Citation Nr: 0335174 Decision Date: 12/16/03 Archive Date: 12/24/03 DOCKET NO. 96-34 784 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for osteoarthritis of the right hip, to include as secondary to service-connected back injury with compression fractures and residual injury of the right knee with chondromalacia of the patella. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for an upper back disability, other than ankylosing spondylitis. 5. Entitlement to service connection for iritis. 6. Entitlement to service connection for a cervical disability, other than ankylosing spondylitis. 7. Entitlement to service connection for osteoporosis. 8. Entitlement to service connection for uveitis. 9. Entitlement to service connection for an asbestos-related lung disability. 10. Entitlement to service connection for major depression. 11. Entitlement to service connection for ankylosing spondylitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from June 1960 to October 1979. This appeal originates from rating decisions dated in May 1996, October 1997 and January 2000. In the May 1996 rating decision, the RO denied the veteran's claims for service connection for osteoarthritis of the right hip, to include as secondary to service-connected residuals of a back injury with compression fractures and residuals of a right knee injury with chondromalacia of the patella. The RO also denied the veteran's claim for a TDIU. The veteran submitted a notice of disagreement with these issues in June 1996, and a statement of the case was issued in July 1996. The veteran perfected this appeal to the Board of Veterans' Appeals (Board) with the filing of a substantive appeal in July 1996. In the October 1997 rating decision, the RO denied the veteran's claims for service connection for uveitis, an asbestos-related lung disability, major depression and ankylosing spondylitis. The appellant submitted a notice of disagreement with the decision in November 1997, and a statement of the case was issued in May 1998. The appellant perfected his appeal to the Board with the filing of a substantive appeal in June 1998. In the January 2000 rating decision, the RO denied the veteran's claims for service connection for a left knee disability, an upper back disability, iritis, a cervical disability and osteoporosis. The appellant submitted a notice of disagreement with the decision in February 2000, and a statement of the case was issued in February 2000. The appellant perfected his appeal to the Board with the filing of a substantive appeal in February 2000. In May 2003, the veteran presented testimony before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing the veteran claim of secondary service connection for left knee disability. However, as this claim has not been adjudicated, it is not properly before the Board; hence, it is referred to the RO for appropriate action. The Board's decision on the claims for service connection for a left disability, for an upper back disability(other than ankylosing spondylitis) and for cervical disability (other than ankylosing spondylitis) are set forth below. The remaining issues are addressed in the remand following the decision. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims for service connection for a left knee disability, an upper back disability (other than ankylosing spondylitis) and a cervical disability (other than ankylosing spondylitis) has been accomplished. 2. There is no competent medical evidence that demonstrates that the veteran has, or, at any time pertinent to the instant claim on appeal, has had a left knee disability. 3. There is no competent medical evidence to show that the veteran has, or, at any time pertinent to the instant claim on appeal, has had an upper back disability (other than ankylosing spondylitis). 4. There is no competent medical evidence to show that the veteran has, or, at any time pertinent to the instant claim on appeal, has had a cervical disability (other than ankylosing spondylitis). CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2003). 2. The criteria for service connection an upper back disability (other than ankylosing spondylitis) are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2003). 3. The criteria for service connection for a cervical disability (other than ankylosing spondylitis) are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003)). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal for service connection for a left knee disability, an upper back disability (other than ankylosing spondylitis) and a cervical disability (other than ankylosing spondylitis) has been accomplished. Through the January 2000 rating decision and the February 2000 statement of the case, the RO notified the veteran of the legal criteria governing his claims for service connection for a left knee disability, an upper back disability (other than ankylosing spondylitis) and a cervical disability (other than ankylosing spondylitis), the evidence that has been considered in connection with these claims, and the bases for the denials of the claims. Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support these claims, and has been afforded ample opportunity to submit information and evidence. The Board also finds that RO letters dated in June 2002 and April 2003 satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA, has also been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the June 2002 letter, the RO again notified the veteran of the information and evidence needed to establish the claims for service connection for a left knee disability and an upper back disability (other than ankylosing spondylitis); and requested that the veteran provide information, and, if necessary, authorization, to enable it to attempt to obtain any outstanding medical evidence pertinent to these claims on appeal. The Board acknowledges that in the June 2002 letter, the RO requested that the veteran furnish information and/or evidence pertinent to claims for service connection within 60 days, and gave the veteran 30 days to provide such information in the April 2003 letter regarding other service connection claims, whereas the governing statute provides for a response period of one year. See 38 U.S.C.A. § 5103. In a recent decision, the United States Court of Appeals for the Federal Circuit invalidated the less than one year (30-day) response period contained in 38 C.F.R. § 3.159(b)(1), as inconsistent with 38 U.S.C. § 5103(b)(1). See Paralyzed Veterans of America (PVA) v. Secretary of Veterans Affairs (Secretary), No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003). However, the Board finds no violation of the notification provisions of 38 U.S.C.A. § 5103(b)(1) that would affect the outcome of the decision in this case. In this regard, the veteran in June 2002 waived in writing the 60 day period for submitting evidence. Also, since the RO's June 2002 and April 2003 letters, more than a year has passed without the submission or identification of any pertinent medical evidence not of record, and there has otherwise been no indication whatsoever, from either the veteran or his representative, that there is any outstanding pertinent evidence to obtain. In fact, the veteran informed the RO in writing in April 2003 that he had no additional evidence for VA to obtain, and requested that the claims file be forwarded to the Board without further rating consideration. He added that all medical records were held at the VAMC in Reno, Nevada, and Prescott, Arizona. Records from both VA medical facilities are on file. Under these circumstances, the Board finds that there is no prejudice in going forward with a decision in the appeal of service connection for a left knee disability, an upper back disability (other than ankylosing spondylitis) and a cervical disability (other than ankylosing spondylitis), as any failure on VA's part in its duty to notify the veteran is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998); Cf. 38 C.F.R. § 20.1102. II. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; (West 2002). Such a determination requires a finding of a current disability that is related to injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The veteran contends that he suffers from a left knee disability. However, the record is devoid of any medical diagnosis of a left knee disability either in or following service. Service medical records show only that the veteran sustained injuries to his right knee. The only notation with respect to his left knee is the service entrance examination report noting that the veteran had an anterior "CS 1/2" left knee". There simply is no indication of an in-service injury or complaints or treatment related to the veteran's left knee. Post-service medical records likewise show no left knee disability. Such records include VA examination reports dated in 1981, 1994, 1995, 1996, 1997 and 1999, in addition to VA treatment records. Moreover, with respect to a left knee disability, the veteran testified in May 2003 that he had never been diagnosed by a doctor as having a left knee disability, but believed that he had such a disability because his left knee "hurt". Pain alone, without a diagnosed or identifiable underlying malady or condition does not in itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), aff'd sub nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Regarding an upper back or cervical disability, the veteran testified that these disabilities arose from an incident in service when he went down a slick metal iron ladder on his back. He said that he went to sickbay and was on bed rest for a week or so. However, the only service medical record showing treatment for the veteran's back is an October 1972 record reflecting the veteran's complaint of extreme low back pain, along with a notation of "no history of trauma". The veteran is already service-connected for a low back disability. Also, the veteran testified that this incident resulted in compression fractures up and down his back, specifically noting T11 and T9; however, the veteran's service-connected back disability already includes compression fractures T-10 and T-11. As far as post-service medical records, the veteran said he received treatment at the Prescott, VA medical center (VAMC), shortly after retiring from service. However, records from this facility, as well as VA examination reports dated in 1981, 1994, 1995, 1996, 1997 and 1999, are devoid of any findings or diagnoses regarding the upper back and cervical spine, other than ankylosing spondylitis. As indicated above, Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. Hence, in the absence of proof of present disabilities affecting the left knee, upper back and cervical spine (other than ankylosis spondylitis) (and, if so, of a nexus between such disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the veteran's assertions, and does not doubt the sincerity of any belief that he currently has a left knee disability, and upper back and cervical spine disabilities (other than ankylosing spondylitis) as a result of his military service has been considered. However, as a layman without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter. While a layman such as the veteran can certainly testify about his in-service experiences and current symptoms, he is not competent to diagnose himself as having a left knee, upper back or cervical spine disability, or to provide a medical opinion linking such disabilities to service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In the absence of competent and probative (persuasive) medical evidence establishing that the veteran has a left knee, upper back and/or cervical spine disability (other than ankylosing spondylitis) for which service connection is sought, the claims for service connection must be denied. Because the competent evidence neither supports the claims, nor is in relative equipoise on the question of the existence of current disabilities-the pivotal question in each claim under consideration-the benefit-of-the-doubt doctrine is not applicable in the adjudication of these claims. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a left knee disability is denied. Service connection for an upper back disability (other than ankylosing spondylitis) is denied. Service connection for a cervical spine disability (other than ankylosing spondylitis) is denied. REMAND The Board finds that additional action on the claims on appeal for service connection for osteoarthritis of the right hip, to include as secondary to residuals of a back injury compression fracture and right knee injury, uveitis, iritis, asbestos-related lung disability, ankylosing spondylitis, and osteoporosis is warranted before a fully informed decision can be made on such claims. With respect to right hip osteoarthritis, the veteran's service medical records are devoid of a diagnosis or treatment pertaining to the right hip. Post-service records show that the veteran was diagnosed during an April 1995 VA orthopedic examination as having moderately severe degenerative arthritis of the right hip. He was also noted to have moderate narrowing of the hip joints during an examination at the Mayo Clinic in August 1996. However, contrary to these findings is an August 1996 VA orthopedic examination report in which the examiner notes no abnormality of the right hip joint on radiographs and little objective evidence for the veteran's hip problems. He went on to say that "there does not appear to be any disease, whether rheumatoid or degenerative, involving the [veteran's] right hip". In view of this discrepancy, the veteran should be afforded a new examination in order to clarify whether the veteran indeed has osteoarthritis of the right hip and, if so, the etiology of such condition, both on a direct basis and a secondary basis. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.303, 3.310. As to uveitis, service medical records show that the veteran was treated for eye complaints including photophobia and right eye pain and was assessed in October 1978 as having "conjunctivitis vs anterior uveitis". Post-service medical records show that the veteran complained during a November 1981 VA examination of eye pain when exposed to light and was found to have slight uveitis during a February 1997 VA examination. He was similarly noted at a VA eye clinic in May 1997 as having history of anterior uveitis with mild symptoms, which were to be treated conservatively. Also, at a VA eye clinic in May 1997, the veteran was diagnosed as having history of iritis secondary to ankylosis spondylitis, left eye. However, when testifying to this claimed eye disability, in May 2003, the veteran said that he had had iritis in service and had two additional episodes after service for which he was treated with steroids. He denied having any other such episodes since. It is thus unclear from the evidence whether the veteran currently has a claimed eye disability and, if so, what disability it is (i.e., uveitis and/or iritis). Accordingly, a medical opinion must be obtained to clarify this matter. See 38 U.S.C.A. § 5103A(d). In regard to the claim for an asbestos-related lung disability, VA must determine whether military records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between asbestos exposure and the claimed lung disease. M21-1, Part VI, 7.21(d)(1) (October 3, 1997). Radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1) (October 3, 1997). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, 7.21(c) (October 3, 1997). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. M21-1, Part VI, 7.21(b)(1) (October 3, 1997). In May 1993, the veteran testified that he served approximately one year in a naval shipyard on Mare Island tearing out the piping installation on the USS Proteus and that's where he thinks he was exposed to asbestos. Indeed, his service personnel records (DD Forms 214) show that he served on the USS Proteus, and post-service medical records in February 1997 show that he had moderate restrictive lung disease. Hence, in view of the veteran's plausible exposure to asbestos in service and present lung disability, an opinion must be obtained regarding whether his present lung disease is in any way related to service. See 38 U.S.C.A. § 5103A(d). The veteran was not diagnosed as having ankylosing spondylitis until July 1996 when he was seen at the Mayo Clinic. However, he is service connected for residuals of a back injury (resulting from a fall from a truck in 1961), to include compression fractures T-10 and T-11. Accordingly, a medical opinion is required regarding whether the veteran's ankylosing spondylitis is in any way related to the veteran's in-service back injury. See 38 U.S.C.A. § 5103A(d). Similarly, the veteran was initially diagnosed as having osteoporosis at a February 1997 VA examination; specifically, he was diagnosed as having marked osteoporosis of the spine. Thus, a medical opinion should also be obtained regarding whether this disability is in any way related to his in- service back injury. Id. Hence, the RO should arrange for the veteran to undergo all appropriate medical examinations. The veteran is hereby advised that failure to report to any scheduled examination(s), without good cause, may well result in a denial of the claim(s). See 38 C.F.R. § 3.655 (2003). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the appellant fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination(s) sent to the veteran by the pertinent VA medical facility. With respect to the veteran's claim for service connection for depression, the claims file contains a February 1997 VA psychiatric examination report relating the veteran's depression to his "medical illness". However, out of the five disabilities the veteran was diagnosed as having during the February 1997 examination, four are not service-connected and the fifth (joint degeneration from both injury and arthritis) is currently on appeal for service connection (namely, the issues of entitlement to service connection for osteoarthritis of the right hip and ankylosing spondylitis). Therefore, the issue of entitlement to service connection for depression must be deferred pending resolution of the currently pending issues of entitlement to service connection for osteoarthritis of the right hip and ankylosing spondylitis. Also, because the pending issues that are currently pending for service connection could have a significant impact on the veteran's appeal for a TDIU, the TDIU issue must be deferred pending completion of the appeal pertinent to the service connection issues. In view of the necessity of a remand with respect to these claims, the veteran should also be given the opportunity to update the record by providing information and/or evidence with respect to any additional medical treatment regarding the disabilities currently on appeal that have not yet been obtained. The RO's letter to the veteran should advise him that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (West 2002); Paralyzed Veterans of America (PVA) v. Secretary of Veterans Affairs (Secretary), 345 F.3d 1334 (Fed. Cir. 2003),. The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure that the Act has fully been complied with. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the Act prior to adjudicating the claim on appeal. Based on the foregoing, these matters are hereby REMANDED to the RO for the following actions: 1. The RO should send to the veteran and his representative a letter requesting that the veteran he provide sufficient information, and, if necessary, authorization, to enable it to obtain any additional pertinent evidence not currently of record with respect to the claims currently on appeal for service connection for osteoarthritis of the right hip, iritis, uveitis, osteoporosis, asbestos-related lung disability, major depression, ankylosing spondylitis and a TDIU. The RO should also invite the appellant to submit any pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (unless this period is waived, in writing). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the procedures set forth in 38 C.F.R. § 3.159 (2003). If any records sought are not obtained, the RO should notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After associating with the claims file all available records received pursuant to the above-requested development, the RO should arrange for the veteran to undergo VA orthopedic, ophthalmology, pulmonary and psychiatric examinations. The entire claims file, to include a complete copy of this REMAND, must be made available to each physician designated to examine the veteran, and the reports of the examinations should include discussion of the veteran's documented medical history and assertions. Each examiner should accomplish all appropriate tests and studies, and report all clinical findings in detail. The examiners should also set forth all examination findings, along with the complete rationale for the conclusions reached, in printed (typewritten) reports. The orthopedic examiner should clarify whether the veteran actually has osteoarthritis of the right hip, osteoporosis and/or ankylosing spondylitits. He should also indicate whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any of the diagnoses noted above, if found, are related to the veteran's period of active duty service. With respect to the claimed right hip osteoarthritis, the examiner should also opine whether such a diagnosis, if found, is proximately related to the veteran's service- connected residuals of a back injury with compression fractures and residual injury of the right knee. The ophthalmology examiner should indicate whether the veteran has an eye disability, namely iritis and/or uveitis and, if so, whether such disability(ies) is(are) at least as likely as not (i.e., there is at least a 50 percent probability) related to service. The pulmonary examiner should indicate whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's moderate restrictive lung disease is related to service, including asbestos exposure, and, whether he has any other pulmonary disorder related to service, to include exposure to asbestos. 4. If the appellant fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination(s) sent to the veteran by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested action has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. The RO must also review the claims file to ensure that any additional notification and development required by the Veterans Claims Assistance Act of 2000 has been accomplished. Particularly, the RO must ensure that all VCAA notice obligations have been satisfied with respect to the claims currently on appeal in accordance with the recent decision in PVA v. Secretary, as well as 38 U.S.C.A. § 5103 (West 2002), and any other applicable legal precedent. 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims for service connection for osteoarthritis of the right hip, to include as secondary to residuals of a back injury compression fractures and right knee injury, ankylosing spondylitis, osteoporosis, uveitis, iritis and asbestos-related lung disease. 8. Thereafter, the RO should consider the claims for service connection for major depression and a TDIU, and take all appropriate notice and development action consistent with the Veterans Claims Assistance Act of 2000, prior to rendering a determination. 9. If any benefit sought on appeal remains denied, the RO must issue to the veteran and his representative an appropriate supplemental statement of the case (to include clear reasons and bases for the RO's determinations) and afford them the appropriate opportunity to respond before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. ______________________________________________ JACQUELINE E. MONROE 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