Citation Nr: 0404466 Decision Date: 02/17/04 Archive Date: 02/27/04 DOCKET NO. 03-21 642A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE 1. Entitlement to a higher rate of special monthly compensation (SMC), by reason of being in need of aid and attendance pursuant to the provisions of 38 U.S.C.A. § 1114(r)(1) (West 2002). 2. Entitlement to an initial evaluation in excess of 70 percent for bilateral hearing loss 3. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Walter W. Stern, Attorney-at- Law ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active military service from October 1945 to May 1952. This matter is on appeal to the Board of Veterans' Appeals (Board) form the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In January 2004, the Board granted the veteran's motion to advance his case on the Board's docket. This appeal as to the issues of initial increased ratings for hearing loss and tinnitus are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. Service connection has been granted for anxiety reaction evaluated at 100 percent disabling, idiopathic cardiomyopathy evaluated as 100 percent disabling, bilateral hearing loss evaluated as 70 percent disabling, chronic obstructive pulmonary disease evaluated as 60 percent disabling and tinnitus evaluated as 10 percent disabling. 3. Entitlement has been established to SMC pursuant to the provisions of 38 U.S.C.A. § 1114(1) and 38 C.F.R. § 3.350(b) on account of being so helpless as to be in need of regular aid and attendance. 4. Entitlement has been established to SMC under 38 U.S.C.A. § 1114(p) and 38 C.F.R. § 3.350(f)(4) at the rate equal to subsection (m) on account of the need for aid and attendance with additional disability, heart disease, independently ratable at 100 percent. 5. The veteran suffers from helplessness due to the service- connected heart disease separate and distinct from anxiety reaction . CONCLUSION OF LAW The criteria for a higher rate of special monthly compensation by reason of being in need of aid and attendance pursuant to the provisions of 38 U.S.C.A. 1114(r)(1) have been met. 38 U.S.C.A. §§ 1114(l)(m)(n)(o)(p)(r)(1), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.350(d)(e)(3)(4), 3.352(b) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The appellant is entitled to SMC based upon the need for regular aid and attendance under section 1114(l) and the "m" rate of SMC under section 1114(p) from December 1993. This entitlement is the result of various RO and Board decisions through December 2002. In light of the basic requirements for consideration of the higher level of aid and attendance under section 1114(r)(1) the Board will report more recent medical information. Correspondence from the veteran, his spouse, his attorney primarily provide observations of his overall disabling manifestations that include nonservice-connected disabilities. The initial consideration for the benefit was made in October 2000 based upon correspondence form the veteran had his spouse. The VA examination for aid and attendance in January 1997 found the veteran had 20/40 and 20/80 visual acuity, his gait appeared normal but he required some assistance with dressing. He had no amputations but demonstrated poor balance although he could ambulate only a short distance without a walker or cane. Based on this evaluation the RO in May 1997 awarded basic aid and attendance from December 1993. A private audiology examination in April 2001 found bilateral moderately severe sensorineural hearing loss. Examination in October 2001 found severe hearing loss bilateral with speech recognition reduced approximately 50%. VA examination early in 2002 found hearing loss with aides worn and no reference to blindness or loss of use of any extremity. Private audiology reported in June 2002 showed the veteran had bilateral sensorineural hearing loss with poor speech discrimination. VA audiology in August 2002 found the average decibel threshold 72 decibels in the right ear and 70 decibels in the left ear. Speech recognition was 48 percent in the right ear and 26 percent in the left ear. The examiner found moderately reduced speech reception thresholds and moderate to severe reduction in speech discrimination. According to the December 2002 rating decision the numeric designation for hearing loss was XI for the left ear and VIII for the right ear that equated to 70 percent evaluation. WHS (initials), MD, stated in January 2003 that the veteran was getting increasingly weak and had problems with vision and hearing. JS, MD, also reported at this time that the veteran had progressively worsening hearing and that his wife had to escort him to medical visits and do quite a lot of the work at home. A January 2003 medical report noted left side loss of vision with a history of multiple strokes. CM, MD, supporting the application for home health care stated in March 2003 that the cardiomyopathy resulted in unsteady gait and weakness. A VA aid and attendance examination in April 2003 found that the veteran needed assistance with activities of daily living. He walked slowly moved both upper extremities. He used a walker at home. His bowel and bladder control was intact. It as noted that he was requesting a motorized scooter and that during the day his activities included looking though his mail. The veteran wrote in August 2003 that he had lost peripheral vision and use of the left arm due to his strokes and could not but a hearing aide into his left ear on his own. A September 2003 statement noted the veteran had an inoperable brain tumor and would require a motorized scooter or wheelchair to get around his home. Criteria The special monthly compensation provided by 38 U.S.C.A. § 1114(n) is payable for anatomical loss or loss of use of both arms at a level, or with complications, preventing natural elbow action with a prosthesis in place; anatomical loss of both legs so near the hip as to prevent use of a suitable prosthetic appliance, anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance; anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance with anatomical loss of one leg so near the hip as to present use of a prosthetic appliance; or anatomical loss of both eyes or blindness without light perception in both eyes. Amputation is a prerequisite except for loss of use of both arms and blindness with light perception in both eyes. If a prosthesis cannot be worn at the present level of amputation but could be applied if there were a reamputation at a higher level, the requirements of this paragraph are not met; instead, consideration will be given to loss of natural elbow or knee action. 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350(d). In addition to the statutory rates payable under 38 U.S.C.A. § 1114(l) through (n) and the intermediate or next higher rate provisions, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C.A. § 1114, or if already entitled to an intermediate rate to the next higher intermediate rate, but in the event higher than the rate for (o). In the application of this subparagraph, the single paramount disability independently ratable at 50 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C.A. § 1114(l) through (a) or the intermediate rate provisions. 38 C.F.R. § 1114(p); 38 C.F.R. § 3.350(f)(3). Determinations for entitlement under 38 U.S.C.A. § 1114(o) must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who has suffered loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness, requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitlement to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities such as anatomical loss or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis will not preclude maximum entitlement. Maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. 38 U.S.C.A. § 1114(o); 38 C.F.R. § 3.350(e)(3)(4). The special monthly compensation provided by 38 U.S.C.A. § 1114(l) is payable for anatomical loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance or permanently bedridden are contained in § 3.352(a). Where possible, determinations should be on the basis of permanently bedridden rather than for need for aid and attendance (except where 38 U.S.C.A. § 1114(r) is involved) to avoid reduction during hospitalization where aid and attendance is provided in kind. The special monthly compensation provided by 38 U.S.C.A. § 1114(o) is payable for any of the following conditions: Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C.A. § 1114(l) through (n); Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service- connected) in combination with service-connected blindness with bilateral visual acuity 5/200 or less; service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one or both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. Paraplegia, paralysis of lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C.A. § 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. An intermediate rate authorized by this paragraph shall be established at the arithmetic mean, rounded to the nearest dollar, between the two rates concerned. 38 U.S.C.A. § 1114(p). In addition to the statutory rates payable under 38 U.S.C.A. § 1114(l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher statutory rate under 38 U.S.C.A. § 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C.A. § 1114(l) through (n) or the intermediate rate provisions outlined above. A veteran receiving the maximum rate under 38 U.S.C.A. § 1114(o) or (p) who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. Determinations of this need is subject to the criteria of § 3.352. The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C.A. § 1114(o) or (p), or was based on an independent factual determination. The amount of the additional allowance payable to a veteran in need of regular aid and allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C.A. § 1114(r)(2). The higher level aid and attendance allowance authorized by 38 U.S.C.A. § 1114(r)(2) is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C.A. § 1114(r)(1). Determinations as to need for aid and attendance must be based on actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: Inability of claimant to dress or undress himself/herself or to keep himself/herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his/her daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. (b) Basic criteria for the higher level aid and attendance allowance. (1) A veteran is entitled to the higher level aid and attendance allowance authorized by Sec. 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p). (ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section. (iii) The veteran needs a ``higher level of care'' (as defined in paragraph (b)(2) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. (2) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health- care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. (3) The term ``under the regular supervision of a licensed health-care professional'', as used in paragraph (b)(2) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. (4) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. (5) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial. (c) Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. 3.352(b) When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or 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, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Preliminary Matter: Duties to Notify & to Assist At the outset, it should be noted that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, 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 had 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). 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, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). The Board, however, is satisfied that all necessary development pertaining to the issue of entitlement to a higher rate of special monthly compensation by reason of being in need of aid and attendance pursuant to the provisions of 38 U.S.C.A. § 1114 (r)(1). The Board is confident in this assessment because the evidence as presently constituted is sufficient in establishing a full grant of benefits. Therefore, any outstanding development not already conducted by VA is without prejudice; hence, any deficiencies in the duties to notify and to assist constitute harmless error. Additional development by the Veterans Benefits Administration Appeals Management Center (VBA AMC) would only serve to further delay resolution of the claim. Bernard, supra. Higher Level Aid and Attendance As the Board noted earlier, service connection has been granted for anxiety and cardiovascular disease each rated as 100 percent disabling. Service-connected bilateral hearing loss is rated 70 percent and chronic obstructive pulmonary disease is rated 60 percent. Tinnitus is rated as 10 percent disabling. The veteran is already in receipt of SMC by reason of being in need of regular aid and attendance; the basic entitlement provided under 38 U.S.C.A. § 1114(l). As summarized earlier, the appellant contends he has indeed established a factual need for the higher-level aid and attendance provided by law on the basis of his level of care required constantly. The Board does not dispute, and the record is not to the contrary in this regard, that the veteran is very seriously as well as severely disabled due to his service-connected disabilities. It is for this reason that he is rated as totally disabled due to his service-connected disabilities, and has been granted SMC on the basis of his need for the aid and attendance of another person to assist him in accomplishment of daily life processes and self-care on a regular basis. He also receives SMC at the "m" rate on account of the two 100 percent disabilities principally that allow for a higher intermediate rate. Entitlement has been established to SMC under 38 U.S.C.A. § 1114(p) and 38 C.F.R. § 3.350(f)(4) at the rate equal to subsection (m) on account of the need for aid and attendance with additional disability, heart disease, independently ratable at 100 percent. The record is clearly demonstrative in showing that he has helplessness due to his service-connected heart disease rated 100 percent disabling aside from his service-connected anxiety reaction and, as the Board noted above, his SMC has been established pursuant to 38 U.S.C.A. § 1114(p) and 38 C.F.R. § 3.350(f)(4). The Board's application of the pertinent governing criteria to the facts and circumstances of this case permits a grant of entitlement to a higher rate of special monthly compensation by reason of being in need of aid and attendance pursuant to the provisions of 38 U.S.C.A. § 1114(r)(1). ORDER Entitlement to a higher rate of special monthly compensation by reason of being in need of aid and attendance pursuant to the provisions of 38 U.S.C.A. § 1114(r)(1) is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND This claim must be afforded expeditious treatment by the Veterans Benefits Administration (VBA) AMC. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (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 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. 8.43 and 38.02. As the Board noted earlier, the current appeal arose from a December 2002 rating decision that included an initial rating for bilateral hearing loss and tinnitus. The veteran's correspondence in November 2003 received within a year's of the notice of the rating determination is reasonably construed as a notice of disagreement with the initial rating (NOD) as it refers to an "appeal" to the Board of the initial rating. Where there has been an initial RO adjudication of a claim and a notice of disagreement is filed, the claimant is entitled to a statement of the case, and the failure to issue such is a procedural defect requiring remand. Godfrey v. Brown, 7 Vet. App. 398 (1995); Manlincon v. West, 12 Vet. App. 238 (1999). The Board observes that additional due process requirements may be applicable as a result of the enactment of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). Accordingly, the case is remanded to the VBA AMC for further action as follows: 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 issue a statement of the case addressing the issue of the initial evaluation for hearing loss and tinnitus. The appellant should be advised of the need to timely file a substantive appeal if he desires appellate review. 3. The VBA AMC must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A and any other applicable legal precedent, in particular Quartuccio v. Principi, 16 Vet. App. 183 (2002). A record of his notification must be incorporated into the claims file. 4. The VBA AMC should then conduct any necessary development brought about by the appellant's response and issue a supplemental statement of the case, if necessary. 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 appellant until the VBA AMC notifies him. ____________________________________________ 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