Citation Nr: 0333819 Decision Date: 12/04/03 Archive Date: 12/15/03 DOCKET NO. 02-00 944A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, including post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans Of America WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran (also referred to as "appellant" or "claimant") served on active duty from May 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which found that new and material evidence had not been presented to reopen a claim for service connection for a "nervous condition." The veteran entered notice of disagreement with this decision in May 1996; the RO issued a statement of the case in December 2001; and the veteran entered a substantive appeal, on a VA Form 9, which was received in February 2002. In the December 2001 statement of the case, the RO found that the veteran had presented new and material evidence, reopened the claim for service connection for a psychiatric disorder that included PTSD, and denied the claim for service connection on the merits. A June 2002 RO rating decision denied the veteran's claim of entitlement to automobile and adaptive equipment or adaptive equipment only. The veteran was notified of this decision by letter from the RO issued on June 25, 2002. In a Statement in Support of Claim received in September 2002, the veteran entered notice of disagreement with the June 2002 rating decision denial of automobile and adaptive equipment or adaptive equipment only. The issue of entitlement to automobile and adaptive equipment is addressed below in the REMAND portion of this decision. The Board is required to remand this issue to the RO for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). FINDINGS OF FACT 1. All evidence necessary to decide the claim on appeal has been obtained; VA has notified the veteran of the evidence needed to substantiate the service connection claim addressed in this decision, and has obtained all relevant evidence designated by the veteran, in order to assist him in substantiating his claim for VA compensation benefits; in light of the reopening of the claim and the grant of service connection for PTSD, there is no reasonable possibility that additional assistance would further aid in substantiating the claim. 2. A February 1983 Board decision denied service connection for a psychiatric disorder. 3. The evidence received since the February 1983 Board decision that is new, by itself or in connection with evidence previously assembled, is of sufficient significance that it must be considered in order to fairly decide the merits of a claim for service connection for a psychiatric disorder that includes PTSD. 4. The veteran did not engage in combat with the enemy. 5. The evidence of record for and against the veteran's claim is in relative equipoise on the question of whether a personal sexual assault occurred during his active duty service. 6. The record includes a medical diagnosis of PTSD, and medical evidence of a nexus between diagnosed PTSD and the stressful event of personal sexual assault in service. CONCLUSIONS OF LAW 1. The Board's February 1983 decision was final when issued. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 20.1100 (2003). 2. The evidence received subsequent to Board's February 1983 decision is new and material, and the requirements to reopen the claim of entitlement to service connection for a psychiatric disorder including PTSD have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 20.1105 (2003); 38 C.F.R. § 3.156(a) (2001). 3. With the resolution of reasonable doubt in the veteran's favor, the psychiatric disorder of PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), now requires VA to assist a claimant in developing all facts pertinent to a claim for VA benefits, including a medical opinion and notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the VA Secretary, that is necessary to substantiate the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has issued regulations to implement the Veterans Claims Assistance Act of 2000. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). The Board finds that, in this appellant's case, the requirements of the Veterans Claims Assistance Act of 2000 and implementing regulations have been met. In the rating decision and statement of the case, the RO advised the appellant of what must be demonstrated to reopen a claim for service connection for a psychiatric disorder that included PTSD, and to establish on the merits a claim for service connection for a psychiatric disorder that included PTSD. In the December 2001 statement of the case, the RO advised the veteran of the regulatory provisions of the Veterans Claims Assistance Act of 2000. The Board finds that the RO has obtained, or made reasonable efforts to obtain, all records or other evidence that might be relevant to the appellant's claim, and the appellant has not identified any additional records or other evidence that has not been obtained. Moreover, in light of the grant of benefits sought on appeal, no further evidence is necessary to substantiate the veteran's claim to reopen and to grant service connection for a psychiatric disorder that includes PTSD. See 38 U.S.C.A. § 5103(a) (West 2002). In this veteran's case, there is no reasonable possibility that further assistance would aid in substantiating the veteran's claim for VA compensation benefits. See 38 U.S.C.A. § 5103A(a)(1),(2) (West 2002). Accordingly, notwithstanding any deficiencies of VA in discharging its duties to assist and notify, no further notice to the appellant or assistance in acquiring additional evidence is required by the new statute and regulations. II. New and Material Evidence to Reopen Claim The veteran's claim for service connection for a psychiatric disorder was denied in a February 1983 Board decision. The bases of the determination were that the in-service diagnosis was personality disorder rather than an acquired psychiatric disease. The Board's February 1983 decision denying an appeal for service connection for a psychiatric disorder was final when issued. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 20.1100. A July 1988 rating decision in effect found that new and material evidence sufficient to reopen the claim for service connection for a nervous condition had not been submitted. Because it is not clear that the veteran received notice thereof with his appellate rights, the Board will not consider the July 1988 rating to be a final decision. The August 1995 RO rating decision on appeal determined that new and material evidence had not been submitted to reopen service connection for a psychiatric disorder ("nervous condition"). In the December 2001 statement of the case during the appeal, the RO found that new and material evidence had been presented, and reopened the veteran's claim for service connection for a psychiatric disorder that included PTSD. The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted, it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. As applied to the present claim, new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108. Consequently, the evidence that must be considered in determining whether there is a basis for reopening this claim is that evidence added to the record since the final February 1983 Board decision. The evidence received subsequent to the February 1983 Board decision includes additional medical evidence from a private psychologist (February 2002 letter from Bennett Jennings, Ph.D.) of a current diagnosis of PTSD, medical opinion that the changes in the veteran's affect are commonly seen among sexual assault victims, and medical opinion evidence that it is likely that the reported in-service sexual assault occurred. The Board finds that this additional evidence is new, and, by itself or in connection with evidence previously assembled, is of sufficient significance that it must be considered in order to fairly decide the merits of a claim for service connection for a psychiatric disorder that includes PTSD. For these reasons, the Board finds that the evidence received subsequent to the Board's February 1983 decision is new and material, and the requirements to reopen the claim of entitlement to service connection for a psychiatric disorder including PTSD have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 20.1105. As the claim for service connection is reopened, the Board will address the claim on the merits. III. Service Connection for Psychiatric Disorder The veteran contends that he currently suffers from PTSD as a direct result of a personal assault, or rape, during his active service. He specifically contends that subsequent to the rape his behavior changed, including behavioral problems in service, weight gain, desire to separate from service, and that he attempted suicide by overdose and became divorced soon after service separation. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2003). For the showing of 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. 38 C.F.R. § 3.303(b) (2003). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2003). Additionally, certain chronic diseases, including psychoses, may be presumed to have been incurred during service if manifest to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection was manifest to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Service connection for PTSD now requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Prior to the effective date of 38 C.F.R. § 3.304(f) on June 18, 1999, and at the time of the veteran's claim for service connection for PTSD, the requirements for service connection for PTSD were: medical evidence establishing a clear diagnosis of the condition; credible supporting evidence that the claimed stressor actually occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1998). Generally, when a law or regulation changes while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In this case, the Board finds that the new regulation is potentially more beneficial in this veteran's case because it only requires medical evidence of a current diagnosis of PTSD in accordance with DSM-IV, but no longer requires a "clear" diagnosis of PTSD (which could include a diagnosis based on a version of DSM prior to the DSM-IV). The RO notified the veteran of the new regulation in its December 2001 statement of the case. With regard to the claimed stressor involving allegations of personal sexual assault, VA recognizes that 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. 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, 5.14 (April 30, 1999) (hereinafter M21-1). 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 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 this claimed personal assault, and any law enforcement or medical records pertaining to the alleged assault. M21-1, Part III, 5.14 (April 30, 1999). See also YR v. West, 11 Vet. App. 393 (1998) (5.14 is a substantive rule and the equivalent of a VA regulation). With respect to claims involving personal assault, all available evidence must be carefully evaluated. If the military records do not document that a personal assault occurred, alternative evidence might still establish an in- service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but are not limited to): (a) visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; (c) lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; (d) changes in performance and performance evaluations; (e) lay statements describing episodes of depression, panic attacks, or anxiety but no identifiable reasons for the episodes; (f) increased or decreased use of prescription medications; (g) increased use of over-the-counter medications; (h) evidence of substance abuse such as alcohol or drugs; (i) increased disregard for military or civilian authority; (j) obsessive behavior such as overeating or undereating; (k) pregnancy tests around the time of the incident; (l) increased interest in tests for HIV or sexually transmitted diseases; (m) unexplained economic or social behavior changes; (n) treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and (o) breakup of a primary relationship. M21-1, Part III, 5.14(7). In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, 5.14(8). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d),(f) (2002); Doran v. Brown, 6 Vet. App. 283, 289 (1994). If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In this case, there is no objective evidence that the veteran "engaged in combat with the enemy." See VAOPGCPREC 12-99. The veteran's DD Form 214 does not indicate references to combat, but reflects that the veteran was a cook, with no foreign or sea service, and earned the National Defense Service Medal and a Sharpshooter (M16) badge, and no other awards. Moreover, the veteran does not even allege that the claimed in-service stressful event of a personal sexual assault was related to combat with the enemy in service. For these reasons, the Board finds that the veteran did not engage in combat with the enemy and that the reported stressor is not claimed to be related to combat. Because the veteran did not engage in combat with the enemy, his lay testimony alone is not enough to establish the occurrence of the alleged stressor of personal assault. After a review of the evidence, however, the Board finds that the service records and other evidence of record are sufficient to raise a reasonable doubt as to whether the alleged stressor of a personal sexual assault occurred during the veteran's active duty service. The Board has specifically considered behavior changes that occurred at the time of the incident, or soon thereafter, as indicated by the M21-1, which may indicate the occurrence of an in-service stressor. The evidence in this case includes service medical records that reflect that at the service entrance examination the veteran was noted to be psychiatrically normal. Based on complaints of fleeting left and lateral chest pains, the veteran was hospitalized during service from February to April 1973 for possible heart disease. Mild cardiomegaly was noted, but no cardiac disease was found or diagnosed, and the examiner indicated that no profile for restrictions for cardiac illness were needed. Service personnel records reflect that in March 1973 the veteran was a patient in the mental health clinic. A May 1973 examination for Medical Board was negative for psychiatric abnormalities. A May 1974 Report of Mental Status Evaluation indicated normal behavior, and normal findings, and entered the impression that there was no significant mental illness. In service in September 1974, the veteran underwent psychiatric examination after taking 20 aspirins and other pills. The veteran reported that he saw no other way out of his financial problems and difficulty in coping with Army life, and that he had experienced trouble many times and difficulty in adapting to military requirements. An examination in September 1974 diagnosed a chronic severe character and behavior disorder that was manifested by ineffectual response to emotional, social, intellectual, and physical demands, anxiety, and depression. Notwithstanding that the day before the September 1974 examination the veteran was hospitalized for an overdose, and that the veteran had just reported the day before that he felt he had no other way out of his financial circumstances and problems coping with Army life, the September 1974 examination report reflects a finding that there was no evidence of suicidal ideation. The in-service diagnosis in September 1974 was based largely on the veteran's general reports of having held several jobs before service, and the veteran's general report of trouble during service, conclusions which the veteran has subsequently contested and provided extensive corroborative evidence in rebuttal. The opinion in September 1974 was that the veteran should be separated soon from service because continued stress of military life could result in the veteran becoming seriously psychiatrically ill. The M21-1 contemplates that visits to a medical clinic without a specific diagnosis or specific ailment is a behavior change occurring at the time of the incident that might indicate a stressor. In light of negative psychiatric findings at service entrance, negative psychiatric findings in service in May 1973 and in May 1974, and the September 1974 in-service incident in which the veteran overdosed on aspirin and other pills and underwent psychiatric examination, the Board finds that the in-service evidence reflects a significant behavior change during service since the beginning of the veteran's service in May 1972. The March 1973 service personnel record reflects that the veteran was a patient in the mental health clinic, with no resulting diagnoses of record at that time, or when examined subsequently in May 1973 and May 1974; this is some evidence of a visit to a medical facility without a specific diagnosis. As indicated, the record reflects that towards the end of his service, in September 1974, the veteran expressed difficulty in coping with Army life. The veteran enlisted for a period of three years, but because of the incident in September 1974, was separated from service in less than three years from his enlistment. This reflects the veteran's desire not to remain in service, which includes a desire not to remain on the same base or in the same command. The Board notes that during service the veteran reported an intent and willingness to be rehabilitated to continue service, but also notes that his in-service conduct in September and October 1974, as well as his subsequent statements that he did not want to be in service, in sum reflect a desire not to remain in service. This is analogous to the M21-1 behavior change of a sudden request for a change of duty assignment without other justification. Changes in performance and performance evaluations are behavior changes contemplated by M21-1 that might indicate a stressor. An October 1974 Elimination Action Up memorandum summarizes the chronological record of assignments during the veteran's term of enlistment. The record reflects that the veteran received "excellent" conduct and efficiency ratings from May 1972 to June 1973, but beginning in August 1973 the conduct and efficiency ratings were reduced to "CDY" and then to "unsatisfactory." A November 1973 Enlisted Efficiency Report reflects that the veteran excelled at pastry baking, and that qualities such as conscientiousness, dependability, willingness to assume responsibility, and faithfulness more than compensated for lack of formal training. Letters of appreciation in the veteran's file reflect that, prior to September 1974, the veteran volunteered his off-duty time to help another unit on several occasions baking and decorating cakes and cookies, showed ability in this area, and was congratulated on a job well done. The veteran was placed in a rehabilitation unit in September 1974, but failed to maintain the standards required. The veteran was discharged from service in October 1974, well before the end of his three year service agreement. While it is unclear exactly when a change in behavior in service occurred, the record reflects that the veteran's personal conduct toward the end of service indicated not only behavioral problems, but a change in efficiency as well. Increased disregard for military authority is also a behavior change indicated by M21-1 as behavior that might indicate a stressor. The evidence of record also reflects the veteran's increased disregard for military authority toward the end of service. The veteran was placed in a rehabilitation unit in September 1974, but failed to maintain required standards of dress and conduct, as evidenced by an Article 15 punishment for uniform violation in October 1974 and negative supervisory comments and recommendations in October 1974. Obsessive behavior, such as overeating, is a change contemplated by M21-1 that might indicate a stressor. While a waiver of the weight standards was granted in May 1972 to allow the veteran to enter service, the record reflects that the veteran gained weight during service, so that by April 1974 he was diagnosed with exogenous obesity. Another of the behavior changes indicated by the M21-1 is treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma. Service medical records reflect that during service the veteran sought a referral for mammoplasty, even though he elected not to have the procedure performed. Breakup of a primary relationship is a change contemplated by M21-1 that might indicate a stressor. The record reflects that soon after service separation the veteran divorced his wife. A letter from the veteran's ex-wife dated in July 1994 reflects that the veteran told her that "he had been raped, kidnapped, and drug-dosed" during service, and that the veteran attempted another overdose after service, which contributed to the destruction of their marriage. The veteran has testified under oath at three personal hearings over a period of many years regarding the incurrence of a rape in service. Dr. Jennings noted (February 2002) that the veteran's accounts about the sexual assault in service were consistent over time, and opined that they reflect "changes in affect commonly seen among victims of [sexual] trauma." Dr. Jennings offered the opinion that "it is very likely that this traumatic event occurred, much as patient describes it." The Board finds that, although the veteran does not consistently recall dates of occurrence of events, including the in-service rape, his essential testimony regarding this event, as well as other significant facts he reported, are consistent with the service medical record evidence and other corroborative evidence. The veteran's testimony includes that, subsequent to the rape in service, he significantly gained weight; he sought a consultation for plastic surgery, although he did not actually have it performed; his behavior changed in service; he attempted suicide in service in September 1974 and soon after service; and that after service he divorced his wife. The veteran has inconsistently reported minor details, including one report of having been kidnapped and raped for a six month period during service, but other evidence of record does not otherwise demonstrate that the veteran's essential testimony is not credible. The post-service medical evidence of record tends to corroborate the veteran's testimony as it reflects that the veteran has reported the occurrence of an in-service rape on numerous occasions, including in personal hearing testimony under oath at three hearings. Based on this evidence, the Board finds that the service records and other evidence of record are sufficient to raise a reasonable doubt as to whether the alleged stressor of a personal sexual assault occurred during the veteran's active duty service. Resolving reasonable doubt on this question in the veteran's favor, the Board finds that the reported stressor of a personal sexual assault occurred during service. 38 C.F.R. § 3.102. The record includes a medical diagnosis of PTSD and medical evidence of a nexus between diagnosed PTSD and the stressful event of personal assault in service, the two additional elements required to establish a claim for service connection for PTSD. 38 C.F.R. § 3.304(f). For example, a February 2000 letter by a private psychologist, Dr. Jennings, reflects the opinions that it was very likely the traumatic event occurred as the veteran described it, the symptomatology present met the DSM-IV criteria for a diagnosis of the psychiatric disorder of PTSD, the trauma the veteran experienced in service had a powerful disruptive effect on his life, and that the veteran has developed behavioral patterns as a means of coping with stress in his life. As indicated, the record includes a medical diagnosis of PTSD, competent evidence which supports the veteran's assertion of in-service incurrence of the stressful event of a personal sexual assault, and medical evidence of a nexus between diagnosed PTSD and the stressful event of personal sexual assault in service. For these reasons, and with the resolution of reasonable doubt in the veteran's favor, the Board finds that the veteran's diagnosed psychiatric disability of PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125(a). ORDER New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disorder including PTSD is granted. Service connection for the psychiatric disability of PTSD is granted. REMAND A June 2002 RO rating decision denied the veteran's claim of entitlement to automobile and adaptive equipment or adaptive equipment only. The veteran was notified of this decision by letter from the RO issued on June 25, 2002. In a Statement in Support of Claim received in September 2002, the veteran entered notice of disagreement with the June 2002 rating decision denial of automobile and adaptive equipment or adaptive equipment only. A statement of the case on the issue of entitlement to automobile and adaptive equipment or adaptive equipment only has not been issued subsequent to the June 2002 rating decision. In order to comply with due process requirements, a remand is in order for the RO to prepare a statement of the case on the issue of entitlement to automobile and adaptive equipment or adaptive equipment only. See Manlincon, 12 Vet. App. 238. Accordingly, to ensure full compliance with due process requirements, this case is REMANDED for the following: The veteran should be provided a statement of the case regarding the claim for automobile and adaptive equipment or adaptive equipment only. The statement of the case should address all aspects of this claim including the criteria by which automobile and adaptive equipment or adaptive equipment only may be awarded, and compliance with the Veterans Claims Assistance Act of 2000. Further, the veteran should be advised that, if he wishes the Board to address this claim, he must submit a timely substantive appeal in response to the statement of the case. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ BARBARA B. COPELAND 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