Citation Nr: 0404516 Decision Date: 02/18/04 Archive Date: 02/27/04 DOCKET NO. 03-02 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine, with headaches, secondary to service-connected melioidosis. 2. Entitlement to service connection for DJD of the lumbosacral spine, secondary to service-connected melioidosis. 3. Entitlement to service connection for DJD of the right knee, secondary to service-connected melioidosis. 4. Entitlement to service connection for DJD of the left knee, secondary to service-connected melioidosis. 5. Entitlement to service connection for pulmonary emboli, secondary to service-connected melioidosis. REPRESENTATION Appellant represented by: Colorado Division of Social Services ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from November 1967 to July 1970. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado (RO), which, in pertinent part, granted service connection for melioidosis with status-post splenectomy, and for colosplenic fistula, status-post partial colectomy and resection of distal pancreas for pancreatitis due to melioidosis; and denied service connection for DJD of the cervical spine with headaches, DJD of the lumbosacral spine, DJD of the right knee, DJD of the left knee, and recurrent pulmonary emboli, each secondary to melioidosis FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The competent medical evidence shows that the veteran's DJD of the cervical spine was caused by his service-connected melioidosis. 3. The competent medical evidence shows that the veteran's DJD of the lumbosacral spine was caused by his service- connected melioidosis. 4. The competent medical evidence shows that the veteran's DJD of the right knee was caused by his service-connected melioidosis. 5. The competent medical evidence shows that the veteran's DJD of the left knee was caused by his service-connected melioidosis. 6. The competent medical evidence shows that it is at least as likely as not that the veteran's recurrent pulmonary emboli were caused by his service-connected melioidosis. 7. The preponderance of the competent medical evidence shows that the veteran's headaches are the result of muscle contraction; headaches were not caused or aggravated by melioidosis. CONCLUSIONS OF LAW 1. Service connection for DJD of the cervical spine, secondary to service-connected melioidosis, is warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2003). 2. Service connection for DJD of the lumbosacral spine, secondary to service-connected melioidosis, is warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2003). 3. Service connection for DJD of the right knee, secondary to service-connected melioidosis, is warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2003). 4. Service connection for DJD of the left knee, secondary to service-connected melioidosis, is warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2003). 5. Service connection for a history of recurrent pulmonary emboli, secondary to service-connected melioidosis, is warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2003). 6. Entitlement to service connection for headaches, secondary to service-connected melioidosis, is not warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to assist the appellant in the development of facts pertinent to his claim. There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b) (2003). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2003). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (2003). In the instant case, the appellant filed his claim that is the subject of this appeal before the enactment of the VCAA. The caselaw relating to the applicability of the VCAA under this circumstance has been somewhat inconsistent but the regulations issued to implement the VCAA are expressly applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). See also VAOPGCPREC 7-2003. Precedent opinions of the chief legal officer of the Department, and regulations of the Department, are binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002). Therefore, for purposes of the present case, the Board will assume that the VCAA is applicable to claims or appeals pending before the RO or the Board on the date of its enactment. Thus, compliance is required with the notice and duty to assist provisions contained in the new law. In light of the favorable decisions set forth below with regard to the veteran's claims for secondary service connection for DJD and pulmonary emboli, the Board concludes that no additional development is required for these issues. With regard to the veteran's claim for secondary service connection for headaches, the Board notes at the outset that the United States Court of Appeals for Veterans Claims (Court) recently held that such specific notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. Jan. 13, 2004). The Board finds that VA's duties to the veteran under the VCAA have been fulfilled. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103. The Board concludes that the discussions in the July 2001 rating decision, the January 2003 decision, and the January 2003 statement of the case (SOC) adequately informed him of the information and evidence needed to substantiate his claim. The Board observes that the January 2003 SOC referred to the VCAA, and an April 2001 VCAA notice letter informed him of the VCAA and its implementing regulations, including that VA would assist him in obtaining government or private medical or employment records, provided that he sufficiently identified the records sought and submitted releases as necessary. Thus, the Board finds that the veteran was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In this case, the RO has obtained the veteran's service medical records and all available post-service medical records, including VA and private treatment records. The veteran has not indicated that there are any additional post-service medical records available to substantiate his claim. In a January 2003 VA Form 9, the veteran requested that his claim be forwarded to the Board for review as soon as possible. The Board notes that in a decision promulgated on September 22, 2003, Paralyzed Veterans of America (PVA) v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Federal Circuit made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003). The Federal Circuit found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Moreover, Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. Jan. 13, 2004) requires that VCAA notice precede an "initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim...providing such notice after a claimant has already received an initial unfavorable AOJ determination on a service-connection claim, i.e., a denial of the claim, would largely nullify the purpose of the notice and prejudice the claimant by forcing him or her to overcome an adverse determination." In this case, however, during the pendency of his claim the veteran has been afforded numerous opportunities to submit information relating to any additional evidence that may be available. He has failed to identify any sources of additional outstanding evidence or indicate that he was in the process of obtaining additional evidence. On the contrary, in a January 2003 VA Form 9 the veteran requested that his claim be forwarded to the Board for review as soon as possible. (emphasis added.) It is clear that there is no additional relevant evidence that has not been obtained and that the veteran desires the Board to proceed with its appellate review. As noted above, the instant decision grants five of the veteran's six claims for service connection. As to the sole remaining issue of secondary service connection for headaches, based on the foregoing discussion, the Board finds that any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, the VCAA does not apply). Thus, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled to the extent possible. No additional assistance or notification to the veteran is required based on the facts of the instant case, there has been no prejudice to the veteran that would warrant a remand, and his procedural rights have not been abridged. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Factual Background The veteran maintains, in substance, that he suffers from DJD of the cervical spine, with headaches, as well as of the lumbosacral spine and both knees as a result of his service- connected melioidosis. He also contends that his service- connected melioidosis has caused recurrent pulmonary emboli. The Board notes that the veteran's claims file contains a variety of VA and private treatment records. The Board will address only those records that are pertinent to the veteran's claims. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Various treatment records demonstrate that the veteran incurred a left tibial fracture in December 1997 in an on- the-job accident. In March 1998, during physical therapy for this left knee injury, he hit his head on a wall and injured his neck. The Chief of Infectious Diseases of the Denver VA Medical Center (VAMC) stated in a May 2001 letter that the veteran had suffered from melioidosis (Burkholderia pseudomallei infection) for more than 15 years. An attached May 2001 progress note provides that chronic relapsing melioidosis most likely caused the veteran's 1985 pleuropulmonary disease, and almost certainly caused his splenic abscess in 1986. The report of a May 2001 VA examination provides that the veteran's medical records were reviewed, and recounts the veteran's post-service medical history. In 1985, he was diagnosed with a pulmonary embolus. In 1986, the veteran was hospitalized for several weeks with fevers, myalgias and dizziness. The diagnosis was subphrenic abscess on the left. He received incision and drainage and intravenous antibiotics. Pseudomonas cepacia was cultured from the abscess. The veteran states that he improved and the frequency and severity of the fevers decreased. Thereafter, he had fevers three to five times a year. In 1989, he was hospitalized with a recurrent pulmonary embolus and hemoptysis with pleuritic chest pain. In 1993 and 1996 he was hospitalized for chest pain, with pulmonary embolus ruled out each time. In September 2000, the veteran underwent surgical repair of a colonic splenic fistula, resection of the partial colon and of the tail of the pancreas, and a splenectomy. Cultures were positive for Burkholderia pseudomallei, which the veteran's infectious disease physician believed was the actual organism identified in 1985 (sic). Currently, the veteran's formal diagnosis was melioidosis. The veteran ceased smoking cigarettes in June 1998, with a history of one to two packs a day for 30 years. He had never worked in a mine, been exposed to asbestos or had tuberculosis. It was further noted in the May 2001 examination report that the veteran complained of daily constant headaches, present since a 1998 injury during physical therapy when he injured his neck. The headaches tended to fluctuate in intensity, and were bi-temporal, occipital and could be stabbing over either eye. In the past, the headaches were only associated with his fevers. The veteran complained of past occasional neck pain that was mostly associated with fevers, and then would resolve. Constant neck pain and chronic tingling bilaterally in the fingertips began with the 1998 (head and neck) injury. The pain was daily, in the neck and upper back. Results of current physical examination were provided, along with pulmonary function test results and radiographic reports. The pertinent diagnosis was melioidosis, with history of splenectomy, partial colectomy and resection of the pancreas secondary to colonic splenic fistula with residual scar; muscle contraction headaches; DJD of the bilateral knees; history of pulmonary embolus; DJD of the cervical spine with limited motion; and DJD of the lumbosacral spine with limited motion. The examiner opined that the veteran acquired melioidosis while working with soil in Vietnam. He did not have evidence of an active infection. The VA examiner offered an addendum in June 2001, in which he stated that he had reviewed relevant medical literature, which did not indicate that melioidosis produces pulmonary emboli. The VA examiner again reviewed some of the veteran's pertinent history. He concluded that the veteran's DJD appeared to be more likely than not due to age-related phenomena. There was no evidence to suggest an infectious process involving the bone that would lead to accelerated degeneration. The examiner also opined that the veteran's pulmonary embolus was not related to melioidosis, and that in 1985 the veteran had suffered from pulmonary embolus and not melioidosis. Additional pulmonary function tests were needed to verify the existence of a restrictive process. There were several other etiologies that could have produced a restrictive process. If a restrictive process was confirmed, it was more likely than not that both pulmonary embolus and chronic exposure to nicotine were contributing factors. The Chief of Infectious Diseases of the Denver VAMC stated in a December 2001 letter that the veteran's pulmonary embolism was more likely than not due to his underlying chronic infection. VA progress notes include a May 2002 impression of melioidosis made by the Chief of Infectious Diseases. She also opined that the veteran's current neck symptoms were due to cervical spondylosis. There was no evidence of active infection at that site but it was possible that old bony involvement with his melioidosis has contributed to the DJD. In a July 2002 progress note, the Chief of Infections Diseases opined that it was as likely as not that the veteran's DJD was related to his melioidosis and chronic inflammation. An August 2002 progress note by a different VA physician assesses the veteran with melioidosis, hypertension and chronic joint pain, and observes that there was some suggestion by the Chief of Infections Diseases that the chronic arthralgias may be due in part to his chronic melioidosis, as well as significant degenerative disease. The note also provides diagnosis of history of multiple pulmonary emboli in 1989, 1993 and 1998 with no symptoms at this time. A January 2002 letter from G.L.C., Ph.D., D.O., relates that he had seen the veteran for two injuries, an earlier right knee injury and injuries sustained in December 1997 when the veteran fell at a construction site. Dr. G.L.C. opined that the veteran had a chronic suppurative infection of melioidosis that had resulted in numerous problems, in addition to the veteran's service-connected status-post pelcectomy and colosplenic fistula status-post partial colectomy and resection of the distal pancreas for pancreatitis. The private physician stated that he had treated patients from the Vietnam War who had melioidosis. At that time, while treating a patient with melioidosis, he was instructed to consider that every problem or abnormal finding was a manifestation of a chronic suppurative infection. He noted that there were several ways that melioidosis could be characterized, and that the veteran's melioidosis was characterized as a chronic suppurative infection. Such infection could involve any of the organs of the body, typically including the joints, intestines, lymph nodes, skin, brain, liver, lungs, bones and spleen. He had seen the veteran 19 times for the December 1997 injury, with his predecessor at the medical office having seen the veteran 16 times. This was an excessive number of visits for the final diagnosis of chronic neck pain with the clinical appearance of spondylosis and degenerative disc disease. The [original December 1997] injury was a left plateau tibia fracture status-post debridement. The veteran required a significant length of time to recover, at least 50 percent longer than would be expected. This included the fact that he had a pulmonary embolus, status-post left knee surgery. He also complained of other problems while he was being seen for this specific injury, including mechanical low back pains, left shoulder impingement problems, bilateral carpal tunnel syndrome symptoms, mental confusion, as well as numerous other complaints including tendonitis, visual problems, etc. The veteran underwent numerous evaluations, including a neurologist's evaluation for mental confusion. This was extremely unusual for a patient presenting originally with a left tibial plateau fracture and mechanical injuries such as neck and back pains. Dr. G.L.C. said that in retrospect it was now obvious that the veteran had a chronic suppurative infection of melioidosis. The veteran was not "cured" status-post fistula repair, splenectomy, colectomy and resection of the distal pancreas. He believed that the veteran had always had numerous complaints of muscle and joint pains which could not be explained by the injury. In an April 2002 letter, H.M.P., M.D., provides that he had treated the veteran since 1991. The veteran had suffered recurrent episodes of acute fever, malaise and myalgias of unknown origin. After two or three similar episodes, a deeper, more occult cause than a virus was suspected. A GI doctor subsequently found that the veteran had Burkholderia Pseudomallei, probably acquired during work with soil in Vietnam. Dr. H.M.P. stated that in retrospect, he believed that the infection was the cause of the veteran's recurrent bouts of flu-like illness. It had probably contributed to some of his arthritic complaints, which were advanced for his age and probably due to the chronic, recurrent, inflammatory nature of the illness. The veteran was provided a VA examination in March 2002. The examiner states that the veteran's claims file was available and reviewed. The examiner sets forth a detailed review of the veteran's history, including that he had persistent chronic joint pains involving primarily his neck, low back, bilateral knees, left shoulder and elbows. The veteran additionally had a history of hemoptysis and pulmonary embolus, plearutic chest pain, pneumonia and right lower lobe density treated as an infection. He had a pulmonary embolus in 1985 with another in 1998, which was felt to be secondary to recent knee surgery. After a partial colotomy and a splenectomy in September 2000, the veteran was confirmed to have melioidosis. He complained of current intermittent fevers, headaches and neck pain, shortness of breath, decreased strength of the upper extremities, and fatigue and dizziness with minimal exertion and joint pain. The joint pain worsened with fevers but was present at all times and persistent. He denied redness, inflammation or warmth that could suggest an inflammatory process. The examiner set forth the results of physical examination and attached reports of pulmonary function tests and radiographic examinations. The final diagnoses were melioidosis, chronic infection, status-post splenectomy, colosplenic fistula, and partial pancreatic resection; with associated arthritis affecting multiple joints, status-post pulmonary abscess and recurrent lung infections. The examiner opined that the veteran's melioidosis was an active condition, characterized by remitting low-grade fevers, chills and night sweats. In addition, the veteran reported arthralgias involving various joints. There was no evidence that his present respiratory complaints were a manifestation of an active disease process. The examiner stated that he had reviewed various notes and opinions from a variety of the veteran's treating physicians, as well as literature. There was no disagreement that the systemic condition of melioidosis could lead to arthritic manifestations. However, in the veteran's case, the issue was complicated by past trauma and radiographic evidence of a degenerative process in multiple joints. After reviewing the veteran's history and records, there appeared to be some evidence that joint pains involving his knees and left shoulder preceded traumatic injuries and likely preceded the degenerative process. The first documented complaints pertaining to his spine, however, appeared to come after traumatic incidents and there was no clear documentation of complaints in these regions in relation to infectious symptoms. There was no evidence of osteomylitis or septic joints. A review of the literature and evaluation of the veteran's history of recurrent pulmonary emboli did not reveal a direct correlation between his chronic infection and pulmonary emboli. The veteran did have documented intrapulmonary infections and a lung abscess which were as likely as not related to melioidosis but were not active. Pulmonary function tests from October 2002 revealed very mild, if any, obstructive disease. More importantly, lung volume studies did not suggest significant restrictive lung disease pattern. Legal Analysis A claimant with active service may be granted service connection for disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304 (2003). Secondary service connection may be granted for a disability which is proximately due to or the result of an established service- connected condition. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). It is the Board's responsibility to determine the probative weight of evidence. See Hayes v. Brown, 5 Vet. App. 60, 69- 70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Based on a thorough review of the evidence, the Board finds that the evidence is at least in equipoise as whether the veteran's DJD of the cervical spine, lumbosacral spine, right knee and left knee were caused by his service-connected melioidosis. The Board finds that the evidence for and against the veteran's claim for secondary service connection for pulmonary emboli is relatively evenly balanced. In applying the benefit of the doubt doctrine, the Board finds that service connection is warranted for these disabilities. The Board additionally finds that the preponderance of the evidence is against the veteran's claim for secondary service connection for headaches. The Board acknowledges that there is some competent medical evidence against the veteran's claim for secondary service connection for DJD of the claimed joints. The June 2001 VA examination report and addendum and the March 2002 VA examination report each found that the veteran had melioidosis. This evidence indicates that his DJD was due to age-related phenomena and past trauma, and that there was no evidence of osteomylitis or septic joints, although the March 2002 VA examination also includes the notation of melioidosis... with associated arthritis affecting multiple joints... (italics added). The Board finds that these opinions have probative value, as they are offered by a physician, are based on a review of the record and examination of the veteran, and supported by a rationale. On the other hand, several of the veteran's treating physicians link the veteran's melioidosis to his DJD of multiple joints. Dr. G.L.C. opined that the veteran's melioidosis affected multiple joints. As a rationale, Dr. G.L.C. pointed out his own experience with patients suffering from melioidosis, as well as the fact that the veteran's recovery from trauma was longer than would be expected and that he had numerous muscle and joint pains which could not be explained by trauma. It is pertinent to notes that secondary service connection may be found where a service- connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). Dr. H.M.P. stated that the veteran's melioidosis, and its chronic, recurrent, inflammatory nature, had contributed to some of his arthritic complaints, which he noted were advanced for his age. The VA Chief of Infectious Diseases at the Denver VAMC provides that it was as likely as not that the veteran's DJD was related to his melioidosis and chronic infection. The Board finds that these positive opinions are at least as probative as the evidence against the veteran's claims. They are offered by physicians, based in part on actual treatment of the veteran along with the long-term knowledge of his disability that comes from such treatment. They are also based on a review of at least some of the veteran's relevant medical records in the claims file and supported by a rationale. The Board finds it significant that Dr. G.L.C. has experience with melioidosis patients, and that the VA Chief of Infectious Diseases has obvious experience and expertise to offer opinions in this case. Thus, secondary service connection is warranted for DJD of the cervical spine, lumbosacral spine, right knee and left knee, secondary to service-connected melioidosis. Turning to the veteran's claim for secondary service connection for pulmonary emboli, the Board acknowledges that the June 2001 VA examination report and addendum and the March 2002 VA examination report each set forth competent medical opinions that the veteran's service-connected melioidosis did not result in his pulmonary emboli. Again, these opinions have probative value, as they are offered by a physician and are based on a review of the record and examination of the veteran. At the same time, the Board points out that in a May 2001 progress note, the VA Chief of Infectious Diseases indicated that melioidosis most likely caused the veteran's 1985 pleuropulmonary disease and added that the veteran's underlying chronic infection more likely than not caused his pulmonary embolism. This supportive opinion is at least as probative as the evidence against the veteran's claim as it was proffered by a physician with obvious expertise and experience, and is based on treatment of the veteran and long-term knowledge of his condition. Thus, secondary service connection is warranted for pulmonary emboli. The Board is cognizant of the absence of medical evidence of a current pulmonary embolus but, given the recurrent nature of the condition, service connection is warranted. The present or absence of symptoms secondary to a recurrent pulmonary emboli will be considered by the RO in assigning the appropriate rating. Turning to the veteran's claim for secondary service connection for headaches, the Board notes that the sole competent medical evidence regarding their etiology, the May 2001 VA examination report, relates them to muscle contraction. The Board parenthetically notes that any complaint of head pain radiating from the neck or cervical spine region will be considered in assigning the appropriate rating for the veteran's now service connected DJD of the cervical spine. There is no competent medical evidence linking the headaches or muscle contractions to the veteran's service-connected melioidosis. As a layperson, the veteran is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu, supra. Thus, his own opinion does not constitute competent evidence as to the critical issue in this case of etiology. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for DJD of the cervical spine, secondary to service-connected melioidosis, is granted. Service connection for DJD of the lumbosacral spine, secondary to service-connected melioidosis, is granted. Service connection for DJD of the right knee, secondary to service-connected melioidosis, is granted. Service connection for DJD of the left knee, secondary to service-connected melioidosis, is granted. Service connection for pulmonary emboli, secondary to service-connected melioidosis, is granted. Service connection for headaches, secondary to service- connected melioidosis, is denied. ____________________________________________ R. F. WILLIAMS 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