Citation Nr: 0407222 Decision Date: 03/19/04 Archive Date: 03/30/04 DOCKET NO. 02-08 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for residuals of injury, laminectomy, low back. 2. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for enucleation of the right eye secondary to trauma. 3. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for residuals of a left inguinal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Pitts, Counsel INTRODUCTION The veteran served on active duty from November 1952 to October 1954. The claims file contains a record of a June 1984 decision of the Board of Veterans' Appeals (Board) wherein service connection was denied for a postoperative low back disability, enucleation of the right eye, and residuals of left inguinal hernia surgery, respectively. The claims file contains a record of a February 1989 decision of the RO wherein service connection was denied for a back condition and a left inguinal hernia. This matter comes before the Board on appeal of a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at Indianapolis, Indiana. The RO denied reopening the previously denied claims of entitlement to service connection for residuals of laminectomy secondary to trauma, enucleation of the right eye secondary to trauma, and residuals of a left inguinal hernia. A personal hearing was held at the RO before a Decision Review Officer in June 2002. A transcript of the hearing is of record. The Board notes that the transcript of the June 2002 personal hearing has been accepted as a notice of disagreement initiating the appeals of the RO's denial of the claims concerning enucleation of the right eye secondary to trauma and residuals of a left inguinal hernia. Tomlin v. Brown, 5 Vet. App. 355 (1993). The date of such notice of disagreement is the date on which the hearing transcript was certified. Id. After the date of certification of the hearing transcript, the RO issued a statement of the case addressing these claims and that concerning residuals of injury, laminectomy, low back, which had been placed in appellate status by a notice of disagreement filed in February 2002. After receiving the statement of the case in June 2002, the veteran filed a timely substantive appeal document perfecting his appeals of the denials of all three claims. Whether "new and material" has been presented to reopen a previously denied claim is subject to de novo adjudication by the Board when the claim comes before it on appeal. Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Following the decision reopening the claims, the corresponding claims of entitlement to service connection for the three disabilities at issue on a de novo basis are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you, the veteran, if further action is required on your part. FINDINGS OF FACT 1. The RO denied entitlement to service connection for a postoperative low back disability and the residuals of left inguinal hernia surgery when it issued an unappealed final rating decision in February 1989. 2. The Board denied entitlement to service connection for enucleation of the right eye secondary to trauma when it issued a final decision in June 1984. 3. Evidence submitted since the February 1989 rating decision is new, not cumulative or redundant of the evidence at the time of the prior final denial of the claims sought to be reopened; and, does raise a reasonable possibility of substantiating the claims. 4. Evidence submitted since the June 1984 decision of the Board is new, not cumulative or redundant of the evidence at the time of the prior final denial of the claim sought to be reopened; and, does raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Evidence submitted since the February 1989 rating decision, wherein the RO denied entitlement to service connection for a postoperative low back disability and the residuals of left inguinal hernia surgery, is new and material, and the veteran's claims for that benefit are reopened. 38 U.S.C.A. §§ 5104, 5107, 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.160(d), 20.1103 (2003). 2. Evidence submitted since the June 1984 decision, wherein the Board denied entitlement to service connection for enucleation of the right eye secondary to trauma, is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5107, 5108, 7104(b) (West 2002); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1100, 20.1105 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background At the time of the February 1989 rating decision wherein the RO denied the claims of entitlement to service connection for a postoperative low back disability and the residuals of left inguinal hernia surgery, the evidentiary record consisted of VA treatment records dated in 1978, 1979 and 1980, private medical treatment records (including a physician's statement) dated between 1976 and 1983, a VA examination report dated in August 1980, Morning Reports dated from February to April 1953, Office of the Army Surgeon General (SGO) reports, non- medical (lay) statements, Social Security Administration (SSA) notices, a written statement by the veteran that he sent to his Congressional representative in 1987, and the transcript of a personal hearing that was held in December 1983 before a hearing officer at the RO. Some of the evidence that was of record at the time of the February 1989 rating decision was relevant to the claim for service connection for a postoperative low back disability. A VA hospital report showed that the veteran had undergone a bilateral L4-5 laminectomy and discoidectomy in 1979, and VA treatment records dated in 1979 referred to problems that he was having with his low back before having the surgery. The August 1980 VA examination report contained an assessment of possible lower back strain as a residual of the lumbar surgery. VA treatment records dated in 1979 and 1980 referred to low back pain that the veteran was having after the lumbar surgery; an April 1980 treatment note reflected that he said that his symptoms had worsened after he injured his back two years before. Private medical records prepared by MLM, MD, and dated from 1976 to 1983 reflected that on several occasions, the veteran received medical attention for low back problems, to include pain and limitation of motion. An April 1981 statement of MLM, MD, indicated that the physician had been treating the veteran during the past four or five years for lumbar pain that radiated down his legs and was aggravated by standing. A radiology report indicated that an x-ray performed at the request of this physician in May 1981 identified post- surgical changes in the L4-5 area with moderate narrowing of the L4-5 intervertebral disc space and slight-to-mild degenerative change in the lumbar spine. The SSA notices showed that disability benefits had been awarded to the veteran because of back problems but were terminated in 1982 upon the agency's determination that he was no longer disabled as defined by applicable law. Morning Reports showed that the veteran had been in the hospital on his unit's base at Fort Leonard Wood, Missouri on two occasions in February and March 1953, respectively, and absent from duty for 30 days because of sickness in April 1953, but these reports did not identify the medical conditions in question. The SGO records did not note any injury, or treatment, of the back. The transcript of the personal hearing held in December 1983 shows the veteran testified that he had injured his low back while stationed in France during service in 1954 when he fell from the top of a building where he was working, that he was taken to a clinic to be checked, and that his prescription was two weeks of bed rest and use of a plywood board under his mattress for the balance of the year. The written statement submitted by the veteran to his Congressional representative in 1987 contained the same account. Some of the evidence that was of record at the time of the February 1989 rating decision was relevant to the claim for service connection for the residuals of left inguinal hernia surgery. The August 1980 VA examination report shows that examination of the external genitalia revealed normal testes. The private medical records prepared by MLM, MD, and dated from 1976 to 1983 did not show that the veteran received any medical attention for a genitourinary condition. The SSA notices did not refer to any disability related to an inguinal hernia. The Morning Reports showed that the veteran had been in the hospital on his unit's base at Fort Leonard Wood, Missouri on two occasions in February and March 1953, respectively, and had been absent from duty for 30 days in April 1953 because of sickness, but these reports did not identify the medical conditions in question. The SGO records reflected that in February 1953, the veteran had undergone an inguinal hernioplasty and an orchiopexy after receiving diagnoses of inguinal hernia with a finding that it had existed prior to service, complications of surgical treatment, and torsion of testis. The transcript of the personal hearing held in December 1983 show the veteran testified that he had undergone hernioplasty and the orchiopexy during service; that he had refused to have a second inguinal surgery during service; that he had returned to the hospital on base for a check-up after 30 days of sick leave and was given light duty; and that he had experienced no sexual feeling at all since 1979. The written statement submitted by the veteran to his Congressional representative in 1987 contained the same account. In a written statement provided in 1982, a former service comrade asserted that the veteran had undergone hernia surgery at Fort Leonard Wood around the beginning of 1953 while they were both posted there. In a written statement provided in 1982, his mother averred that the veteran had been sent home on "get well" leave after having surgery around the beginning of 1953. In a written statement provided in 1982, his wife averred that the veteran had undergone "his two hernia operations" around the beginning of 1953. At the time of the June 1984 decision wherein the Board denied the claim of entitlement to service connection for enucleation of the right eye secondary to trauma, the evidentiary record consisted of the VA treatment records dated in 1978, 1979 and 1980, the private medical treatment records (including a physician's statement) dated between 1976 and 1983, the VA examination report dated in August 1980, the Morning Reports dated from February to April 1953, non-medical (lay) statements, Social Security Administration (SSA) notices, and the transcript of a personal hearing that had been held in December 1983 before a hearing officer at the RO. Some of the evidence that was of record at the time of the June 1984 decision of the Board was relevant to the claim for service connection for enucleation of the right eye secondary to trauma. The VA treatment records show that in November 1978, the veteran underwent surgery on his right eye for enucleation and an orbital implant. The August 1980 VA examination report noted that examination of the eyes revealed the presence of a right eye prosthesis, and it stated a diagnosis of status postoperative removal of right eye with prosthesis. The private medical records prepared by MLM, MD, and dated from 1976 to 1983 noted that the veteran had undergone removal of his right eye in 1978, and it was observed in the April 1981 physician's statement that he had no right eye vision. The SSA notices did not refer to any disability that was related to the right eye. Morning Reports showed that the veteran had been in the hospital on his unit's base at Fort Leonard Wood, Missouri on two occasions in February and March 1953, respectively, and absent from duty for 30 days because of sickness in April 1953, but these reports did not identify the medical conditions in question. The SGO records did not note any injury, or treatment, of the right eye. The transcript of the personal hearing held in December 1983 shows the veteran testified that he had injured his right eye during service, after returning to duty from the sick leave that he took after his hernia surgery, that trauma to the right eye occurred when as ordered by his superiors, he fired a bazooka equipped with a site for the right eye but using his left eye to aim, that he was taken to the hospital with a swollen and bleeding face and nose, told that he should have surgery on his right eye, but he refused the surgery. Evidence introduced into the claims file after the February 1989 rating decision denying the claims for service connection for service connection for a postoperative low back disability and the residuals of left inguinal hernia surgery consists of VA medical treatment records dated from September 2000 to April 2001, including the report of a magnetic resonance imaging (MRI) study of the lumbar spine dated in September 2000, written statements by the veteran dated in March 1990 and December 2001, and the transcript of a personal hearing that was held in June 2002 before a Decision Review Officer at the RO. Evidence introduced into the claims file after the June 1984 decision of the Board denying the claim for service connection for enucleation of the right eye secondary to trauma consists of that added after the February 1989 rating decision, the written statement by the veteran that he sent to his Congressional representative in 1987, annotated photographs said to have been taken of the veteran during his service, and the SGO reports. Criteria Materiality & Finality An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, becomes final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160(d). A claim disallowed by the Board may not be reopened on the same factual basis. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2003). When an appellant requests that a claim be reopened after an appellate decision has been promulgated and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made, and if it is, as to whether it provides a basis for allowing the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 20.1105 (2003). A determination by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. When the Board affirms a determination of the agency of original jurisdiction, such determination is subsumed by the final appellate decision. 38 U.S.C.A. §§ 6104, 7105; 38 C.F.R. §§ 20.1103, 20.1104. A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusion based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 2002). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 3.105. 38 C.F.R. § 3.104(a). When a claim to reopen is presented under section 5108, the Secretary must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). In Hodge, the United States Court of Appeals for the Federal Circuit (CAFC) noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Id, at 1363. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Hickson v. West, 12 Vet. App. 247 (199); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Whether "new and material" has been presented sufficient to reopen a previously denied claim is subject to de novo adjudication by the Board when the claim comes before it on appeal. Barnett v. Brown, 83 F. 3d at 1383. New and material evidence is defined as evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). It has been held that, in accordance with 38 C.F.R. § 3.156, evidence is new and material if it (1) was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (2) is probative of the issue at hand; and (3) is significant enough, either by itself or in connection with other evidence in the record, that it must be considered to decide the merits of the claim. See Anglin v. West, 203 F. 3d 1343, 1345-1346 (Fed. Cir. 2000) (upholding the first two prongs of the Cohen new and materiality test while defining how materiality is established (the third prong as listed above)); see also Shockley v. West, 11 Vet. App. 208 (1998); Evans v. Brown, 9 Vet. App. 273, 283 (1996); Colvin v. Derwinski, 1 Vet. App. 171 (1991). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v. West, 12 Vet. App. 369 (1999), the United States Court of Appeals for Veterans Claims (CAVC) held that the prior holdings in Justus and Evans that the evidence is presumed to be credible were not altered by the CAFC decision in Hodge. The Board notes that 38 C.F.R. § 3.156 was recently amended, and that the standard for finding new and material evidence has changed as result. 66 Fed. Reg. 45,620, 45,630 (August 29, 2001) (38 C.F.R. § 3.156(a)). This change in the law is applicable in this case because the veteran's claim was filed in December 2001, after August 29, 2001, the effective date of the amendment. 66 Fed. Reg. 45,620, 45,629 (August 29, 2001). General Service Connection To establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If not shown in service, service connection may be granted for osteoarthritis if shown disabling to a compensable degree during the first post service year. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that, in order for a claimant to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of continuity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The CAVC has also reiterated that, alternatively, either or both of the second and third elements can be satisfied, under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McManaway v. West, 13 Vet. App. 60, 65 (1999) (citing Savage v. Gober, 10 Vet. App. 488, 495-97). The CAVC has established certain rules concerning claims presenting the issue of chronicity. The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such a condition. Such evidence must be medical unless it relates to a condition as to which, under the CAVC's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). A lay person is competent to testify only as to observable symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A lay person is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one about which a lay person's observations are competent. See Savage, 10 Vet. App. at 495-97. The CAVC has further determined that chronicity was not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology was the sworn testimony of the appellant himself and when "no" medical evidence indicated continuous symptomatology. McManaway, 13 Vet. App. at 66. In Voerth v. West, 13 Vet. App. 117 (1999), the CAVC held that the appellant had not submitted medical evidence providing a nexus between an in-service injury and a current disability. The CAVC held that where a claimant's personal belief, no matter how sincere, was unsupported by medical evidence, the personal belief cannot form the basis of a claim. The CAVC stated that it clearly held in Savage that Section 3.303 does not relieve a claimant of the burden of providing a medical nexus. Rather, a claimant diagnosed with a chronic condition must still provide a medical nexus between the current condition and the putative continuous symptomatology. Until the claimant presents competent medical evidence to provide a relationship between a current disability and either an in-service injury or continuous symptomatology, the claimant cannot succeed on the merits of the claim. Voerth, 13 Vet. App. at 120. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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; 38 C.F.R. § 3.102 (2003); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). When a preponderance of the evidence is against a claim, the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 implementing regulations that pertain 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 issues of whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for residuals of laminectomy as residual of low back injury, enucleation of the right eye, and residuals of a left inguinal hernia has been properly undertaken. The Board is confident in this assessment because the evidence as presently constituted is sufficient in establishing a full grant of benefits. Therefore, if there is any outstanding development not already conducted by VA, the claimant is not prejudiced; 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 delay resolution of the claims. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993) New & Material Evidence The Board finds that new and material evidence has been submitted in support of each of the claims. The claims are therefore reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). When a veteran seeks to reopen a finally denied claim, the Board must review all of the evidence submitted since that action to determine whether the claim should be reopened and readjudicated on a de novo basis. Glynn v. Brown, 6 Vet. App. 523, 529 (1994). The basis of the denial of service connection for a postoperative low back disability by the RO February 1989 was that there was no evidence that the veteran had an injury or disease affecting his back during service. VA treatment records have been associated with the claims file since the February 1989 rating decision include the report concerning an MRI study of the veteran's lumbar spine that was conducted in September 2000. This report states an impression of degenerative disc disease and other pathology of the spine. A VA neurosurgery note dated in October 2000 describes the disorders identified by the September 2000 MRI study as "grade 1 spondylolisthesis [and] severe multi-level lumbar degenerative disc disease to the back L2-3 and L3-4 with evidence of canal stenosis of those two levels." The March 1990 written statement of the veteran contains his assertion that he injured his back again in 1978. His December 2001 written statement relates that he had three surgeries for his back after service, all performed at the same VA medical facility: not only that of 1979 but also surgeries in 1981 and 1982, respectively. The transcript of the personal hearing held in June 2002 shows that the veteran testified essentially as he had at the December 1983 personal hearing about how he injured his back, and the treatment he received for the injury, during service and also testified that he injured his back again in 1978 and 1980. The evidence concerning introduced into the claims file after the February 1989 rating decision is clearly new and material. Although not directly refuting the conclusion in that decision that the veteran had not injured his low back during service, it is evidence that is not cumulative or redundant of the evidence at the time of the prior final RO denial, and does raise a reasonable possibility of substantiating the claims. Therefore, it is evidence that would have to be considered in any fair assessment of the service connection claim and as such, is not only new but is also material to the claim. 38 C.F.R. § 3.156(a). The basis of the denial of service connection for the residuals of left inguinal hernia surgery by the RO in February 1989 was that there was no evidence that the veteran suffered any residuals of the surgery that took place during service. VA treatment records introduced into the claims file since the February 1989 rating decision include the report concerning an MRI study of the lumbar spine that was conducted in September 2000. The transcript of the personal hearing held in June 2002 shows that the veteran testified that he now has a condition of the groin involving pain and other features ("[Y]ou got to watch which way you set down. It pulls or it'll catch, you know, in your shorts and stuff and pull it and hurt it. It gets in the way if you used to have sex. . . .You just got to watch how you move.") and also testified in detail about the condition in which found himself when he awoke after a second groin surgery performed during service to correct complications of the first ("[T]hey had me tied in the bed with a catgut string tied around my [testicle] to the bottom of my foot trying to pull my [testicle] back down."). This testimonial evidence is clearly new and material. The above discussed evidence is by no means cumulative or redundant of the evidence of record a the time of the prior final denial, and it raises a reasonable possibility of substantiating the claim. Therefore, it is evidence that would have to be considered in any fair assessment of the service connection claim and as such, is not only new but is also material to the claim. 38 C.F.R. § 3.156(a). The basis of the denial of service connection for enucleation of the right eye secondary to trauma by the Board in June 1984 was that there was no evidence that the veteran had an injury or disease affecting his right eye during service. The annotated photographs said to have been taken of the veteran during his service are comprised of one showing the face, including his eyes, and another showing him aiming a rifle. The annotation of the former states that it illustrates a defect of the right eye that led to the eye's going "out" three months later. The transcript of the personal hearing held in June 2002 shows that the veteran testified that the photograph of his face was taken after he had injured his right eye firing the bazooka when using his left eye to look through a right-eye site and showed that his right eye had "started turning." The hearing transcript also shows that the veteran appears to have testified that this injury took place during engineering training at Fort Leonard Wood, Missouri, that he could not see with his right eye when stationed in France several months later, and that he never recovered his sight in that eye. Although not directly refuting the conclusion in the June 1984 decision of the Board that the veteran had not injured his right eye during service, it is evidence that when presumed credible. Additionally, this evidence is not cumulative or redundant of the evidence previously of record at the time of the prior final denial. It is clear that this evidence raises a reasonable possibility of substantiating the claim of service connection. Therefore, it is evidence that would have to be considered in any fair assessment of the service connection claim and as such, is not only new but is also material to the claim. 38 C.F.R. § 3.156(a). Because the record contains new and material evidence concerning each of the service connection claims presented on this appeal, the Board must reopen the claims. Manio. ORDER The veteran, having submitted new and material evidence to reopen the claim of entitlement to service connection for residuals for residuals of injury, laminectomy, low back, the appeal is granted to this extent only. The veteran, having submitted new and material evidence to reopen the claim of entitlement to service connection for residuals of enucleation of the right eye secondary to trauma, the appeal is granted to this extent only. The veteran, having submitted new and material evidence to reopen the claim of entitlement to service connection for residuals of a left inguinal hernia, the appeal is granted to this extent only. REMAND This matter 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 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. The claims reopened in the preceding decision are now remanded so that additional efforts to develop the evidence may be undertaken and, in two of these cases, so that the veteran may be given notice concerning alternative sources of evidence that could help to substantiate his claims. Because, it is shown in the claims file, the National Personnel Records Center (NPRC) informed the RO that the veteran's service medical records are unavailable and presumed to have been destroyed at the fire that occurred in 1973 at that repository, it is especially important that the development requested in this Remand be undertaken. Judicial precedent applicable to fire-related cases so requires, as does the VCAA, when the record of a claim is incomplete. In February 1982, the RO requested the veteran's service medical records from the NPRC. In April 1982, the NPRC replied to the RO that these records and the veteran's service personnel records were unavailable and presumed to have been destroyed by the fire that took place at NPRC headquarters in July 1973. The NPRC indicated in its reply that the RO should secure a completed General Services Administration (GSA) Form 7160 and Form 7284 and return them to the NPRC. Collectively, those forms called for information identifying all units in which the veteran served and his dates of service with each, the month and year of the illness or injury claimed to have occurred during service, and the nature of the illness or injury. The record reflects that the veteran returned (on GSA Form 7160) information about the units in which he had served and the dates of his service but did not return the information concerning illness or injury claimed to have occurred during service (GSA Form 7284). It is not clear in the record that the RO transmitted the veteran's completed GSA Form 7160 to the NPRC. In a June 1982 letter, the claims file reflects, the RO advised the veteran and his representative that none of the three claims concerning a hernia, a right eye injury, and a back injury, respectively, could be granted without his submitting additional evidence. In the letter, the RO also described the type of evidence that was needed to substantiate a service connection claim. In July 1983, the RO denied the claims on the basis of the existing evidence of record, including Morning Reports. In January 1989, the RO requested the NPRC to obtain SGO records that would show that the veteran, as claimed, had been treated for a back condition while serving in France and had had hernia surgeries while serving at Fort Leonard Wood, Missouri. The RO's request asked the NPRC to search for SGO records concerning a back condition that were dated in 1953 and SGO records concerning hernia surgeries that were dated in 1952 and 1953. After obtaining the SGO records from the NPRC, the RO issued the rating decision of February 1989 denying the claims concerning the low back and hernia. In the letter accompanying the rating decision, the RO referred to the NPRC's determination that the veteran's service medical records were unavailable and presumed to have been destroyed. Two of the service connection claims presented on this appeal, those concerning residuals of injury, laminectomy, low back and enucleation of the right eye secondary to trauma, were denied by the RO in the January 2002 rating decision on the ground that the claims file contained no record that the veteran had suffered an injury or disease during service referable to the disability for which benefits are sought. Thus, VA continues to deny those claims on the basis of deficiencies in the evidence pertaining to what may have transpired during service. There is no documentation in the claims file that although apprising the veteran and his representative that the NPRC had determined that the veteran's service medical records had been destroyed by fire, the RO ever outlined the specific deficiencies in the evidence resulting from the absence of those records and described how those deficiencies might be remedied. Particularly under current law, such notice must be provided for the two reopened claims - - those concerning the low back and the right eye, respectively - - that have been denied on the ground that there is insufficient evidence of an injury or disease that took place during service. As noted above, this appeal is governed by the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). This new law has enhanced and redefined the duties owed by VA to a claimant of VA benefits to provide notice, and to assist the claimant with the development of evidence, pertinent to the claim. Thus, the VCAA requires VA to provide claimants with certain notice concerning the evidence that is needed to substantiate their claims. The notice furnished by VA must inform the claimant, and the claimant's representative, if any, of any information and of any medical and lay evidence that VA determines is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The notice must be furnished upon receipt of a complete or substantially complete application. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice must explain which evidence the claimant is finally responsible for obtaining and which evidence VA will attempt to obtain on the claimant's behalf. Quartuccio, 16 Vet. App. at 186. The notice must be furnished "before an initial unfavorable AOJ [agency of original jurisdiction] decision on the claim." Pelegrini. The statute provides that the claimant has one year from the date the notice is sent in which to submit information or evidence that VA has identified. 38 U.S.C.A. § 5103(b). The implementing regulation states that if a claimant has not responded to a notice requesting information or evidence within 30 days of the date of the notice, VA may decide the claim prior to the expiration of the one-year period on the basis of the evidence of record but must readjudicate the claim if the claimant later provides the information or evidence within the one-year period. 38 C.F.R. § 3.159(b)(1). A recent amendment of section 5103 provides that VA may make a decision on the claim before the one-year period has expired without vitiating the notice. 38 U.S.C.A. § 5103(b), as amended by Veterans Benefits Act of 2003, P.L. 108-183, Section 701(b), 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. § 5103). This amendment is by its terms retroactive to the November 9, 2000 date of enactment of the VCAA. 38 U.S.C.A. § 5103(b), as amended by Veterans Benefits Act of 2003, P.L. 108-183, Section 701(c), 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. § 5103). Moreover, the VCAA requires VA to assist a claimant with obtaining medical records and other documentary evidence. 38 U.S.C.A. § 5103(A)(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). VA must make reasonable efforts to obtain outstanding records pertinent to the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). When such records are in the custody of a federal department or agency, VA must continue to try to obtain them until it has been successful unless it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). VA must give appropriate notice to the claimant if it is unable to obtain needed records. 38 C.F.R. § 3.159(e). Under the VCAA, the duty to obtain records applies when the claimant, after being requested to do so by VA, "adequately identifies [such records] to the Secretary and authorizes the Secretary to obtain" them. 38 U.S.C.A. § 5103A(b). In December 2001, the RO sent the veteran and his representative a letter that was intended to serve as the notice required by section 5103 of the VCAA. However, the RO failed well-established procedures for fire-related cases. The RO should have advised - - and VA had a duty to advise - - the veteran that even though his service records could not be found, alternate forms of evidence could be submitted. See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The RO did not provide this information either in the December 2001 letter or in another communication to the veteran and his representative. After providing such notice, the RO should have assisted - - and VA had a duty to assist - - the veteran in obtaining such alternate evidence. See id.; 38 U.S.C.A. § 5103(A)(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). Thus, for example, an attempt should have been made to reconstruct the missing service medical record by seeking records directly from the facilities that the veteran reported treated him during service for a low back injury, a right eye injury, and problems that developed in his right eye. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The veteran claims that he injured his low back while stationed in France and received medical attention for that injury there. It appears that the veteran claims that he injured his right eye during engineering training at Fort Leonard Wood, Missouri, received medical attention for his right eye there, and later received medical attention for his right eye at a military clinic in France. However, the record does not indicate that the RO took any action to obtain medical records directly from the military facilities to which the veteran has referred. The Department of Veterans Affairs Adjudication Procedure Manual provides that alternate sources of evidence should be resorted to in fire-related cases. See BVA Adjudication Procedure Manual, M21-1, Part III, Paragraphs 4.23, 4.25, 4.29 (Change 88, February 27, 2002). A "partial list" of "alternate documents that might substitute for service medical records" is set forth in M21-1: VA military files; statements from service medical personnel; "buddy" certificates of affidavits; state or local accident and police reports; employment physical examinations; medical evidence from hospitals, clinics, and private physicians by which or by whom a veteran may have been treated, especially soon after separation; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examinations. Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.25. NA Form 13055, Request for Information Needed to Reconstruct Medical Data (Form 13055) should be given to the claimant for completion and return to the RO. Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.23. However, the record does not indicate that in conjunction with the current adjudication of the claims concerning the low back and the right eye, the RO has advised the veteran and his representative of these or other alternate forms of evidence and requested that they identify any. The record does not indicate that the RO asked the veteran to complete NA Form 13055. Concerning cases in which service records are unavailable, it is stated in M21-1: "Only when the service department indicates that all efforts to locate the [service] records have been exhausted and the request to the claimant does not result in receipt of other evidence can the case be routed to the rating activity for final rating action." Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.29. Accordingly, the claims for service connection for residuals of injury, laminectomy, low back and enucleation of the right eye secondary to trauma will be remanded for the RO to provide the veteran and his representative with supplemental notice concerning alternate sources of evidence and to carry out the required development of evidence. In addition, it appears to the Board that there may be medical records outstanding that are pertinent to the case. The veteran has referred to certain medical treatment that he says he received after service for one or more of the claimed disabilities, but there is no documentation in the claims file that the RO has attempted to obtain the records of that treatment. In a December 2001 statement submitted in response to the letter sent by the RO earlier in that month concerning evidence that could substantiate the service connection claims, the veteran indicated that he had three surgeries for his back after service, all performed at the same VA medical facility: not only that of 1979 but also surgeries in 1981 and 1982, respectively. Only the 1979 treatment records have been associated with the claims file. In a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, that he submitted in January 2002, the veteran indicated that medical records pertinent to one or more of his claims had been prepared by Dr. B in the later 1950's and the early 1960's, but such records have not been associated with the claims file. On remand, the RO must make efforts to obtain the medical records pertinent to the case that the veteran has identified but remain outstanding. The RO also must provide the veteran with a VA medical examination in conjunction with the claim for service connection for residuals of a left inguinal hernia. Under the VCAA, VA has a duty to secure a medical examination or opinion if such is necessary to decide a claim for benefits. 38 U.S.C.A. § 5103(A)(d)(1); 38 C.F.R. § 3.159(c)(4). Under the VCAA, a need for a medical examination or opinion in the in the decision of the claim is considered to exist if the record, including all information and lay or medical evidence (including statements of the claimant), presents competent evidence that the veteran has a current disability, or persistent or recurring symptoms thereof, and indicates that the current condition may be associated with his or her service. 38 U.S.C.A. § 5103A(d)(2); see also 38 C.F.R. § 3.159(c)(4)(i). The service medical evidence, SGO records, on file reflects that during service, the veteran underwent an inguinal hernioplasty after receiving a diagnosis of inguinal hernia and an orchiopexy after receiving diagnoses of complications of surgical treatment and torsion of testis. Current lay evidence - - his written statements and his hearing testimony - - indicates that the veteran now has chronic symptoms of a disorder in the groin. However, the medical evidence currently of record is not sufficient to resolve the service connection claim. Id. A current VA examination is needed in order to clarify whether the veteran has one or more disabilities of the groin that may be related to the conditions that required surgeries during service. Id. This examination should be performed only after the RO has made all appropriate efforts to associate with the claims file all outstanding medical records pertinent to the service connection claim. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The same may be said with respect to service connection for a low back disorder and enucleation of the right eye. Competent medical opinion is needed as to whether any low back and right eye disorders are related to service on any basis. Accordingly, this case is REMANDED for the following actions: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. 2. 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 (West 2002), Veterans Benefits Act of 2003, Pub. L. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C.A. § 5103), and any other applicable legal precedent. In particular, the VBA AMC must provide the veteran with notice specifically describing the type of evidence and information that could help to substantiate his claims of entitlement to service connection for residuals of injury, laminectomy, low back, enucleation of the right eye secondary to trauma, and residuals of a left inguinal hernia. By way of explaining what evidence or information is needed when, as in this case, service medical records are unavailable and presumed destroyed, this notice should apprise the veteran of alternate sources of evidence to support his contentions concerning injuries, and medical treatment as a result of those injuries, of his low back and his right eye during service, in accordance with the procedures set forth in VBA's Adjudication Procedure Manual, M21-1. Included with the notice should be NA Form 13055, Request for Information Needed to Reconstruct Medical Data and NA Form 13075, Questionnaire About Military Service, and the veteran should be asked to complete these forms and return them to the RO, in accordance with the procedures set forth in VBA's Adjudication Procedure Manual, M21-1. The notice also must indicate which evidence the appellant is finally responsible for obtaining and which evidence VA will attempt to obtain on her behalf, must inform him of the appropriate time limitation within which to submit any evidence or information, and must meet the other requirements for such notices set forth in 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b) (2002); Quartuccio. A copy of the notice must be sent to the veteran's representative. 3. The VBA AMC should then conduct any necessary development brought about by the veteran's response, to include the following: After receiving his completed NA Form 13055, Request for Information Needed to Reconstruct Medical Data, and NO Form 13075, Questionnaire About Military Service, the VBA AMC should attempt to obtain documentary evidence confirming that the veteran injured his low back and his right eye during service and received medical attention for those injuries during service, including at military medical facilities at Fort Leonard Wood, Missouri and in France. Thus, the VBA AMC should contact the NPRC and request that a search be conducted for any separately-filed hospital clinical records from the military hospital at Leonard Wood, Missouri and from the military medical facility in France where the veteran claims to have been treated. If the NPRC indicates that it does not have such records on file, the VBA AMC should make efforts to obtain them directly from the military hospital at Fort Leonard Wood, Missouri and from any military medical facility in France that is identified. In addition, the VBA AMC should make efforts to obtain all VA medical records concerning back surgery that the veteran may have had during the period extending from 1980 to 1982 and all the veteran's medical records prepared in the 1950's and 1960's by the physician, Dr. B, whom the veteran has identified in the VA Form 21-4142 that he submitted in December 2002. All records and information obtained which are not duplicative of evidence already received should be associated with the claims file. 4. If the VBA AMC is unable to obtain any of the relevant records sought, it shall notify the veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C. § 5103A(b)(2)). 5. The VBA AMC should arrange for a VA special genitourinary examination of the veteran for the purpose of ascertaining the nature, extent of severity, and etiology of any residuals of a left inguinal hernia, to include surgery therefor, which may be present. The claims file and a separate copy of this Remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination(s). The examiner must annotate the examination report(s) that the claims file was in fact made available for review in conjunction with the examination(s). Any further indicated special studies must be conducted. The medical specialist should in the examination report(s) the diagnosis or diagnoses of any genitourinary disorder or disorders found during the examination. Then, as to each disorder diagnosed, the medical specialist express an opinion in the examination report(s) as to whether it is at least as likely as not that the disorder related to service (injury or disease therein, to include surgery performed during service), or if pre-existing service, was/were aggravated thereby. The opinions expressed by the examiner must be accompanied by a complete rationale. 6. The VBA AMC should arrange for a VA special orthopedic examination of the veteran by an orthopedic surgeon or other appropriate medical specialist for the purpose of ascertaining the most likely etiology of any low back disorder(s) found on examination. The claims file and a separate copy of this Remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination(s). The examiner must annotate the examination report(s) that the claims file was in fact made available for review in conjunction with the examination(s). Any further indicated special studies must be conducted. The examiner must be requested to address the following medical issues: Is it at least as likely as not that any chronic acquired low back disorders found on examination is/are related to service on any basis including trauma whether or not documented, or if pre-existing service, was/were aggravated thereby? Any opinions expressed by the examiner must be accompanied by a complete rationale. 7. The VBA AMC should arrange for a VA special ophthalmological examination of the veteran by a medical specialist in ophthalmology for the purpose of ascertaining the nature, extent of severity, and etiology of any right eye disorder(s) found on examination. The claims file and a separate copy of this Remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination(s). The examiner must annotate the examination report(s) that the claims file was in fact made available for review in conjunction with the examination(s). Any further indicated special studies must be conducted. The examiner must be requested to address the following medical issues: Is it at least as likely as not that any chronic acquired right eye disorder(s) found on examination is/are related to service on any basis including trauma whether or not documented, or if pre- existing service, was/were aggravated thereby? Any opinions expressed by the examiner must be accompanied by a complete rationale. 8. Thereafter, the VBA AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the VBA AMC should review the requested examination reports and required medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the VBA AMC should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). In addition, the VBA AMC must review the claims file to ensure that any other notification and development action required by the VCAA completed. In particular, the VBA AMC should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (38 U.S.C. §§ 5102, 5103, 5103A and 5107) are fully complied with and satisfied. 9. After undertaking any development deemed essential in addition to that specified above, the VBA AMC should adjudicate the claim of entitlement to service connection for residuals of injury, laminectomy, low back, enucleation of the right eye secondary to trauma, and residuals of a left inguinal hernia on a de novo basis. If the benefits requested on appeal are not granted to the veteran's satisfaction, the VBA AMC should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the claim currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claims for service connection, and may result in their denial. 38 C.F.R. § 3.655 (2003). ______________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2