that the veteran's coronary artery disease (CAD) was proximately due to his service-connected post-traumatic stress disorder (PTSD), or that his PTSD permanently aggravated his CAD. CONCLUSION OF LAW The veteran's CAD is not proximately due to or the result of service-connected PTSD, and was not aggravated thereby. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2003). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal arises out of the veteran's claim that he developed CAD as a result of his service-connected PTSD. As noted in the Introduction to this decision, this matter was previously denied by the Board in decisions dated August 7, 1997, August 29, 2000, and March 18, 2003. The Court vacated each of those decisions, respectively, in Orders dated April 15, 1999, August 29, 2000, and June 20, 2003. The basis of the most recent Court Order was a Joint Motion for Remand (Joint Motion), filed by the parties in June 2003. In the Joint Motion, the parties pointed out that there was additional relevant evidence presented to the Board before the March 2003 decision was rendered, although that evidence was not associated with the claims file at the time of the decision, and consequently, was not considered by the Board in its decision. Such evidence was recently located in a temporary file at the VARO. A date-stamp on the back of that evidence indicates that it had been received at the Board in October 2002; however, for some reason that evidence was not associated with the veteran's claims file until recently. As the Joint Motion correctly points out, although the evidence was not in the claims file at the time of the March 2003 Board decision, it was constructively part of the record and should have been considered on appeal. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The "new" evidence includes a statement from the veteran's representative, dated October 22, 2002, which indicates that "AOJ consideration of all new evidence submitted is waived." Therefore, the Board need not remand this case to the AOJ (agency of original jurisdiction) for consideration of the new evidence, and the Board will proceed with a new decision in this appeal, which includes a discussion of the newly discovered evidence. However, before discussing the merits of this appeal, the Board notes that in the August 2000 Order, the Court remanded several issues to the Board for merits consideration in the first instance, which pertain to the Board's authority to request medical opinions from VHA employees. According to the Court, for the first time on appeal to the Court "the appellant argue[d] that the Board had no authority to request a medical expert opinion from [a VA doctor], because such request was not made in accordance with 38 C.F.R. § 20.901, and that the only VA employee who is permitted to render such opinion ... is the Chief Medical Director of the Veteran's Health Administration (VHA)." Court Order at 2. Consequently, in addition to vacating the Board's April 1999 decision, the August 2000 Court Order included a list of issues for the Board to answer. The Board's March 2003 decision included a thorough discussion of the issues remanded by the Court's August 2000 Order. Although the Board's March 2003 decision has since been vacated, the Court's August 2000 Order was not revoked, and still requires a response. As such, before discussing the merits of this appeal, the Board will set forth a response to the issues raised in the Court's August 2000 Order. The Board will incorporate portions of the March 2003 decision into the present decision, as the former decision was vacated merely on a procedural matter, rather than for any substantive defects. At this time, the Board will address each of the issues remanded by the Court in the August 2002 Order. The Court's first issue was framed as follows: First, although the Court acknowledges that in [Winsett v. West, 11 Vet. App. 420 (1998), aff'd ___ F.3d ___, No. 99- 7039 (Federal Circuit 1999) (unpublished decision), cert.denied, 120 S.Ct. 1251 (2000)] the Court held that 38 U.S.C. § 7109 permits the Board to obtain an expert medical opinion from a VA employee, and does not require that all medical opinions be rendered from an independent source, the Court in Winsett does not appear to have dealt with which VA employees were authorized to render such opinions. See Winsett, supra; see also 38 U.S.C. § 7109. In this regard, the Court further acknowledges that, on the Winsett facts, the VA employee rendering the opinion was not the Chief Medical Director. See id. Nevertheless, the issue before the Court in Winsett did not involve the authority of any particular VA employee, only whether obtaining a VA medical opinion as opposed to an independent medical opinion was permissible. In other words, the Court acknowledged that 38 U.S.C. § 7109 permits the Board to obtain an expert medical opinion from a VA employee, but the Court questioned which VA employees are authorized to render such an opinion. The Court's second issue was as follows: Second, although section 7109 does not appear to limit who can render a medical opinion within VA ... 38 C.F.R. § 20.901 appears to permit a medical opinion from only one VA source, that being the Chief Medical Director. Finally, the third question presented by the Court was as follows: Third, although it appears that, pursuant to 38 U.S.C. § 512(a), the Secretary has delegated in 38 C.F.R. § 2.6(a) the responsibility to render expert medical opinions to the Chief Medical Director, he does not appear in that section to have assigned to the Chief Medical Director the power to further delegate such responsibility. See 38 U.S.C. § 512(a); 38 C.F.R. § 2.6(a). Accordingly, it is unclear whether VHA Directive 10-95-040 ... is an appropriate delegation of authority to issue medical opinions from the Chief Medical Director to VAMC medical doctors. In summary, the Court's questions concern: 1) which VA employees are authorized to render medical opinions under 38 U.S.C.A. § 7109; 2) whether 38 C.F.R. § 20.901 permits only the Chief Medical Director to render a medical opinion; and, 3) whether VHA Directive 10-95-040 appropriately delegates the authority to issue medical opinions to VA medical doctors. All three issues are closely related, and the Board will address the issues together. Initially, the Board notes that subsequent to the April 1999 Board decision (and prior to issuance of the Court's August 2000 Order), there were some amendments to 38 C.F.R. Part 2, which were made effective August 30, 1999. 64 Fed. Reg. 47,111 (August 30, 1999). The purpose of the amendments was to make "miscellaneous, nonsubstantive changes to various regulatory provisions by revising or adding authority citations, updating titles of positions and VA subunits, ... and making other nonsubstantive changes for the purpose of clarification." Id. The changes pertinent to this case are as follows. Sections 2.1 and 2.2 of 38 C.F.R. were redesignated as §§ 2.2 and 2.3, respectively, and a new § 2.1 was added which states that "In addition to the delegations of authority in this part, numerous delegations of authority are set forth throughout this title." 38 C.F.R. § 2.1 (2003). Moreover, the following amendments were made to 38 C.F.R. § 2.6. The introductory text of paragraph (a) replaced "Chief Medical Director" with "Under Secretary for Health." The references in paragraph (a) to "Veterans Health Services and Research Administration" were changed to "Veterans Health Administration." The references to "Deputy Chief Medical Director" in paragraph (a) were changed to "Deputy Under Secretary for Health." 64 Fed. Reg. 47,111 (August 30, 1999). Additionally, subsequent to the Court's August 2000 Order, VHA Directive 2000-049, was issued to replace VHA Directive 10-95-040, which lapsed on April 17, 2000. The purpose of VHA Directive 2000-049 was to outline the process by which VA medical centers and their physicians provide medical reviews for Board cases that require expert advisory medical opinions. The new Directive notes that the original Directive had "inadvertently lapsed" on April 17, 2000, although the parties continued operating under its terms. The new Directive was made effective on that same date, to indicate that the procedures have been continually in force. All actions taken after April 17, 2000, were ratified. See Purpose, VHA Directive 2000-049. Finally, effective July 23, 2001, there were some amendments made to 38 C.F.R. § 20.901. 66 Fed. Reg. 38,158 (July 23, 2001). Paragraph (a) of 38 C.F.R. § 20.901 was amended to read as follows: Opinion from the Veterans Health Administration. The Board may obtain a medical opinion from an appropriate health care professional in the Veterans Health Administration of the Department of Veterans Affairs on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal. 38 C.F.R. § 20.901(a). According to the Supplementary Information in 66 Fed. Reg. 38,158 (July 23, 2001), this provision had always been intended to reflect that the Board may obtain medical opinions from appropriate health care professionals in VHA (Veterans Health Administration). However, there had been some confusion as to whether this provision permitted the Board to obtain a medical opinion from an individual in VHA other than the Under Secretary for Health (previously the Chief Medical Director). The amendment to 38 C.F.R. § 20.901(a) deletes references to "Chief Medical Director" and clarifies that the Board may obtain medical opinions from appropriate health care professionals in VHA. 38 C.F.R. § 20.901(a); see Supplementary Information, 66 Fed. Reg. 38,158 (July 23, 2001). The Board finds that three issued posed by the Court in its August 2000 Order are adequately answered by the various amendments noted above. First, the plain language of the current version of 38 C.F.R. § 20.901(a) indicates that the Board may obtain a medical opinion from an appropriate VHA health care professional in VA. Although the amendments to this regulation were not in effect at the time that the Board sought a VHA opinion in this case, the Supplementary Information in 66 Fed. Reg. 38,158 (July 23, 2001) makes it clear that 38 C.F.R. § 20.901(a) "has always been intended to reflect that the Board may obtain medical opinions from appropriate health care professionals in VHA," and that the purpose of the amendment to 38 C.F.R. § 20.901(a) was simply to clarify this point. This answers both the Court's first and second questions as to which VA employees may render medical opinions for the Board. In regard to the Court's third issue (pertaining to VHA Directive 10-95-040), as already discussed, that Directive was replaced by VHA Directive 2000-049, which essentially affirmed and reissued the content of VHA Directive 10-95-040. These Directives are consistent with the purpose of 38 C.F.R. § 20.901(a), both currently and prior to the July 2001 amendments. As noted in the Supplementary Information to in 66 Fed. Reg. 38,158 (July 23, 2001), the Board has been using VHA medical opinions under 38 C.F.R. § 20.901(a) for many years. This process has been memorialized in a VHA "Directive" since 1995. The advisory opinions from VHA physicians have been typically provided in a much more timely fashion than those obtained from non-VA physicians, and have been responsive to the questions asked by the Board. The amendments to 38 C.F.R. Part 2 and 38 C.F.R. § 20.901(a), and the issuance of VHA Directive 2000-049, support the conclusion that the Board currently has the authority to request advisory opinions from appropriate medical professionals from VHA, and that the Board had this authority in 1999, when a VHA opinion was requested in this case. Having addressed the issues presented by the Court in the August 2000 Order, the Board will now proceed with the merits of this appeal. Initially, as noted in the Introduction to this decision, this matter was remanded by the Board in November 2001 for additional development. The Board satisfied that the development requested in that remand was completed. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the veteran the right to compliance with the remand orders). The Veterans Claims Assistance Act of 2000 (VCAA) was enacted during the pendency of this appeal, on November 9, 2000. Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002). Among other things, the VCAA amended 38 U.S.C.A. § 5103 to clarify VA's duty to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. Under 38 U.S.C.A. § 5103A, the VCAA codified VA's duty to assist, and provides that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Implementing regulations for the VCAA are found, in part, at 38 C.F.R. § 3.159. The United States Court of Appeals for Veterans Claims has interpreted the VCAA to require VA to inform a claimant of what type of evidence is needed to substantiate his claim on appeal, including what evidence he should provide and what evidence VA would assist him in obtaining. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently issued a decision in response to a challenge to the validity of various regulations promulgated by VA to implement the VCAA, including 38 C.F.R. § 3.159. Paralyzed Veterans of America. v. Principi, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003) (PVA decision). In that decision, the Federal Circuit Court held that 38 C.F.R. § 3.159(b)(1) is inconsistent with 38 U.S.C.A. § 5103(b)(1), to the extent that it permits VA to decide a claim after 30 days of providing VCAA notice, and prior to the expiration of the one-year time period set forth in 38 U.S.C.A. § 5103(b)(1). As authority for its decision, the Federal Circuit Court cited to Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (DAV decision), in which the court addressed a challenge to a regulation that governed the Board's authority to provide VCAA notice, and which provided the appellant with not less than 30 days to respond to the notice. See 38 C.F.R. § 19.9(a)(2)(ii). In that case, the Federal Circuit Court "determined that the challenged regulation's misleading characterization of the law may lead unsuspecting claimants to believe that they must provide the requested information or evidence within thirty days, even though § 5103(b)(1) unequivocally provides a claimant one year to submit evidence." DAV, 327 F.3d. at 1348. In the present case, by letter dated in December 2001, the RO notified the veteran of the VCAA, and provided him with a detailed list of evidence already received in support of his claim. The letter asked the veteran to inform them of any additional evidence he wanted the RO to consider regarding his appeal. The letter also requested that the veteran complete authorization forms if he wanted VA to assist him in requesting treatment records from private doctors or hospitals. In conclusion, the letter stated the following: If we don't hear from you within 60 days, we will continue processing your remand in accordance with BVA guidelines. However, if you do not have any additional evidence to submit to our office, you may tell us and ask us to waive the 60-day period that we have allowed for you to send evidence. Although the foregoing language is arguably inconsistent with the requirements of 38 U.S.C.A. § 5103(b)(1), in that it does not expressly inform the veteran that he had one year from the date of that letter to submit certain information or evidence, see PVA, supra, the Board finds that there is no prejudice to the veteran in proceeding with this appeal for the following reasons. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (when the Board addresses a matter not addressed by the RO, the Board must provide an adequate statement of reasons and bases as to why there is not prejudice to the appellant). First, although the letter requested that the veteran respond within 60 days, the letter did not limit the response period - rather, the letter indicated that after 60 days the RO would continue processing his appeal. Second, several years have passed since that letter was mailed and there is no indication in the record that the veteran refrained from submitting information or evidence in his appeal following 60 days from the date of the VCAA letter. In fact, the record reveals that the veteran continued to submit evidence in his appeal, particularly as demonstrated by the evidence submitted in October 2002, which is discussed briefly at the beginning of this decision. Third, the parties' Joint Motion, filed in June 2003, is entirely silent as to the VCAA. There are no allegations in that motion that there were defects in notice or duty to assist in this appeal. Although that motion was filed prior to the PVA decision, it appears clear that the veteran has no further information or evidence that he would like to submit in this case. In that regard, in September 2003, the Board sent the veteran and his representative a letter informing him that the case had been remanded by the Court, and that they had 90 days from the date of that letter to submit any additional argument or evidence that they wanted considered in the appeal. Within four days of the date of that letter, a response was received from the veteran's representative indicating that the veteran did not have anything else to submit. Moreover, it was requested that the Board proceed immediately with the readjudication of this appeal. In addition to the foregoing, by rating decisions dated in September 1995, a statement of the case (SOC) issued in May 1996, and numerous SSOCs in the record, the veteran was informed of the laws and regulations governing service connection, including secondary service connection. Additionally, although the Court vacated the August 1997, April 1999, and March 2003 Board decisions, those decisions remain a matter of record, and were provided to the veteran. The Board's recitation of the laws and regulations pertaining to service connection in those decisions is correct, and has not changed. In short, the Board is satisfied that the veteran was put on notice as to the evidence needed to substantiate his claim, including what evidence he should supply, and what evidence VA would assist in obtaining. See 38 U.S.C.A. § 5103. Thus, there is no reason to further delay this appeal by remanding it back to the agency of original jurisdiction to provide the veteran with new VCAA notice. See Soyini v Derwinski, 1 Vet. App. 540, 546 (1991)(strict adherence to requirements in the 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); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA also has a duty under the VCAA to assist claimants in obtaining evidence necessary to substantiate a claim for benefits. 38 U.S.C.A. § 5103A. Throughout this appeal, VA has assisted the veteran in obtaining relevant evidence. The record contains the veteran's service medical records, private treatment records, and VA clinical records. Two medical expert opinions were obtained in this case, which are discussed in more detail in the decision below. The veteran was offered an opportunity to appear personally at a hearing, but he declined that opportunity. As is clearly documented in the record, attempts have been made to secure all relevant records identified by the veteran, and the Board is unaware of any additional evidence that should be obtained prior to proceeding with this appeal. In fact, as noted earlier in this decision, in a response from the veteran's representative received in September 2003, he indicated that the appellant had nothing further to submit in this case. In short, the Board finds that the duty to assist the veteran was satisfied, and the case is ready for appellate review. 38 U.S.C.A. § 5103A. Service connection will be granted if it is shown that the veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in the line of duty, in active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Where the determinative issue in a service connection claim involves a medical diagnosis, competent medical evidence is required. This burden cannot be met by lay testimony because lay persons are not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The veteran maintains that he developed CAD as a result of his service-connected PTSD. He does not contend that his CAD began in service, or is directly related to his active service. Rather, he has limited his arguments to principles of secondary service connection. As such, the Board will analyze the veteran's claim on that basis. The veteran's service medical records are negative for any evidence of CAD or a cardiovascular disorder. Following service separation in March 1977, a May 1977 VA examination report indicates that the veteran's cardiovascular system was normal. His blood pressure was 110/72. In January 1989, the veteran was admitted to a VA hospital with complaints of chest pain. It was noted that there was no previous history of chest pain or heart disease. The final diagnosis was acute myocardial infarction. He was discharged in early February 1989. In March 1989, the veteran was readmitted to a VA hospital with complaints of increased daily chest pain for the prior week. He was diagnosed with unstable angina, and transferred for immediate catheterization. A stress and redistribution thallium test revealed an abnormal baseline, a small area of inferoapical ischemia, and a small to moderate area of high septal ischemia. A March 1989 VA transfer summary contains a primary diagnosis of CAD, with a secondary diagnosis of hypercholesterolemia. It was noted that the veteran had a history of tobacco abuse, as well as a strong family history of CAD, with his father dying at age 56 from a myocardial infarction (MI) and his sister dying at age 47 from an MI. In July 1989, the veteran was admitted to a VA hospital with an admission diagnosis of unstable angina. The examiner noted that the veteran's cardiac history dated to January 1989, at which time he experienced a non-Q wave MI without complication. The examiner also noted that the veteran had a "family history of tobacco use and risk factors for [CAD]." The discharge diagnoses included unstable angina, two vessel CAD, renal insufficiency, and tobacco abuse. A December 1989 VA hospital report indicates that the veteran presented to the Hampton VA medical center in early December, with complaints of left-sided "throbbing/pressure" pain, which was associated with shortness of breath and dizziness. The admitting diagnosis was unstable angina. The veteran was transferred to a VA hospital in Richmond for catheterization and an angioplasty. He was transferred back to the Hampton VA medical center, and the final diagnosis was CAD, status post percutaneous transluminal coronary angioplasty. A June 1990 VA outpatient treatment record notes that the veteran continued to have anginal pain, substernal in nature. The impression was stable angina. A March 1991 stress and redistribution thallium revealed an abnormal baseline and a small amount of posterolateral ischemia. An August 1992 VA record contains an impression of minimal ischemia, based on the results of a dipyridamole and redistribution thallium test conducted in May 1992. An August 1994 VA examination for miscellaneous neurological disorders noted a history of MI and cardiac angioplasty, but cardiovascular examination revealed regular rate and rhythm, without gallops, murmurs, or rubs. A VA outpatient treatment record dated in May 1995, reflects that the veteran was seen with complaints of increased chest pain over the last three weeks. He noted a relationship with his PTSD sessions. He also noted the same chest pain with walking. The examiner's impression was increased angina associated with increased stress. Later that same month, the veteran was seen with complaints of running a temperature, sweating, and aching all over. The assessment included CAD and PTSD. An August 1995 VA progress note reflects a diagnosis of PTSD. In August 1995, the veteran filed a claim for service connection for PTSD, as well as a claim for service connection for CAD secondary to PTSD. In a September 1995 rating decision, service connection for PTSD was awarded, and a 10 percent disability rating was assigned. The RO denied service connection for CAD as secondary to PTSD, which the veteran appealed. A November 1995 private medical statement from Dr. Ridley indicates that the veteran was admitted to Sentara Hampton General Hospital earlier that month, and diagnosed with an acute non Q-wave MI, which resolved with medication. The hospitalization records were attached, which include a finding of significant atherosclerotic CAD. In June 1996, a handwritten, undated, letter was received from a VA staff physician at the VA medical center in Hampton, Dr. Maturi. She described the veteran's cardiac history, and noted that he served in Vietnam prior to the cardiac conditions. She also noted that in 1995, he was diagnosed with PTSD based on his Vietnam service. She stated: "It is well known that stress is a critical element in the development of atherosclerotic heart disease." She opined: "It is my medical opinion that a significant part of his cardiac condition is service connected." In February 1999, the Board referred this issue for a medical expert opinion, pursuant to VHA Directive 10-95-040. 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901. The Board asked the following: What is the medical etiology of the veteran's heart disease, and what is the medical likelihood that his service- connected PTSD caused or permanently worsened his heart disease? If you find that PTSD permanently worsened the heart disease, please fully describe the increment of additional heart disability which you attribute to PTSD. In March 1999, a response was received from Dr. Sedlis, Chief of Cardiology at the VA medical center in New York, who indicated that he had reviewed the veteran's case, including the hospitalization reports and the reports of cardiac catheterization, and concluded that the veteran's CAD is not related to his PTSD. As reasons for his conclusion, the physician noted that the veteran has multiple risk factors for CAD, including a strong family history of CAD, as well as hypocholesterolemia and smoking. He pointed out that the veteran had an inferior wall myocardial infarction in 1989, which was six years before there was any mention of PTSD in the medical record. He opined that the "natural history of such diffuse coronary artery disease is progression of lesion severity leading to subsequent myocardial infarction and deterioration of ventricular function." He stated that the "likelihood of disease progression is increased by smoking." He further stated that "[t]his is in fact the course of this veteran's disease which is entirely explained by the known risk factors and is not likely to have been significantly altered by the development of PTSD in 1995." He concluded that "the cause of the veteran's coronary artery disease is atherosclerosis secondary to hyperlipidemia and smoking." He stated that there was "no evidence that PTSD either caused or permanently worsened the heart disease." In August 1997, Dr. Maturi submitted a typed statement, which is duplicative of her handwritten statement submitted in June 1996. A February 1997 VA hospitalization report reflects that the veteran underwent a dobutamine stress echocardiogram and a cardiac catheterization. The veteran's medical history was summarized, and it was noted that the veteran admitted to smoking one pack of cigarettes per day and had a strong family history of CAD. The discharge diagnosis was non Q- wave MI, and post MI angina. Significant CAD was revealed on the cardiac catheterization. An April 1999 VA outpatient treatment record, signed by a Dr. Hankins, indicates that the veteran was being followed in the clinic for combat-related PTSD, and was seen to clarify elements of his medical record regarding the onset of his PTSD symptoms. She noted that the veteran's initial consult for PTSD was dated in February 1995. She opined that "[t]hough the veteran had never sought treatment prior to 1995 or had been diagnosed with PTSD, by clinical history, the onset of the illness dates back to 1968 and the condition has persisted for the past 30 years." In February 2001, the veteran's representative submitted two additional medical reports in support of the veteran's claim. A January 2001 report from Dr. Bash, a neuro- radiologist, sets forth a list of documents that he had reviewed from the veteran's claims file, including service medical records, VA medical records, and physician statements. Dr. Bash opined that the veteran's CAD/MI "was likely made worse by his longstanding PTSD ... based on [the veteran's] medical record and literature references ..." Dr. Bash indicated that he did not examine the veteran. The veteran's representative also submitted a May 1999 statement from Dr. Maturi. The statement indicated that although the veteran had three risk factors for CAD, consisting of smoking, a family history of heart disease, and hyperlipidemia, his PTSD was "a significant fourth factor in the development of his current disabling CAD, beginning in 1968." In May 2001, the Board sought an independent medical expert opinion on this issue. The Board asked the following question: What is the medical etiology of the veteran's heart disease? What is the medical likelihood that his service- connected PTSD caused or permanently worsened his heart disease (i.e., is there a cause-and-effect relationship)? If you find that PTSD permanently worsened (i.e., aggravated) the heart disease, please fully describe the increment of additional heart disability which you attribute to PTSD as opposed to other factors. In June 2001, a response was received from Dr. Freeman, the Chief of Cardiology, at the University of Texas Health Science Center at San Antonio, who indicated that he had reviewed the veteran's medical records, and concluded that there was no causal relationship between the veteran's heart disease and his service-connected PTSD. He based his opinion on the fact that CAD first manifest in 1989, while there was no evidence of a psychiatric disorder until six years later, in 1995. In light of the veteran's history of cigarette smoking and a strong family history of CAD, the physician believed that "it is more likely than not that [the veteran's] heart problems occurred independently of his PTSD." The independent medical expert indicated that there was little evidence in medical literature linking PTSD and heart disease, but even if there was such evidence, the veteran's risk factors "would make it impossible to conclude that the PTSD played any primary role, and it is more likely that his heart disease would have manifest regardless of the PTSD, even had it manifest before, not after the heart condition." A July 2001 statement from Dr. Maturi indicates that although the veteran's PTSD was not diagnosed until 1995, it was the result of his involvement in the Vietnam war, and thus, was most likely present from 1969 onward. The examiner further stated that "[a]lthough [the veteran] had two other risk factors, this certainly would be considered an additional etiologic agent for his exacerbation of coronary artery disease." As noted earlier in this decision, in November 2001, the Board remanded this matter back to the RO for compliance with the VCAA, and for issuance of a SSOC that considered all new evidence. The RO issued its VCAA letter in December 2001 and a SSOC in February 2002. After the Board's remand, additional VA treatment records were associated with the veteran's claims file from VA medical centers in Richmond and Hampton, Virginia. Those records are dated from May 1996 to March 2002, and include some copies of records already contained in the claims file. There is also an October 2002 VA examination report for PTSD. Collectively, the additional VA medical evidence reflects continued treatment for heart disease and PTSD, as well as other disabilities unrelated to the issue on appeal. Most recently, as noted at the beginning of this decision, additional private medical statements and medical treatise information were received at the Board in October 2002. That evidence consists of the following: a September 2002 statement from Ms. Baker, R.N., with an attached 1999 medical article; a duplicate copy of Dr. Bash's January 2001 statement; and an October 2002 statement from Dr. Bash, with attached medical articles. The September 2002 statement from Ms. Baker indicates that she had reviewed the veteran's claims folder "for the purpose of medical research and evaluation." She enclosed a 1999 article from "The Society of Behavioral Medicine," entitled "Electrocardiogram Abnormalities Among Men with Stress-Related Psychiatric Disorders: Implications for Coronary Heart Disease and Clinical Research." She stated that findings from the study suggest an association between long-term exposure to severe psychological stress in Vietnam veterans and electrocardiogram findings that are physiological markers for coronary artery disease. She further stated that although the veteran's PTSD was only diagnosed in 1995, the report from Dr. Hankins (the VA statement dated in April 1999), as well as the veteran's personal accounts, indicates that it has been a progressively worsening condition since 1968. Ms. Baker stated that "[a]ccording to the studies she cited this would greatly increase his risk for Coronary Artery Disease, (CAD)." She referenced Dr. Sedlis' comments that the veteran's CAD was partially caused by his smoking history, but she pointed out that smoking was adjusted for in the studies and was not found to have any significant correlation. She concluded that the veteran fell into the class of veterans discussed in this study, and that PTSD should therefore be considered a risk factor in his CAD. Dr. Bash's October 2002 statement also referenced some medical literature in support of his opinion, and he commented on why he disagreed with the opinions of Drs. Freeman and Sedlis. Specifically, Dr. Bash attached four medical articles: "Terror Strikes the Heart - September 11, 2001," by Thomas G. Pickering, MD, DPhil (Jan./Feb. 2002); "Ambulatory Cardiovascular Activity in Vietnam Combat Veterans with and without Posttraumatic Stress Disorder," by J.C. Beckham (Apr. 2000); "Posttraumatic Stress Disorder, Exposure to Combat, and Lower Plasma Cortisol Among Vietnam Veterans' Findings and Clinical Implications," by J.A. Boscarino (Feb. 1999); and a February 1999 statement from a VA staff psychiatrist, Dr. Schwartz. Dr. Bash stated that he had reviewed the veteran's claims folder and medical records for the purpose of making a medical opinion concerning his hypertension and CAD. In summary, his impression was as follows: After reviewing the new literature since my last opinion and the opinions of Drs. Freeman and Sedlis it is my opinion, to a reasonable degree of medical certainness, that the literature predominately supports an association between PTSD and increased blood pressure, and it is my opinion that [the veteran's] PTSD contributed significantly to his CAD/Myocardial infarction by of [sic] PTSD related hypertension. This opinion is supported by the opinion of Drs. Maturi and Schwartz. Dr. Bash disagreed with Dr. Freeman's opinion for several reasons. First, in response to Dr. Freeman's statement that there was no evidence of a psychiatric disorder until 1995, Dr. Bash stated that Dr. Freeman failed to consider the time course for the veteran's PTSD. He cited the VA opinions by Drs. Maturi and Hankins, and noted that Dr. Hankins reported that the onset of the veteran's PTSD was in 1968. Second, Dr. Bash criticized Dr. Freeman for not providing any literature to support his opinion that PTSD does not contribute to high blood pressure. Third, Dr. Bash stated that Dr. Freeman in 1999 did not have access to the most recent literature that states that PTSD may lead to an increased incidence of hypertension. (Dr. Bash cites the Pickering article as support). Dr. Bash also noted that he does not deny that smoking or family history may have an effect on the development of CAD. Dr. Bash criticized Dr. Sedlis' opinion for similar reasons. First, Dr. Bash stated that Dr. Sedlis, like Dr. Freeman, failed to consider the time course of the veteran's PTSD, particularly in light of the VA opinions that noted that the veteran's PTSD dated back to his time in service. Second, Dr. Bash stated that Dr. Sedlis did not provide any literature to support his opinion that PTSD does not contribute to high blood pressure. Third, Dr. Bash stated that Dr. Sedlis in 1999 did not have access to the most recent medical literature that suggests that PTSD would lead to an increased incidence of hypertension. Dr. Bash stated that a "review of the medical literature on the subject of PTSD causing hypertension or coronary artery disease reveals several articles on both sides of the fence." Nevertheless, in conclusion he repeated the statement that is quoted above (set forth in the indented paragraph), in which he opines that the veteran's PTSD contributed significantly to his CAD. The Board has carefully reviewed all the medical evidence in this case, but concludes that the preponderance of the evidence is against a claim for service connection for CAD as secondary to PTSD, for reasons explained below. The record indicates that the veteran's first signs of heart disease appeared in January 1989, and the first actual diagnosis of PTSD was in 1995. There is no showing that heart disease was present in service or for many years thereafter. There are medical opinions both for and against the veteran's claim that his CAD is proximately due to or aggravated by his service-connected PTSD. The medical opinions supporting the veteran's claim are contained in four statements from a VA staff physician, Dr. Maturi, who examined and treated the veteran, two statements from a private neuro-radiologist, Dr. Bash, who reviewed the veteran's file and submitted statements upon request by the veteran's representative, and a statement from a private registered nurse, Ms. Baker, who also submitted a statement upon request by the veteran's representative. The statements weighing against the veteran's claim were rendered by Dr. Sedlis, the Chief of Cardiology at the VA medical center in New York, and Dr. Freeman, the Chief of Cardiology at the University of Texas Health Science Center. As noted above, there are four statements from Dr. Maturi, the VA staff physician. The first two statements (a handwritten statement received in June 1996, and a duplicative typed statement dated in August 1997) are identical in content and indicate that it is "well known" that stress is a critical element in the development of heart disease. The physician opines, "a significant part of [the veteran's] cardiac condition is service connected." The third statement, dated in May 1999, acknowledges the veteran's risk factors for CAD, including smoking, family history, and hyperlipidemia, but adds that PTSD was "a significant fourth factor" in developing CAD. The fourth statement, dated in July 2001, indicates that although the veteran's PTSD was not diagnosed until 1995, it was the result of his Vietnam service and therefore was most likely present from 1969 onward and that, although other risk factors are present, PTSD certainly was "an etiologic agent for his exacerbation of CAD." Dr. Bash, in his January 2001 statement, identifies himself as a neuro-radiologist who rendered an opinion at the request of the veteran's representative. Dr. Bash concludes that the veteran's CAD/MI was "likely" made worse by his longstanding PTSD. He indicates that he reviewed the records and relied on his research into the medical literature to support his conclusion. Dr. Bash cites a medical article entitled, "Life event stress and Myocardial reinfarction: a prospective study," dated in 1994. He provides the following excerpt from this article in support of his conclusion, "[t]his three year prospective study . . . reveals significant independent associations between acute Myocardial infarction (AMI) . . . and risk of recurrent AMI and death." The other quoted study, apparently from a psychiatric or psychology journal, dated in 1981, states the "Type A behavior pattern has been associated with the onset of myocardial infarction. . ." In her September 2002 statement, Ms. Baker, a registered nurse, cited to a 1999 article that she felt suggested an association between long-term exposure to severe psychological stress in Vietnam veterans and electrocardiogram findings that are markers for CAD. She relied on the April 1999 VA medical statement from Dr. Hankins, as well as the veteran's own personal accounts, to demonstrate that the veteran's PTSD had been progressively worsening since 1968. She also indicated that smoking was accounted for in the study she cited, and was not found to have any significant correlation. As such, she concluded that PTSD should be considered a risk factor for the veteran's CAD. In his October 2002 statement, Dr. Bash criticized the opinions of both Drs. Sedlis and Freeman for essentially the same reasons. First, he argued that the doctors failed to consider the time course for the veteran's PTSD, which Dr. Hankins at the VA reported an onset dating back to 1968. Second, he criticized the doctors for not providing any medical literature to support their opinions. Third, he stated that the doctors back in 1999 did not have access to the most recent literature that suggests that PTSD leads to an increased incidence of hypertension. In conclusion, Dr. Bash opined that the medical literature supports an association between PTSD and increased blood pressure, and that the veteran's PTSD contributed "significantly" to his CAD/MI. He pointed out that this conclusion was supported by Drs. Maturi and Schwartz. The medical evidence weighing against the veteran's claim includes two medical expert opinions, both by Chiefs of Cardiology, one from a VA medical center and the other from an independent medical expert at a leading university, which was obtained by the Board pursuant to 38 U.S.C.A. § 7109, 38 C.F.R. § 20.901(d). The first medical expert opinion, from Dr. Sedlis, the Chief of Cardiology at the VAMC in New York, reflects that the physician reviewed the veteran's medical records and concluded that the veteran's CAD was caused by atherosclerosis secondary to hyperlipidemia and smoking. He found no evidence that PTSD either caused or worsened the veteran's heart disease. A second medical expert opinion, from Dr. Freeman, the Chief of Cardiology at the University of Texas Health Science Center, concludes that there is no relationship between the veteran's heart disease and his PTSD. Rather, the physician attributed the veteran's heart disease to his history of cigarette smoking and his strong family history of heart disease. He stated that it was more likely that the veteran's CAD occurred independently of his PSTD. The Board's responsibility is to assess the credibility and weight given to the evidence. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board may also rely on a particular medical expert's opinion as satisfying the statutory requirement of an adequate statement of reasons or bases where the expert has given fair consideration to the material evidence that appears to support the appellant's contentions. Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). In the present case, the Board finds that the opinions from the two Chiefs of Cardiology are more probative than the opinions provided by the VA staff physician, the private neuro-radiologist, and the registered nurse. They are accorded more weight for several reasons. First, it is noted that they answered the specific questions posed to them and supported their opinions by clinical findings in the record. It is also apparent that each doctor reviewed the veteran's medical history before reaching his conclusions. For example, the Chief of Cardiology from the VA medical center in New York discussed the history of the veteran's heart disease, and commented on the progression of heart disease, including the increased effects of such progression when combined with risk factors such as smoking. Similarly, the Chief of Cardiology at the University of Texas Health Science Center discussed the veteran's medical history, as well as medical literature, in reaching his conclusion. Second, both are specialists in the field of cardiology, and as Chiefs of Cardiology, have oversight responsibility over the cardiology departments at major hospitals. The Board believes that physicians with this degree of expertise and responsibility are more likely to be well informed as to the state of medical knowledge regarding whether there is a relationship between PTSD and the development or aggravation of heart disease and have a high degree of expertise in evaluating the particular facts of this case from their review of the record. Conversely, the VA treating physician, the private neuro-radiologist, and the nurse are not shown to have similar specialized expertise in the relevant field of medicine. In fact, the neuro-radiologist and the nurse based their opinions largely on medical literature rather than on their own expertise in the field. Third, the two cardiologists' opinions are mutually consistent in attributing the veteran's CAD to risk factors such as smoking, a strong family history of heart disease and hyperlipidemia and in concluding that the veteran's PTSD played no significant role in the development of CAD. Each point out that the veteran's heart disease was medically diagnosed years before there was any indication that the veteran had PTSD. One of the cardiologists points out that even if PTSD was present before CAD, it would be impossible to conclude that the PTSD played a primary role in the veteran's heart disease due to his strong risk factors. Moreover, the cardiologist's opinions are consistent with those of the VA staff physician and the private neuro- radiologist to the extent that all recognize that factors other than PTSD played a role in causing or exacerbating the veteran's heart disease. In contrast, the Board finds that the statements from the VA staff physician, the registered nurse, and the private neuro-radiologist, are less than persuasive. In her first two statements, the VA staff physician's stated reason for attributing the veteran's heart disease to service is simply that it is "well known" that stress contributes to cause heart disease. These statements offer a bare conclusion as to proximate causation and make no mention of the other risk factors present in this case for the development of CAD. The third statement acknowledges the risk factors noted by the two cardiologists, but again asserts, without explanation, that PTSD was another factor in the development of the veteran's heart disease. Although Dr. Maturi indicated in her third and fourth statements that the veteran's PTSD was present since service, the only evidence of record establishing the presence of PTSD prior to 1995 is the April 1999 VA opinion from Dr. Hankins, who places the onset of the veteran's PTSD back to 1968, but does not provide any supporting clinical findings for that conclusion. Finally, in her fourth statement, Dr. Maturi opines that PTSD exacerbated the veteran's CAD, in contrast to her earlier statements indicate that she believed that the psychiatric disorder was a factor in causing the heart disease. As to the September 2002 statement from the private registered nurse, she relies heavily on a medical article as the basis for her opinion. She finds that the veteran falls into the class of veterans discussed in the study, and as such, she concludes that PTSD should be considered a risk factor in his CAD. While medical articles or treatise information can provide important support to a claim when combined with the opinion of a medical professional, see Sacks v. West, 11 Vet. App. 314, 317 (1998), such evidence merely renders a claim plausible or possible, but does not necessarily prove the claim. See Wallin v. West, 11 Vet. App. 509, 514 (1998). In the present case, the nurse's references to the medical article, along with her commentary, render the veteran's claim plausible, but the Board is not persuaded by her opinion for several reasons. First, she relies on the article as the primary basis for her opinion, but only points to scant clinical findings in the record as support. Second, although the record is negative for any evidence of PTSD prior to 1995, she relies on the conclusory statement from the VA doctor dated in April 1999, in which the onset of the veteran's PTSD was placed as 1968. Even accepting that statement, the nurse fails to account for the veteran's longstanding documented history of CAD, and his strong family history of heart disease. As to the veteran's smoking history, the nurse notes that the article adjusted for smoking, but she does not provide any details on that point. The Board's review of the article indicates that cigarette smoking was a controlled variable in the study, but it is not clear from the study how this was factored or whether the participants in the study had a smoking history similar to the veteran. Nor does the study appear to list family history as a variable. In short, the Board is not persuaded by the article or the nurse's reliance on the article regarding the veteran's CAD, and the Board accords more weight to the opinions rendered by the two cardiologists in this case, both experts in the field, who as discussed, place more emphasis on the veteran's risk factors as the cause of his CAD. The Board has given careful consideration to the neuro- radiologist's opinions, but finds they are outweighed by the opinions rendered by the Chiefs of Cardiology for the following reasons. First, in regard to Dr. Bash's January 2001 opinion, the Board notes that the medical literature that he refers to and apparently relied upon in formulating that opinion are articles published in 1994 and 1981, as well as a 1997 cardiology text. He states both that the veteran's heart disease was "made worse" by his PTSD and that the PTSD "contributed directly to his CAD/MI." Although Dr. Bash references more recent medical articles in his October 2002 statement, he seems to place a great deal of reliance on those articles as the primary basis for his opinion that the veteran's PTSD caused his CAD, rather than any independent medical expertise. The Board has reviewed the articles and statements attached to Dr. Bash's October 2002 statement and initially notes that the statement from Dr. Schwartz appears specific to another veteran's claim. Although Dr. Schwartz provides some generalized references to other medical treatises, his opinion was formed specifically for a case other than the present case. The article excerpt dated in 1996 suggests a relationship between PTSD and plasma cortisol, and the article abstract dated in 2000 investigates the relationship between PTSD and cardiovascular activities. Both of these articles offer only tangential information as to a relationship between PTSD and heart disease. Significantly, the most recent article cited by Dr. Bash, published in 2002, concludes that it might be "expected that PTSD would lead to an increased incidence of hypertension, and possibly even coronary artery heart disease, but examination of the published literature on this subject is disappointing." The article continues that there is "at least one report of an increased prevalence of hypertension in PTSD patients, but whether this is independent of other risk factors is not clear." Thus, although Dr. Bash relied on this article as support for his opinion, it actually seems to weaken his opinion. Similar to the nurse and to the VA staff physician, Dr. Bash points to the April 1999 VA clinical record as support that the veteran's PTSD was manifested since 1968. While the Board does not question the validity of the April 1999 opinion, Dr. Bash, like the nurse, does not account for the overwhelming medical evidence in the file documenting the veteran's strong personal history of heart disease, as well as his family history of heart disease and his history of cigarette smoking. Nor does Dr. Bash comment on the absence of clinical evidence in the file of PTSD prior to 1995. Dr. Bash acknowledges in his October 2002 statement that he does not deny the fact that smoking and family history have an effect on the development of CAD. Nevertheless, he contends that family history and smoking do not negate or neutralize the effect of PTSD. Yet, as support for his findings, Dr. Bash only cites to medical literature, which, as discussed above, the Board finds less than persuasive in this case. Dr. Bash criticizes the two cardiologists' opinions because they did not provide any medical literature to support their opinions, and because in 1999 they did not have access to the more recent medical literature. The Board notes that although the cardiologists did not cite to any specific medical treatises, Dr. Freeman did make a general reference to medical literature in his statement. Specifically, he stated that there was little evidence in medical literature linking PTSD and heart disease, but that even if there was such evidence, the veteran's risk factors "would make it impossible to conclude that the PTSD played any primary role, and it is more likely that the heart disease would have manifest regardless of the PTSD, even had it manifest before, not after the heart condition." In other words, Dr. Freeman concluded that even if the veteran's PTSD had manifested before his heart disease, and even if there were medical literature linking PTSD and heart disease, in his opinion, the heart disease still would have manifested independently of PTSD, due to the veteran's risk factors. Dr. Sedlis also places significant weight on the veteran's risk factors, as well as the normal progression of CAD. As noted above, the Board concludes the two Chiefs of Cardiology are more likely to be better informed than a neuro-radiologist as to the current state of medical knowledge regarding whether there is a relationship between PTSD and the development or aggravation of heart disease. Moreover, they have a higher degree of expertise in evaluating the particular facts of this case from their review of the record. See Guerrieri, supra. The Board also note that both cardiologists expressed essentially similar opinions and that one of these cardiologists, unlike Dr. Bash and the nurse, is an independent medical expert. The Board acknowledges the veteran's statements wherein he maintains that the stress and symptoms attributable to his service-connected PTSD contributed to his CAD. However, as a layperson with no apparent medical expertise or training, the veteran is not competent to provide a medical diagnosis or an opinion as to medical causation. See Espiritu, 2 Vet. App. at 494-95 (laypersons may be competent to provide an "eye-witness account of a veteran's visible symptoms," but they are not capable of offering evidence that requires medical knowledge). Rather, medical evidence on this point is needed. In the present case, there is probative medical evidence indicating that the veteran's CAD developed independently of his service-connected PTSD. As explained above, despite the evidence supporting the veteran's claim, the Board is more persuaded by the opinions provided by the Chiefs of Cardiology, and as such, the evidence does not support the veteran's claim for service connection. Accordingly, the Board finds that the preponderance of the evidence is against a finding that CAD is proximately due to service-connected PTSD. As to this material issue, the record does not present an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to a reasonable doubt in favor of the veteran. Thus, the provisions of 38 U.S.C.A. § 5107(b) are inapplicable, and the appeal is denied. See Ferguson v. Principi, 273 F.3d 1072 (Fed. Cir. 2001) (38 U.S.C.A. § 5107(b) only requires that the Board (Continued on the next page) consider all the evidence and material of record; the benefit-of-the-doubt provision only applies where there is an approximate balance of positive and negative evidence). ORDER Service connection for CAD, as secondary to service- connected PTSD, is denied. ____________________________________________ STEVEN L. KELLER 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