Citation Nr: 0416122 Decision Date: 06/21/04 Archive Date: 06/30/04 DOCKET NO. 92-08 345A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to an increased schedular rating for chronic low back strain with degenerative disc disease, currently evaluated as 40 percent disabling. 3. Entitlement to an initial rating in excess of 20 percent for type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from January 1968 to December 1975. This matter came to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The RO denied service connection for PTSD in a February 1992 rating action and denied entitlement to a rating in excess of 40 percent for the veteran's service-connected low back disorder in a June 1994 rating action. The veteran's disagreement with those decisions led to this appeal. In addition, in a rating decision dated in July 2003, the RO granted service connection for type II diabetes mellitus and assigned a 20 percent rating. The veteran disagreed with the 20 percent rating, and the issue of entitlement to an initial rating in excess of 20 percent for type II diabetes mellitus is also before the Board. The veteran testified before a hearing officer at a hearing held at the RO in September 1992. The Board remanded the case for development in May 1995. Thereafter, the veteran testified before the undersigned at a hearing held at the RO in April 1998. In September 1998, the Board remanded the case to the RO for additional development. The case is now before the Board for further appellate consideration. Review of the record shows that in a January 2004 rating decision, the RO denied service connection for obstructive sleep apnea and hepatitis B. At the same time, the RO denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. In a letter dated in January 2004, the RO informed the veteran of its decision and provided notice of his appellate rights. There is no indication that the veteran has filed a notice of disagreement, and none of those issues is currently before the Board. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C. § 7105(a), (d)(1), (3), a notice of disagreement initiates appellate review in the VA administrative adjudication process). This decision addresses the issues of entitlement to service connection for PTSD and an increased schedular rating for the veteran's service-connected low back disability. The Board notes that that at no time has the RO considered an extra- schedular rating for the veteran's service-connected low back disability. In this regard, from early in the appeal, the record has included evidence of what is arguably marked interference in the veteran's ability to work due to his service-connected low back disability. For example, in an August 1994 letter, a VA physician stated that the veteran has frequent severe bouts of back pain, which she said was a very incapacitating condition. She said that due to this persistent condition, the veteran could not be employed in any capacity. In addition, the physician who conducted a January 2001 VA orthopedic examination said that it was his opinion that the veteran's back condition was a major cause of his inability to work, while the examiner at a December 2003 VA orthopedic examination said the veteran's progressive low back problems had caused him to be unemployable. This evidence raises the issue of entitlement to an extra- schedular rating. See Douglas v. Derwinski, 2 Vet. App. 103, 109 (1992) (VA is obligated to consider all issues reasonably inferred from evidence of record); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (VA's statutory duty to assist means VA must liberally read all documents or oral testimony submitted to include all issues presented). In view of this evidence, the Board refers the matter to the RO for consideration of entitlement to an increased rating for low back disability on an extra-schedular basis with consideration of 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16, as appropriate. The matter of entitlement to an initial rating in excess of 20 percent for type II diabetes mellitus is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. All evidence necessary to decide entitlement to service connection for PTSD and entitlement to an increased schedular rating for the veteran's service-connected low back disability has been obtained. 2. The veteran did not engage in combat with the enemy. 3. The record includes a medical diagnosis of PTSD, competent evidence that supports the veteran's assertion of in-service incurrence of the stressful event of rocket attacks on the base while he was there, and medical evidence of a nexus between diagnosed PTSD and this stressful event in service. 4. The veteran's service-connected low back disability is manifested by severe limitation of motion, tenderness to palpation, muscle spasm and substantial chronic low back pain with complaints of radiating leg pain. CONCLUSIONS OF LAW 1. PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2003). 2. The criteria for a 60 percent schedular rating for the veteran's chronic low back strain with degenerative disc disease have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002) 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59 (2003); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for PTSD and an increased rating for his service-connected low back disability. This appeal arises from the veteran's disagreement with the RO's denial of his PTSD service connection claim in a February 1992 rating action and its denial of entitlement to an increased rating for his service- connected low back disability in a June 1994 rating action. In November 2000, many years after the veteran's appeal was underway, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law redefines the obligations of VA with respect to notice and the duty to assist. Since that time, the United States Court of Appeals for Veterans Claims (Court) has held expressly that the revised notice provisions enacted by section 3 of the VCAA and found at 38 U.S.C.A. § 5103(a) (West 2002) apply to cases pending before VA at the time of the VCAA's enactment. Pelegrini v. Principi, 17 Vet. App. 412 (2004). On receipt of a claim for benefits VA will notify the veteran of the evidence that is necessary to substantiate the claim. VA will also inform the veteran which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain on his behalf. VA will also request that the veteran provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In general, the VCAA provides that VA will make reasonable efforts to help the veteran obtain evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VA's duty includes making efforts to obtain his service medical records, if relevant to the claim; other relevant records pertaining to service; VA medical records; and any other relevant records held by any other source. The veteran is required to provide the information necessary to obtain this evidence, including authorizations for the release of medical records. In a claim for compensation benefits, the duty to assist includes providing a VA medical examination or obtaining a medical opinion if VA determines that such an examination or opinion is necessary to make a decision on the claim. 38 C.F.R. § 3.159. In this case, over the course of the appeal, the RO repeatedly requested the veteran to provide descriptions, in as much detail as possible, of his claimed stressors regarding his PTSD. The RO has provided the veteran with notice of the applicable regulations, both regarding the PTSD service connection claim and rating criteria for back disabilities in the statement of the case for each claim and in multiple supplemental statements of the case. In a May 2003 letter, the RO specifically notified the veteran of the VCAA and its application to his PTSD service connection claim and notified him that he should complete and return release authorization forms so that VA could request medical records from his private physicians. Further, in a letter dated in September 2003, the RO notified the veteran that to substantiate his increased rating claim, the evidence must show that his service-connected condition had gotten worse. In both letters, the RO notified the veteran that VA was responsible for obtaining relevant records from any Federal agency, including VA and the Social Security Administration. The RO also told the veteran that VA would make reasonable efforts to obtain relevant records not held by a Federal agency. The RO explained to the veteran that he must supply enough information to VA so that it could request evidence on his behalf, that VA would request the identified records, but that if the holder of the records declined to supply the records or asked for a fee, the RO would notify the veteran of the problems. The RO told the veteran that it was his responsibility to make sure that the RO received all requested records that were not in the possession of a Federal department or agency. In the September 2003 letter, the RO requested that the veteran notify VA if there was any other evidence or information that he thought would support his claims. In light of the above, the Board finds that VA has provided adequate and proper notice to the veteran as set forth in the VCAA and interpreted by the Court in Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002), to include as supplemented in Pelegrini v. Principi, 17 Vet. App. 412 (2004). In the September 2003 letter, the RO asked the veteran to identify any additional information or evidence that he thought would support his claims, to identify evidence he wanted VA to try to get and asked him to send VA the information describing additional evidence or the evidence itself. In addition, as noted above, the RO told the veteran that if there was any other evidence or information he thought would support his claims, he should let VA know. This language adequately asked the veteran to provide any evidence in his possession that pertains to the claim, as directed in Pelegrini. In its September 2002 supplemental statement of the case, the RO provided the veteran the regulatory provisions of the VCAA. The Board recognizes that the RO did not fully comply the with the notice requirements of the VCAA until after the initial unfavorable RO determination in the claim and acknowledges that the Court found this unacceptable in its recent Pelegrini decision. As is evident by the chronology outlined above, the VCAA did not become law until many years after the veteran filed his claims. Upon review of the record in its entirety, it is the judgment of the Board that during the course of the appeal VA has made reasonable efforts to develop the claims and subsequent to the enactment of the VCAA has provided the veteran with notice that complies with the requirements of the VCAA. The Board finds that the failure to provide the veteran with the specific type of notice outlined in the VCAA prior to the initial unfavorable RO determinations has not harmed the veteran and that no useful purpose could be served by remanding the case to correct such error. See 38 U.S.C.A. § 7261(b) (West 2002). With respect to VA's statutory duty to assist the veteran in the development of his claims, the RO has obtained sufficient VA treatment records and examination reports to decide the claims and, in addition, has obtained records for the veteran from the Social Security Administration. The veteran has indicated that he receives all his treatment from VA, and his VA health care providers have submitted statements and letters relevant to his claims. The veteran has submitted records pertaining to his service and multiple statements, including stressor statements, in support of his claims. In addition, the RO has obtained evidence from the U. S. Armed Services Center for Unit Records Research that is pertinent to the PTSD claim. The veteran testified at a hearing before a hearing officer at the RO in 1992 and testified before the undersigned at a hearing held at the RO in 1998. In addition, the veteran's representative has provided written arguments in conjunction with the veteran's claims. Based on the foregoing, the Board concludes that the veteran has received adequate notice pertaining to his claims. In addition, relevant data has been obtained for determining the merits of the appeal, and no assistance that might further substantiate his claims is required. PTSD The veteran is seeking service connection for PTSD and contends that he currently suffers from PTSD as a result of various in-service stressors during his service in Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2003). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The current version of 38 C.F.R. § 3.304(f), which became effective March 7, 1997, provides that service connection for PTSD now requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2003); see Cohen v. Brown, 10 Vet. App. 128 (1997). From May 19, 1993 to March 7, 1997, the requirements for service connection for PTSD were: medical evidence establishing a clear diagnosis of the condition; credible supporting evidence that the claimed stressor actually occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (1996). Prior to May 19, 1993, VA had issued procedural guidelines on service connection for PTSD in is Adjudication Procedure Manual M21-1, Part I, paragraph 50.45, which were found by the VA General Counsel not to be binding on the Board or the Veterans Benefits Administration. VAOGCPREC 7-92. As the current version of 38 C.F.R. § 3.304(f) is the rule announced by the Court in Cohen v. Brown, which was decided in March 1997, and this case was open and on direct review when that rule was announced, it is that version of 38 C.F.R. § 3.304(f) that should apply to this claim. See VAOPGCPREC 7-03. In any event, the only substantive change is that the prior version of the regulation required a "clear" diagnosis of PTSD, and that has been shown. The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD varies depending on whether or not the veteran was "engaged in combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). If the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, the veteran's lay testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 70, 76 (1994). Furthermore, service department records must support, and not contradict, the veteran's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The phrase "engaged in combat with the enemy" requires that the veteran have personally taken part in a fight or encounter with a military foe or hostile unit or instrumentality. In this case, there is no objective evidence, nor does the veteran contend, that he engaged in combat with the enemy. VAOPGCPREC 12-99. Neither the veteran's DD Form 214 nor his DD Form 215 includes any reference to combat, but the DD Form 215 does show that his decorations and medals include the Vietnam Service Medal with 1 Bronze Service Star. Because the veteran did not engage in combat with the enemy, his lay testimony alone is not enough to establish the occurrence of his claimed stressors. VA examination reports dated from the early 1990s and stressor statements from the veteran show that the veteran has reported being rocketed or mortared while in a chow hall in Cam Ranh Bay in January or February 1970. He remembered the glass in his hand shattering, diving under a table and people shouting. He said he was shaking and thought one man was killed. He has also reported that he was at that base when it underwent attacks over a period of days. Over the course of the appeal, the veteran's rendition of this set of events has varied somewhat in that in later accounts he has stated that one man was killed, but he did not know him. The veteran's service personnel records show that he was an aircraft maintenance specialist assigned to 314 Organization Maintenance Squadron, Ching Chuan Kang Air Base, Taiwan, starting in July 1969. An AF Form 626, Request and Authorization for Temporary Duty - Military, dated in December 1969, shows that the veteran was assigned to temporary duty at Cam Ranh Bay Air Base, Republic of Vietnam, to render maintenance support as a BPO team member, effective on or about 25 December 1969 for what was to be a period of approximately 55 days. Further, a DD Form 1351-2, Travel Voucher or Subvoucher, dated in February 1970, shows that the veteran was at Cam Ranh Bay from 27 December 1969 to 22 February 1970. In response to requests for supporting information, the U. S. Armed Services Center for Unit Records Research, most recently in October 2003, provided extracts from a document titled Air Base Defense in the Republic of Vietnam 1961-1973. The document extract includes an appendix providing a chronology of Viet Cong/North Vietnamese attacks on U.S. Air Force operating bases in Vietnam. The appendix shows that the Air Force operating base at Cam Ranh Bay underwent standoff attacks on January 6, 7, 9, and 13, 1970. On January 9, there was one U.S. casualty, who was wounded but not killed. The base at Cam Ranh Bay underwent an additional standoff attack on February 2, 1970, with no casualties. The Board finds that the outlined evidence supports the veteran's testimony that he was exposed to rocket or mortar attacks while he was at Cam Ranh Bay and saw another serviceman wounded by enemy fire. While the chronology of attacks does not specifically state that the veteran was present during any of the listed attacks, the fact that the veteran was assigned to temporary duty at Cam Ranh Bay air base when he said he was and standoff attacks occurred when he said they did and included a U.S. casualty, strongly suggests that the veteran was, in fact, exposed to those attacks. See Pentecost v. Principi, 16 Vet. App. 124 (2002); see also Suozzi v. Brown, 10 Vet. App. 307 (1997) (claimed stressor need not be confirmed in every detail). As it can certainly be inferred from the supporting evidence that the veteran was personally exposed to the claimed stressor, and there is no evidence to the contrary, the Board finds that the claimed stressor of exposure to rocket attacks, including one involving a casualty, has been corroborated by credible supporting evidence and is therefore a verified stressor. The favorable medical evidence of record includes medical diagnoses of PTSD and medical evidence of a nexus between diagnosed PTSD and the stressful events of experiencing rocket attacks and witnessing another serviceman being wounded during one of the attacks, though the veteran thought the other serviceman was killed. Specifically, when the veteran underwent a psychological assessment at the Traumatic Stress Disorder Center at the Boston VA Medical Center in February 1992, he reported the chow hall rocket attack at Cam Ranh Bay as among his stressors. The April 1992 report described the veteran's background as well as interview and psychological testing results and found that he met the criteria for a DSM III-R diagnosis of PTSD. Later VA records show continuing treatment for PTSD, including hospitalization for an exacerbation of his symptoms in 1995. Also, in an April 1998 letter, the veteran's VA social worker and psychiatrist stated that the veteran met the DSM-IV criteria for PTSD and noted that the veteran had witnessed a rocket attack in a mess hall, but stated it was in Qui Hon. In a later letter, in May 2000, the social worker reported that the veteran had been under treatment for several years and listed the veteran's stressors as witnessing an attack on a mess hall. It was again stated that the veteran met the criteria for a DSM-IV diagnosis of PTSD. The Board notes that the veteran, upon seeing those letters, corrected the location of the mess hall rocket attack to Cam Ranh Bay. In yet another letter, which was dated in February 2002, another VA psychiatrist along with the social worker stated the veteran met the criteria for a DSM-IV diagnosis of PTSD and stated that the veteran's stressors included having witnessed a Cam Ranh Bay mess hall rocket attack, which the veteran believed killed another serviceman. The Board acknowledges that the medical evidence demonstrates that several of the PTSD diagnoses of record are based on additionally reported stressful events other than the only verified stressful event of the veteran being subject to rocket attacks. The favorable evidence is sufficient, however, to place in equipoise the matter of whether the veteran currently has a diagnosed disability of PTSD that is etiologically related to the only verified stressful event during service. With application of 38 C.F.R. § 3.102, that is, the resolution of reasonable doubt in the veteran's favor, the Board concludes that the veteran's diagnosed PTSD was incurred in service. Low back disability The veteran is seeking an increased rating for his service- connected low back disability, which he contends is more disabling than is reflected by the currently assigned 40 percent rating. Background Service medical records show that the veteran had low back problems in service associated with lifting heavy objects, and that he was noted to have paravertebral back pain and muscle spasms. At his service separation examination in November 1975, the veteran reported he was taking muscle relaxers for low backaches, and the examiner noted the veteran had had low back pain over the past several years associated with heavy lifting. After an initial VA examination in March 1976, the RO, in a May 1976 rating decision granted service connection for low back strain and assigned a noncompensable rating effective the day following separation from service in December 1975. The veteran appealed the initial noncompensable rating, which the Board affirmed in a decision dated in August 1977. During the 1980s, the rating assigned for the veteran's service- connected low back disability, then described as chronic low back strain, was at various times rated as 10 percent or 20 percent disabling. In a rating decision dated in September 1991, the RO granted an increased rating from 20 percent to 40 percent and characterized the service-connected disability as chronic low back strain with degenerative disc disease, L4-L5. In May 1993, the veteran filed a claim for an increased rating for his low back condition and at that time submitted a letter from his VA physician. In that letter, which was dated in April 1993, the physician said the veteran continued to receive treatment for his low back pain. She also stated that his back condition had clinically worsened in spite of various therapeutic measures. In a September 1993 rating decision, the RO denied the increased rating claim after the veteran failed to report for a scheduled VA examination. In response to the RO's notice of its denial, the veteran stated that he had been unable to report for the examination and requested that it be rescheduled. At a VA examination in March 1994, the veteran reported that he had been off work since 1991 because of back problems and although he had tried to take a rehabilitation course, he was unable to complete it. He further stated that he had been turned down for many jobs because of his back history. He stated that he was now able to work two hours twice a week at a veterans center. He said that he tried to walk but could only walk 10 to 15 minutes and found he had difficulty sitting for more than a few minutes. On examination in March 1994, the physician stated that the veteran walked in a bent over position with some twist to the left. The veteran had visible difficulty walking and had obvious pain. Deep tendon reflexes were equal and intact; the veteran had marked paraspinal spasm and hip algesia in the L3-L4 distribution on the right. Straight leg raising was limited bilaterally, and the physician said the veteran manifested considerable pain when muscle testing was attempted. The diagnosis was lumbar radiculopathy with low back strain and probable herniated nucleus pulposus. VA X-rays in March 1994 showed mild narrowing of the T12-L1 disc space as well as mild anterior compression of the T12 vertebral body. Small anterior osteophytes were present throughout the lumbar spine. The RO continued the 40 percent rating in a rating decision dated in June 1994. The veteran filed a notice of disagreement in September 1994, and at that time submitted an August 1994 letter from his VA physician. In that letter, the VA physician stated that the veteran had frequent severe bouts of back pain. She said this was a very incapacitating condition because of which the veteran had been unemployed since 1991. She said that due to this persistent condition, the veteran could not be employed in any capacity. VA outpatient records show that the veteran was seen with continuing complaints of chronic low back pain. In June 1994, he reported that the pain was radiating down on the right to his knee. The physician's impression was low back pain, chronic, with exacerbation, and he prescribed bed rest for three days, as well as percocet and Tylenol. When the veteran was seen in a physical therapy consultation in September 1994, it was noted that he was being followed by a neurologist and was on Flexeril and Valium. At that time, there was straight leg raising to 20 degrees, bilaterally. After examination, the assessment was chronic low back pain with weakness of hip flexion and abduction. In a letter dated in June 1995, the veteran's VA physician stated that the veteran's service-connected back injury was diagnosed as degenerative disc in the lower lumbar spine area. She said he had a limited amount of motion in the lumbar spine area, had difficulty walking and required a cane. She said his condition was permanent and would worsen in the future. The veteran underwent a VA neurology examination in December 1996 where it was noted that he was experiencing not only lumbosacral back pain, but also intermittent shooting pains into his thighs. The physician ordered various studies, and in an addendum to the examination report noted that magnetic resonance imaging of the lumbosacral spine in December 1996 showed no encroachment of any neural foramina, mild disc bulge and small focal herniation at L2-L3, and mild disc bulge and bony ridging at L1-L2. The physician noted that January 1997 electromyography studies showed normal paraspinals in the lumbosacral area and a normal study in the legs. The physician concluded that his evaluation did not indicate any evidence of peripheral neuropathy related to the veteran's disc disease but said that the veteran continued to have intermittent low back pain with radiated pain into his upper legs about once a week. At a VA orthopedic examination in December 1998, the veteran complained of constant pain in the low back with radiation to the right leg at times. He stated that the pain was bad when he first got out of bed and when he got up from sitting. He said that standing and walking made the symptoms worse, with pain in the low back and radiation to the right leg. He said that he did not drive because it was too uncomfortable to sit for any length of time and used public transportation to get around. He said that he did not do any work around the house, but spent most of his day lying down on the couch. He reported he was not currently on any medication, having overdosed on Valium and Flexeril, but was recently given muscles relaxants for an acute episode of back pain. He said they did not help. On examination, there was some moderate tenderness over the lower lumbar spine. Flexion was restricted to 40 degrees with muscle spasm and pain; there was lateral bending to 15 degrees, bilaterally. Depression on the sciatic notch caused pain in the low back, which was not consistent. Straight leg raising was positive bilaterally. The physician said the symptoms could be aggravated by a flare up or during excessive use, and he said the range of motion could be reduced by up to 50 percent. The physician stated that the pain as claimed by the veteran was supported by muscle spasm and as evidenced by the veteran's visible behavior, that is, wincing on flexion and on straight leg raising. In a statement dated in May 2000, the veteran reported that on scale from 1 to 10, his back pain was an 8 and at times a 10. He said that when it was a 10, his back pain was severe, and it hurt to move in any position and heating pads provided only temporary relief. He said that he had been receiving physical therapy and was scheduled to receive a TENS unit from a VA clinic. At a VA orthopedic examination in January 2001, the veteran complained of spasm in his back, which he reported went up and down his back and occasionally went into his right leg. He said that he had recently been prescribed the use of a cane, which had helped him. He described the low back pain as constant and said that he had been treated at a VA pain clinic, but had limited relief. He said his activities were extremely limited. The physician noted that the veteran walked with a very slow shuffling gait, leaning heavily on his cane. Examination revealed tenderness over the lower lumbar spine. Flexion was restricted to 20 degrees, and right and left lateral bending were 5 degrees each. Neurological examination of the lower extremities was negative; straight leg raising was positive, bilaterally. The physician noted that VA X-rays of the lumbosacral spine in March 2000 had shown advanced degenerative disc disease at L5-S1 with multiple osteophytes on several other vertebrae of the lumbar spine. The diagnosis was chronic degenerative disc disease of the lumbar spine. The physician stated that it was his opinion that the veteran's back condition was a major contributing cause of the veteran's inability to work. At a VA orthopedic examination in December 2003, the physician noted that over the course of the years since service the veteran had continued to have progressive problems with his back. He stated that most recently X-rays had revealed that he had some osteophytes at L4-L5 with signs of degenerative arthritis involving the lumbar vertebrae. The veteran reported he had difficulty walking except with a limp and discomfort, but with very little radiation of pain to his extremities. Examination revealed marked stiffness of the veteran's lower back with loss of the normal lordotic curve. The examiner said that range of motion of the back was markedly restricted in that straight leg raising was only approximately 10 degrees compared to a normal 90 degrees. Flexion of the thoracolumbar spine was 10 degrees compared to a normal 90 degrees. Lateral flexion was 15 degrees compared to a normal 30 degrees, bilaterally; rotation was 15 degrees compared to a normal 30 degrees; and extension was 15 degrees compared to a normal 30 degrees. The examiner said that the progressiveness of the veteran's lower back arthritis had caused him to be unemployable. Law and regulations (i) General Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2003). Separate diagnostic codes identify the various disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2003). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2003). After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2003). While the veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2003). If a veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). However, the evaluation of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2003). The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. Esteban v. Brown, 6 Vet. App. 259 (1994), citing Brady v. Brown, 4 Vet. App. 203 (1993). Where a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies, unless Congress provided otherwise or permitted VA to do otherwise, and VA does so. Marxcoux v. Brown, 9 Vet. App. 289 (1996); VAOPGPREC 11-97. In this case, the rating schedule for diseases and injuries of the spine has changed once since the original rating decision, and the rating schedule for intervertebral disc syndrome has changed twice. Old regulations may be applied to the entire appeal period if most favorable to the claimant, but newer regulations may not be applied before their effective dates. VAOPGCPREC 3-2000. (ii) Rating musculoskeletal disabilities The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2003). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." A precedent opinion of the VA General Counsel, VAOPGCPREC 36- 97, held that Diagnostic Code 5293 for intervertebral disc syndrome involves loss of range of motion because the nerve defects and resulting pain associated with nerve injury may cause limitation of motion of the cervical, thoracic, or lumbar vertebrae. Analysis Over the course of the appeal the RO has rated the veteran's service-connected low back disability under Diagnostic Code 5292, the diagnostic code for limitation of motion of the lumbar spine although it has characterized the service- connected disability as chronic low back strain with degenerative disc disease. Under the Rating Schedule as in effect prior to September 2002, severe limitation of motion of the lumbar spine warranted a 40 percent rating, the maximum rating based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2001). Other diagnostic codes under which lumbar spine disability could be rated included Diagnostic Code 5295 for lumbosacral strain. Severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion warranted a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2001). Another potentially applicable diagnostic code is Diagnostic Code 5293 for intervertebral disc syndrome. Prior to September 2002, intervertebral disc syndrome producing severe disability with recurring attack and little intermittent relief warranted a 40 percent rating, while intervertebral disc syndrome that resulted in pronounced disability with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief warranted a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). As was noted earlier, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). It has been observed that one diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. It has been similarly held that any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, imaging studies of the veteran's low back have consistently shown bulging discs along with arthritic changes, and he has symptoms including limited motion, muscle spasm and radiating pain. Rating the veteran under Diagnostic Code 5293, intervertebral disc syndrome, is consistent with the manifestations of the service-connected disability. Moreover, rating under Diagnostic Code 5293 holds open the possibility of a maximum 60 percent rating, whereas other diagnostic codes, such as Diagnostic Code 5292 (limitation of motion of the lumbar spine) and Diagnostic Code 5295 (lumbosacral strain) provide a maximum rating of 40 percent. The Board further notes that the veteran's representative has argued that the veteran's low back disability should be rated under Diagnostic Code 5293. Accordingly, the Board finds that Diagnostic Code 5293 as in existence prior to September 2002 is most appropriate for the purposes of rating the veteran's service-connected low back disability. As was outlined above, under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001), a 40 percent rating is warranted for intervertebral disc syndrome that is severely disabling with recurring attacks and intermittent relief, and a 60 percent evaluation is assigned for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of diseased disc, with little intermittent relief. On review of the record, the Board finds that the veteran's service-connected low back disability is manifested by severe limitation of motion, tenderness to palpation, muscle spasm and substantial chronic low back pain with intermittent complaints of radiating leg pain. Although the evidence has consistently shown these symptoms, examiners have repeatedly noted that neurological deficits have not been present, which would be necessary for a 60 percent rating under Diagnostic Code 5293. The Board notes, however, that examiners have observed flare- ups of the disability when there has been extreme pain interfering with the veteran's ability to rise from a chair or to stand, bend or stoop. Further, the veteran's limp has been associated with his low back pain. These findings demonstrate functional loss due to pain contemplated by 38 C.F.R. § 4.40, functional loss due to pain on movement of a joint contemplated by 38 C.F.R. § 4.45 (which specifies that disturbance of locomotion and interference with sitting, standing and weight-bearing are related considerations) and also demonstrate painful motion with joint pathology addressed by 38 C.F.R. § 4.59. Under these circumstances, in the Board's judgment the additional disability associated with painful motion warrants the assignment of a 60 percent rating under Diagnostic Code 5293. See VAOPGCPREC 36-97 (as intervertebral disc syndrome involves loss of range of motion 38 C.F.R. §§ 4.40 and 4.45 are applicable in determining the extent of disability); see also DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.25 (2001). As noted above, 60 percent is the maximum rating available under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). An additional schedular rating over and above 60 percent under 38 C.F.R. §§ 4.40 and 4.45 may not be assigned. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Entitlement to increased rating after September 23, 2002 The rating criteria for intervertebral disc syndrome changed under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). These changes were effective as of September 23, 2002. The rating schedule for spinal disabilities other than intervertebral disc syndrome did not change at that time. The amended rating criteria for intervertebral disc syndrome provide two alternative means to rate a claim: the "incapacitating episode" method and the "combined ratings" method. The claimant receives the higher of the two methods. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Under the "incapacitating episodes" method, a rating of 60 percent is appropriate when a claimant has had a total of at least six weeks of incapacitation (defined as bed rest prescribed by a physician, and requiring treatment by a physician) within the previous twelve months. The "incapacitating episodes" option is not for application in this case because the evidence of record does not show that the veteran suffered incapacitating episodes totaling at least six weeks during a twelve-month period, which would be required for the 60 percent rating. Under the "combined ratings" method, separate evaluations for chronic orthopedic and neurological manifestations, along with all other disabilities, are combined under 38 C.F.R. § 4.25 for a combined total. The "combined ratings" method does not benefit the veteran, as it would not result in a higher combined rating for his low back disability. Under the action taken above, a 60 percent rating has been assigned. To figure a combined rating, the maximum orthopedic rating would be 40 percent with separate consideration for neurological impairment. In this case, while there is evidence of disc bulging and there are intermittent complaints of radiating pain, there is no neurological impairment shown that, when rated, would warrant a combined rating in excess of 60 percent. In this regard, to qualify for a combined rating in excess of 60 percent, it would be required that the neurological component be rated in excess of 40 percent disabling, which would be possible if there were severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. See 38 C.F.R. § 4.41a, Diagnostic Codes 8520-8529. As no impairment of the sciatic nerve has been shown, a rating higher than 60 percent could not be awarded under the combined ratings method. Entitlement to an increased rating after September 26, 2003 Changes to the Rating Schedule that became effective September 26, 2003, provide a single set of criteria for rating conditions of the spine termed General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). See 68 Fed. Reg. 51454 (Aug. 27, 2003) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243). The General Rating Formula includes criteria for evaluating limitation of motion and ankylosis, and a note following the General Rating Formula states that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately, under an appropriate diagnostic code. Lumbosacral strain is to be rated under the General Rating Formula. The new diagnostic code number for lumbosacral strain is Diagnostic Code 5237. Effective September 26, 2003, the diagnostic code number for intervertebral disc syndrome is Diagnostic Code 5243, and it is to be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes effective September 26, 2003, is the same as the criteria for incapacitating episodes under the prior Diagnostic Code 5293 in effect as of September 23, 2002. Review of the General Rating Formula shows that it states that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residual of injury or disease, forward flexion of the thoracolumbar spine limited to 30 degrees or less warrants a 40 percent rating. Under the General Rating Formula, unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. The next higher rating under the General Rating Formula is 100 percent, which requires unfavorable ankylosis of the entire spine. Application of the rating criteria that became effective in September 2003 does not benefit the veteran. The incapacitating episodes option under Diagnostic Code 5243 is not applicable, as the evidence does not document periods of extended bed rest prescribed by a physician. Under the combined ratings method, as noted above, the maximum orthopedic rating would be 40 percent, or at most 50 percent with consideration of additional disability due to flare-ups and application of the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. Neurological findings would not, however, warrant a separate compensable rating because there has been no showing of some degree of peripheral nerve paralysis, or its equivalent, which would be required. See 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8529. Summary In summary, the Board finds that the rating criteria in effect prior to September 2002 are more favorable to the veteran than are the revised criteria that became effective in September 2002 or those that became effective in September 2003. After review of the evidence, the Board concludes that under the rating criteria in effect prior to September 2002, the symptoms associated with the veteran's service-connected chronic lumbar strain with degenerative disc disease warrant a 60 percent schedular rating, which is the highest schedular rating that may be assigned under any applicable diagnostic code. ORDER Service connection for PTSD is granted. A schedular 60 percent rating for the veteran's chronic lumbar strain with degenerative disc disease is granted, subject to the law and regulations governing the award of monetary benefits. REMAND In a rating decision dated in July 2003, the RO granted service connection for type II diabetes mellitus and assigned a 20 percent disability rating. The veteran's disagreement with the 20 percent rating led to this appeal. Under the Rating Schedule, diabetes mellitus is rated under Diagnostic Code 7913, which provides a 10 percent rating for diabetes mellitus that is manageable by restricted diet alone. Diabetes mellitus requiring insulin and restricted diet or requiring oral hypoglycemic agent and restricted diet warrants a 20 percent rating. Diabetes mellitus requiring insulin, restricted diet and regulation of activities warrants a 40 percent rating. A 60 percent rating may be assigned for diabetes mellitus requiring insulin, restricted diet and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately ratable. In addition, the Rating Schedule provides a 100 percent rating for diabetes mellitus requiring more than one daily injection of insulin, restricted diet and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2003). In its denial of a rating in excess of 20 percent for the veteran's type II diabetes mellitus, the RO has noted that with respect to rating diabetes, regulation of activities means avoidance of strenuous occupational and recreational activities and has said there is no mention of restriction of activities due to diabetes in the medical evidence reviewed. The RO referred to letters from the veteran's VA physician and stated that it reviewed records in the claims file and treatment reports from the Boston VA Healthcare System dated from March 20, 2000 through March 21, 2003. The Board does not find that the claims file currently includes the VA treatment records to which the RO referred, and those records along with any more recent records should be obtained. The Board notes that in the May 2000 letter the VA physician said that since October 1998, when the veteran was found to have overt diabetes mellitus, treatment of his condition had required changing his diet and activity levels, attending diabetes teaching and nutrition classes and increasing doses of Glyburide along with close monitoring with finger-stick testing at home. In the September 2002 letter, the VA physician said that since the veteran's diabetes was diagnosed, the veteran had required increasing his medications along with multiple lifestyle changes, including a completely different diet and exercise level. In view of the foregoing, it is the judgment of the Board that the matter of the rating for the veteran's type II diabetes mellitus should be remanded for further development, including obtaining VA treatment records and providing the veteran with a VA examination. According, this issue is REMANDED for the following actions: 1. The RO must review the claims file and ensure that all notice and development actions required by 38 U.S.C.A. §§ 5103, 5103A (West 2002), 38 C.F.R. § 3.159 (2003) and applicable judicial precedent are fully complied with and satisfied. This should include, but not be limited to, an explicit request to the veteran that he provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1) (2003). 2. The RO should appropriately contact the veteran and request that he identify the names, addresses and approximate dates of treatment of all health care providers, VA and non-VA, from which he has received treatment or evaluation for his type II diabetes mellitus from April 2000 to the present. With authorization from the veteran, the RO should obtain and associate with the claims file evidence identified by the veteran that has not been secured previously. In any event, the RO should obtain and associate with the claims file all VA outpatient records, reports of laboratory studies and any hospital summaries for the veteran dated from March 2000 to the present from the Boston VA Healthcare System, including, but not limited to, the VA Medical Center in Brockton, Massachusetts. 3. Then, the RO should arrange for VA examination of the veteran to determine the severity of his type II diabetes mellitus. If deemed necessary to properly make this determination, a urinalysis and blood glucose study should be performed, in addition to the physical examination. The examiner should state whether the veteran requires insulin, restricted diet and regulation of activities, to include whether any such regulation means avoidance of strenuous occupational or recreational activities. The examiner should state whether the veteran's diabetes is adequately controlled. Further, the examiner should address whether the veteran has complications due to his diabetes, such as peripheral neuropathy or vision impairment, and, if so, provide a description of the extent and severity of any related complications. If specialist consultations are deemed to be necessary by the examiner, such should be scheduled. The claims file must be provided to the examiner for review of pertinent documents. 4. Then, after undertaking any additional development, including conducting any other examinations deemed warranted, the RO should review the record and, with consideration of the possibility of staged ratings, should readjudicate entitlement to an initial rating in excess of 20 percent for the veteran's type II diabetes mellitus. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 5. If the claim of entitlement to an initial rating in excess of 20 percent for type II diabetes mellitus is not granted to the satisfaction of the veteran, the RO should issue a supplemental statement of the case, and the veteran and his representative should be provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2