Citation Nr: 0332537 Decision Date: 11/21/03 Archive Date: 12/01/03 DOCKET NO. 02-03 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for major depression. 3. Entitlement to service connection for mixed personality disorder. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carol L. Eckart INTRODUCTION The veteran served on active duty from May 1982 to March 1985. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of April 2001 from the Regional Office (RO) of the Department of Veterans Affairs (VA), in San Diego, California. The RO denied entitlement to service connection for PTSD, major depression, mixed personality disorder, and bilateral hearing loss. The issues of entitlement to service connection for PTSD, major depression and mixed personality disorder are addressed in the remand portion of this decision. The veteran has raised a claim of entitlement to nonservice connected pension. This matter is referred to the Veterans Benefits Administration Appeals Management Center (VBA AMC) for further consideration. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. A chronic acquired hearing loss of either ear was not shown in active service; nor was sensorineural hearing loss of either ear demonstrated to a compensable degree during the first post service year. 3. A chronic acquired hearing loss of either ear is not shown post service. 4. The probative and competent medical evidence of record establishes that the veteran does not have bilateral hearing loss which has been related to service on any basis. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service; nor may service connection be presumed for organic disease of the nervous system (sensorineural hearing loss). 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background A November 1981 recruit training reference audiogram reveals pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT Not done 5 0 0 -5 LEFT Not done 5 -5 0 5 On the May 1982 entrance examination's evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 10 5 0 0 10 Service medical records reflect normal hearing throughout service. There were normal findings on ear, nose and throat examination revealed in September 1982, when he was examined for submarine escape training and pressure testing. The September 1982 submarine examination's audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 5 LEFT 15 10 5 0 5 On the hearing conservation evaluation in June 1984 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT Not done 5 -5 0 10 LEFT Not done 10 5 -10 10 Speech recognition ability testing was not done. In July 1984, no detectable ear pathology requiring medical treatment was found on examination. On the March 1985 separation examination's audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 5 LEFT 15 10 5 0 5 The veteran submitted no records showing any evidence of a hearing loss occurring within one year of his discharge from service in March 1985. The report of a January 2000 VA audiological evaluation reflects complaints by the veteran of some difficulty understanding speech with a lot of background noise. He was also concerned about difficulty remembering things told to him. He was noted to work around construction and welding. He also reported some aural fullness at times. He reported no ear drainage, tinnitus or otalgia. The results of thresholds to puretones were obtained and revealed essentially normal hearing sensitivity at all frequencies in both ears, with the exception of the left ear showing a mild sensorineural hearing loss at 6000 Hertz. Speech recognition scores obtained with Maryland CNC word lists were excellent in both ears. Tympanometry revealed normal tympanic membrane mobility bilaterally. Acoustic reflexes were present in both ears and acoustic reflex decay was negative in both ears. The examiner in January 2001 explained to the veteran that his hearing was essentially normal, but cautioned him to wear hearing protection when exposed to noise in order to protect his hearing. He was not a candidate for hearing aids. The examiner addressed the veteran's concerns about memory problems indicating that the veteran was to contact the psychology department about this matter. Criteria In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. 3.303 (2003). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d) (2003). Where a veteran served continuously for a period of ninety days or more during a period of war or during peacetime after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2003). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. 3.303(b) (2003). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b) (2003). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels 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 CAVC has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. 5107 (West 2002). Analysis Preliminary Matter: Duty to Notify & to Assist The Board initially notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West 2002). Among other things, this law eliminates the concept of a well-grounded claim and supersedes the decision of the CAVC in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000). 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions); see generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas, supra. On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register. The portion of these regulations pertaining to the duty to notify and the duty to assist are also effective as of the date of the enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45, 620, 45, 630-45, 632 (August 29, 2001) (codified at 38 C.F.R. § 3.159). In Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F. 3d 1339, 1348 (Fed. Cir.), the United States Court of Appeals for the Federal Circuit (CAFC) determined that 38 C.F.R. § 19.9(a)(2) is inconsistent with 38 U.S.C. § 7104(a). The CAFC invalidated 38 C.F.R. § 19.9(a)(2) because, in conjunction with the amended regulation codified at 38 C.F.R. § 20.1304, it allows the Board to consider additional evidence without having to remand the case to the agency of original jurisdiction for initial consideration and without having to obtain the appellant's waiver. The CAFC held that this is contrary to the requirement of 38 U.S.C. § 7104(a). The CAFC also determined that 38 C.F.R. § 19.9(a)(2)(ii), which provides "no less than 30 days to respond to notice," is contrary to 38 U.S.C. § 5103(b). The CAFC invalidated 38 C.F.R. § 19.9(a)(2)(ii), which requires the Board "to provide the notice required by 38 U.S.C. [§] 5103(a)" and "not less than 30 days to respond to the notice," because it is contrary to 38 U.S.C. § 5103(b), which provides the claimant one year to submit evidence. In the case at hand, the Board is satisfied that the duty to notify and the duty to assist have been met under the new law. The duty to notify has been satisfied as the veteran has been provided with notice of what is required to substantiate his claim. The RO, through its issuance of its April 2001 rating decision, the July 2001 statement of the case (SOC), and February 2002 supplemental statement of the case (SSOC) and associated correspondence, has given the veteran notice of the information and evidence necessary to substantiate his claim. That is, he was provided with notice of the regulations pertaining to the claim at issue, a rationale of the denial, and he was notified of his appellate rights. He was also notified of the evidence that had been obtained and considered. The RO's February 2001 VCAA letter advised the veteran of the newly enacted provisions of the VCAA. In this letter, the provisions and requirements of the VCAA of 2000 were discussed and the RO advised his what evidence VA would obtain on his behalf and what evidence he should submit or aid the RO in obtaining. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran acknowledged receipt of this letter in a report of contact dated the same month. In this case, a preliminary review of the record shows that VA has made reasonable efforts to obtain evidence necessary to substantiate the veteran's claim. The Board notes that records have been associated with the claims folder including service medical records and postservice VA records. The RO obtained a VA examination that provided nexus opinions concerning the issue of entitlement to service connection for a hearing loss disability. The evidence of record provides a complete basis for addressing the merits of the veteran's claim as cited above at this time. Therefore, the duty to assist has been satisfied in this case. 38 U.S.C.A. § 5103A (West 2002); see also 66 Fed. Reg. 45,620, 45,630 (August 29, 2001) (codified at 38 C.F.R. § 3.159). As noted above, the RO has considered the veteran's claim under the new law. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to his claim is required to comply with the duty to assist his as mandated by 38 U.S.C.A. §§ 5103, 5103A (West 2002). Service Connection The CAVC has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In essence, the veteran has not submitted a current medical diagnosis of any bilateral ear hearing loss or a qualified medical opinion stating that a bilateral ear hearing loss has been diagnosed and linked to any incident or event of active service. None of the medical records have ever shown a bilateral ear hearing loss disability as defined by the VA criteria shown in 38 C.F.R. § 3.385. Sensorineural hearing loss to a compensable degree during the first post service year was never shown by the evidentiary record. For these reasons, the Board finds that there is no evidence that the veteran currently suffers from, or has ever suffered from a bilateral hearing loss. There is no current medical diagnosis of a bilateral ear hearing loss, muchless one linked to service on any basis. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral ear hearing loss. See Gilbert, supra. ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND This claim must be afforded expeditious treatment by the Veterans Benefits Administration Appeals Management Center (VBA AMC). The law requires that all claims that are remanded by the Board or by the CAVC 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 Supp. 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs (or VBA AMC) to provide expeditious handling of all cases that have been remanded by the Board and the CAVC. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The CAVC has held that section 5103(a) as amended by the Veterans Claims Assistance Act of 2000 (VCAA) and § 3.159(b), as recently amended, require VA to inform a claimant of which evidence VA will provide and which evidence claimant is to provide, and remanding where VA failed to do so. See Quartuccio v Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F. 3d 1339, 1348 (Fed. Cir. 2003), the CAFC determined that 38 C.F.R. § 19.9(a)(2) is inconsistent with 38 U.S.C. § 7104(a). The CAFC invalidated 38 C.F.R. § 19.9(a)(2) because, in conjunction with the amended regulation codified at 38 C.F.R. § 20.1304, it allows the Board to consider additional evidence without having to remand the case to the agency of original jurisdiction for initial consideration and without having to obtain the appellant's waiver. The CAFC held that this is contrary to the requirement of 38 U.S.C. § 7104(a). The CAFC also determined that 38 C.F.R. § 19.9(a)(2)(ii), which provides "no less than 30 days to respond to notice," is contrary to 38 U.S.C. § 5103(b). The CAFC invalidated 38 C.F.R. § 19.9(a)(2)(ii), which requires the Board "to provide the notice required by 38 U.S.C. [§] 5103(a)" and "not less than 30 days to respond to the notice," because it is contrary to 38 U.S.C. § 5103(b), which provides the claimant one year to submit evidence. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F. 3d 1334 (Fed. Cir. 2003), the CAFC 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 CAFC made a conclusion similar to the one reached in Disabled American 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 CAFC 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. Upon review of the evidence and procedural history, the Board finds that VA's duty to assist the appellant in the development of facts pertinent to his claim and to ensure full compliance with due process requirements requires a remand in this matter. Although it appears that the RO fulfilled the notice requirements set forth by the VCAA, including the Paralyzed Veterans of America and Disabled American Veteran, supra, when it issued a VCAA letter in February 2001, further development is warranted regarding the veteran's PTSD claim and his other psychiatric disorder claims. The veteran is claiming that he has PTSD as a result of serving aboard a submarine that was involved in combat in Grenada. In a July 2000 stressor statement, the veteran alleged being under severe psychological stress while serving aboard a submarine in the Granada conflict zone. He alleged that being in an enclosed submarine environment at the time caused great stress, and that during this time he was confronted with events that involved great fear and hopelessness due to threats of injury or death to himself and others. In a January 2000 social work assessment he alleged that his ship was stationed off the coast of Granada and was shelled. He indicated that he underwent a change of personality and began having disciplinary problems after this combat episode. He also was said to have had some abuse as a child. The report of an October 2000 VA examination reflects additional stressors cited by the veteran of alleged emotional abuse by his fellow service members. Specifically, he alleges that they beat up a fellow sailor and when he reported the incident, they began picking on him and harassing him. This report indicated that the veteran did not serve in combat, although his ship was stationed in waters off of Grenada at the time of the conflict. The veteran elaborated on his claimed stressors in an August 2001 statement. He described the incident in which he was threatened by his crew members after they had beaten up another sailor. He alleged that one night they entered his room and threatened to throw him down a flight of stairs. He indicated that he feared for his safety, but they left. Following this incident he indicated that he started having problems drinking heavily. He alleged that on subsequent sea assignments he continued to have interpersonal problems, and had a few incidents in which he was either physically punched, grabbed or threatened. He also noted that he began having discipline problems. The service personnel records reflect that the veteran began having disciplinary problems in 1984. In July 1984 he was subject to a derogatory written report for various performance deficiencies and in January 1985 he was reported as having an unauthorized absence. He was sentenced to nonjudicial punishment in August 1984, January 1985. He was discharged in March 1985 due to unsatisfactory performance and a pattern of misconduct. Elsewhere the record indicates the existence of other potentially relevant records. In a January 2000 treatment record, the veteran is noted to have alleged treatment in an alcohol program in Pennsylvania around September to November 1999. In addition, with respect to the PTSD claim, because the veteran's claimed stressors primarily involve allegations of personal assault, threats, and harassment, any development of the record must be in accordance with that required of claims involving allegations of personal assault. See Patton v. West, 12 Vet. App. 272 (1999). Veterans claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. Personal assault is an event of human design that threatens or inflicts harm. Although these incidents are most often thought of as involving female veterans, male veterans may also be involved. Care must be taken to tailor development for a male or female veteran. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. VA Adjudication Procedure Manual M21-1, Part III, para. 5.14 (Apr. 30, 1999). Because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Therefore, alternative evidence must be sought. The M21-1 Manual includes a sample letter to be sent to the veteran, asking him to provide detail as to any treatment he had received, any family or friends he had communicated with concerning the claimed personal assault(s), and any law enforcement or medical records pertaining to the alleged assault(s). Id. See also YR v. West, 11 Vet. App. 393 (1998) (para. 5.14 is a substantive rule and the equivalent of a VA regulation). Accordingly in order to ensure further compliance with the VA's duty to assist, this case is REMANDED to the VBA AMC for the following actions: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The VBA AMC should request the veteran to provide more specific details regarding his alleged in-service stressors, and he should clarify whether he was or was not a victim of physical assaults. He should be asked to provide, as specifically as possible, the dates and locations of any and all alleged stressors and any other information pertinent to verification. 3. The veteran should also be asked to identify potential alternative sources for supporting evidence of such reports. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. If the veteran does in fact allege personal (physical) assault(s), the VBA AMC should afford him the opportunity to submit any alternate available sources that may provide credible support to the in-service personal assaults to support his claim for service connection for PTSD, as provided in M21-1, Part III, para. 5.14(c). The veteran should be asked to provide any additional information possible regarding personal assaults and to identify alternative sources for supporting evidence of such reports. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 4. The VBA AMC should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate, if the veteran has provided sufficiently detailed information to make such a request feasible. 5. The VBA AMC should review the entire claims file and prepare a summary of the unverified claimed stressors based on review of all pertinent documents, to include the veteran's PTSD Questionnaire and all medical records. The summary and all associated documents, including a copy of this remand, all available service records, and any written stressor statements should then be sent to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150, to obtain verification of the claimed stressors. The USASCRUR should be requested to provide any information which might corroborate any of the veteran's alleged experiences and stressors. This should include not only the allegations of personal assault, but also the claimed incident wherein his ship he was stationed on was alleged to have been fired upon while supporting combat operations in Grenada. 6. Thereafter, regardless of whether alleged stressors have been verified, the VBA AMC should afford the veteran a VA special psychiatric examination by a specialist who has not previously examined or treated him. The claims file, a separate copy of this remand, the stressor list compiled by the VBA AMC, and any information provided by the USASCRUR, and copies of the pertinent M21-1 criteria with respect to personal assault claims must be provided to the examiner for review prior and pursuant to conduction and completion of the examination. The examiner must annotate the examination report that all of the foregoing was in fact made available in conjunction with the examination. Any further indicated special studies, including psychological studies, should be accomplished. The examiner must determine the nature, severity, and etiology of any psychiatric disorder(s) present, to include PTSD, major depression, and mixed personality disorder. The examiner should utilize DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. With respect to any reported personal assaults in service, the examiner is requested to analyze the service personnel records in light of the examples listed in M21-1, Part III, para. 5.14(c)(7). Specifically, the examiner should determine whether there is in- service and/or post service evidence of behavior changes at the time of the alleged stressor incident(s), which indicate their occurrence. See M21-1, Part III, 5.14(c)(7), (8). In doing so, the examiner should carefully review all of the veteran's statements on file regarding the event(s) of in-service harassment which may include personal assault as well as the secondary evidence and evidence of behavior changes shown in the service personnel records. It is requested that the examiner interpret the behavior changes and evidence pertaining thereto and render an opinion whether the behavior changes are related to the claimed stressors. If PTSD is diagnosed, the examiner should explain whether and how each of the diagnostic criteria is or is not satisfied. Again, if PTSD is diagnosed, the examiner must identify the verified stressor(s), including pre-service stressors alleged by the veteran, additional information concerning which may have been obtained in pre-service documentation and associated with the claims file. The examiner must be requested to determine whether any psychiatric disorder(s) diagnosed on examination had it onset prior to, during, or after service. It is requested that the examiner opine as to whether any psychiatric disorder(s) existing prior to service was/were aggravated by service. Any opinions expressed by the examiner must be accompanied by a complete rationale. 7. Thereafter, the VBA AMC should review the claims file to ensure that all of the following requested development has been completed. In particular, the VBA AMC should review the requested examination report(s) and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the VBA AMC should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). In addition, the VBA AMC must review the claims file to ensure that any other notification and development action required by the VCAA, Pub. L. No. 106-475 is completed. In particular, the VBA AMC should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (38 U.S.C. §§ 5102, 5103, 5103A and 5107) are fully complied with and satisfied. 8. After undertaking any development deemed essential in addition to that specified above, the VBA AMC should readjudicate the claims of entitlement to service connection for PTSD, major depression, and mixed personality disorder. If the benefit requested on appeal is not granted to the veteran's satisfaction, the VBA AMC should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the claim currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim for service connection, and may result in its denial. 38 C.F.R. § 3.655 (2003). ______________________________________________ RONALD R. BOSCH 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