Citation Nr: 0420626	
Decision Date: 07/29/04    Archive Date: 08/05/04

DOCKET NO.  99-19 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Whether a September 23, 1991 rating decision that denied 
service connection for retinitis pigmentosa was clearly and 
unmistakably erroneous.


REPRESENTATION

Appellant represented by:	Blinded Veterans Association


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

Van Stewart, Associate Counsel


INTRODUCTION

The veteran had active military service from October 1946 to 
December 1946, and from February 1951 to March 1952. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of an August 1998 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Cleveland, Ohio denying the veteran's claim that a September 
1991 rating decision, which denied service connection for 
retinitis pigmentosa, was clearly and unmistakably erroneous.  


FINDINGS OF FACT

1.  Service connection for retinitis pigmentosa was denied by 
a rating decision dated September 23, 1991.

2.  The veteran did not perfect an appeal of the September 
1991 decision.

3.  The veteran has not successfully alleged that either the 
correct facts as they were known at the time of the September 
1991 RO decision were not before the adjudicator, or that the 
statutory or regulatory provisions extant at the time were 
incorrectly applied.


CONCLUSION OF LAW

The September 23, 1991 rating decision was not clearly and 
unmistakably erroneous.  38 U.S.C.A. § 5109A (West 2002); 38 
C.F.R. § 3.105(a) (2003).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

Background

Evidence available in September 1991 showed that the veteran 
was drafted into the military in February 1951 during the 
Korean hostilities.  It does not appear that the veteran's 
previous medical discharge of 1946 was taken into account.  
The veteran's pre-induction examination in October 1950 noted 
the veteran's distant vision was 20/70 bilaterally, corrected 
to 20/20 in the right eye, and 20/30 in the left eye.  

Of record is information that the veteran was involved in an 
automobile accident while on active duty in September 1951.  
The veteran's SMRs indicate that a minor head wound was 
sutured the night of the accident and that he was admitted to 
the hospital for x-ray and observation.  The x-ray of the 
head the following day revealed no significant abnormalities, 
and he was released the following day.  The record shows that 
shortly before scheduled embarkation for transportation to 
Korea the veteran complained of vision troubles and was taken 
from his unit and sent to the Madigan Army Hospital at Ft. 
Lewis, Washington for examination of the complaint.  

The veteran was diagnosed with retinitis pigmentosa in 
December 1951, and was referred for evaluation and 
recommendation for disposition.  The veteran was afforded a 
medical examination in January and February 1952.  The 
veteran told his examiner that he had had poor vision all his 
life, and especially since about 13 years of age when he 
noted that he could not see the school blackboard and was not 
able to ride his bike after dark.  The veteran also told his 
examiner that he did not think his condition had progressed 
since then.  In February 1952 the examiner diagnosed 
degeneration, retina, n.e.c., pigmented, bilateral, cause 
undetermined.  A February 1952 medical board concluded that 
the veteran was unfit for service because of poor vision 
caused by a congenital retinal disease.  The board concluded 
that the veteran's retinitis pigmentosa originated prior to 
military service based at least in part on the veteran's 
having told his examiners that he had had night vision 
problems since childhood.  The medical board also 
specifically found that the veteran's retinitis pigmentosa 
had not been permanently aggravated by active duty.

In September 1990, the veteran submitted a claim for service 
connection for, inter alia, his retinitis pigmentosa.  The 
claim did not identify his service and medical discharge in 
1946, and did not claim aggravation of a preexisting 
condition.  The claim was denied by a rating decision dated 
in September 1991.  The claim was denied because the RO found 
from the record that the veteran's retinitis pigmentosa was a 
congenital condition.  The RO noted that the veteran had 
given a history of having been unable to see at night since 
about age 14, and reported that his visual acuity had always 
been bad, even with proper eyeglasses.  The RO further found 
that it had not been shown that the veteran's retinitis 
pigmentosa had been aggravated beyond normal progression 
during the veteran's active duty service.  The veteran did 
not appeal the RO's decision and so the decision became 
final.  38 C.F.R. §§ 19.129, 19.192 (1991).  

The veteran submitted a request to reopen his claim for 
service connection for retinitis pigmentosa in a 
correspondence dated in July 1997.  In October 1997 the 
veteran was informed by the RO that the previous decision was 
confirmed because the retinitis pigmentosa was congenital in 
nature and was not shown to have been aggravated beyond 
normal progress during his active duty service.  Also in 
October 1997, the veteran requested copies of all of his 
SMRs, which request the RO fulfilled in January 1998.  

In January 1998, the veteran notified the RO that he 
disagreed with the denial of his claim for service 
connection, and requested that the RO provide a Statement of 
the Case (SOC) for an appeal review.  The RO replied in March 
1998 that the September 1991 decision was final, and that in 
order to reopen the claim the veteran must provide new and 
material evidence (NME) that shows the veteran's retinitis 
pigmentosa was aggravated during military service.  The 
veteran did not respond to the RO's March 1998 
correspondence.  In May 1998 the RO sent the veteran another 
letter informing him that they could not reopen his claim 
without NME, which he had not submitted.  

In May 1998 the veteran submitted the copies of his SMRs 
which had been provided to him in January 1998 at his 
request.  In a statement included with the copies of his 
SMRs, the veteran contended that the SMRs met the criteria 
for NME because it was his belief that the SMRs had not been 
completely considered or read at the time of denial of 
service connection.  The veteran also contended that the RO 
"selectively overlooked" the fact that the veteran was 
deemed fit for service at the time of entry into service.  
The veteran claimed for the first time that reflection of the 
bright sun off the white beach sand and waters of Puget Sound 
at Ft. Worden, Washington aggravated his retinitis pigmentosa 
by causing it to progress much more rapidly than it would 
have otherwise.  

In July 1998, the RO reiterated that without NME his claim 
could not be reopened.  The RO also returned the copies of 
the SMRs because, it was explained, they were already of 
record and had been considered in the original decision.  The 
RO also informed the veteran that he could not be provided 
with an SOC because the veteran had not appealed the 
September 1991 decision within one year of the decision.  

The veteran responded in July 1998, disagreeing with the RO's 
July 1998 decision to deny reopening his claim.  The veteran 
further claimed that the RO had failed in its duty to assist 
by not stating the reasoning for rejecting his claim that the 
SMRs had never been thoroughly read or considered when his 
claim was originally denied in September 1991.  The veteran 
also claimed that there was clear and unmistakable error 
(CUE) in the rendering of the September 1991 decision 
because, the veteran claimed, at no time past or present was 
he given consideration for being deemed fit at time of entry 
into service.  

In an August 1998 rating decision the RO advised the veteran 
that no revision was warranted in the September 1991 decision 
to deny service connection for retinitis pigmentosa.  The 
decision explained what constituted CUE under the law, and 
determined that there was no CUE because the decision was 
properly based on the available evidence of record at the 
time, and the rules then in effect.  The rating decision 
acknowledged that the veteran's retinitis pigmentosa was 
first diagnosed in service, but, based in part on the 
veteran's own statements, found the condition existed his 
entire life with no progression, and aggravation during 
service had not been shown.

The veteran submitted a notice of disagreement (NOD) with the 
RO's August 1998 decision in December 1998.   In his NOD the 
veteran stated that, after reading the RO's description of 
what constitutes CUE, he would have to agree that the 
decision rendered in September 1991 did not meet those 
standards.  The veteran took issue, however, with his 1951 
statements to military physicians being relied upon as 
medical evidence, and denied having made some of the 
statements, including those related to inability to read the 
blackboard and to ride his bicycle at night.  The veteran 
contended that the vision difficulties he had as a child were 
at least as likely as not to have been mere common symptoms 
of refractive error, easily corrected by the glasses 
prescribed for him, and were not likely the first 
manifestations of retinitis pigmentosa.  The veteran also 
questioned whether those statements satisfied the 
requirements for medical evidence upon which the RO should 
find a basis for rebuttable presumption.  The veteran also 
stated it was his understanding that the proper application 
of the regulation relating to presumptions was clarified by a 
VA General Counsel's opinion issued on March 16, 1990.  The 
veteran did not cite any specific opinion.  

In July 1996 the veteran notified the RO that he had also had 
military service from October 1946 to December 1946.  The RO 
took the steps necessary to obtain records from that period 
of service, and those SMRs were received in September 1999.

The RO responded with an SOC in July 1999, explaining in 
detail the August 1998 CUE decision.  The SOC reiterated that 
the decision was properly based on the available evidence of 
record at the time and the rules then in effect.  The SOC 
informed the veteran that the RO had reviewed the 1990 
General Counsel opinions and found no support for the 
veteran's contentions.  The SOC did note finding a VAPPGCPREC 
82-90 from July 18, 1990 which held that, while service 
connection may not be granted for congenital or developmental 
defects, it may be granted for diseases (but not defects) of 
congenital, developmental, or familial origin, if the 
evidence shows the condition in question was incurred or 
aggravated during service.  

The veteran timely perfected his appeal.  As noted above, a 
hearing was held before the undersigned Veterans Law Judge in 
October 2003.  At that hearing the veteran asserted that his 
vision was aggravated during military service.  In response 
to questioning, the veteran stated that he had no problems 
with his eyes during his 1946 military service, and that he 
did not notice any vision difficulties until after his 1951 
automobile accident. 

Analysis

Previous determinations, which are final and binding, 
including decisions of service connection, degree of 
disability and other issues, will be accepted as correct in 
the absence of CUE.  38 U.S.C.A. § 5109A (West 2002); 38 
C.F.R. § 3.105(a) (2003).  To establish a valid CUE claim, a 
veteran must show that either the correct facts, as they were 
known at the time, were not before the adjudicator, or that 
the statutory or regulatory provisions extant at the time 
were incorrectly applied.  Russell v. Principi, 3 Vet. App. 
310 (1992).  However, the veteran must assert more than a 
disagreement as to how the facts were weighed or evaluated.  
Crippen v. Brown, 9 Vet. App. 412, 418 (1996).

If a veteran wishes to reasonably raise a claim of CUE, there 
must be some degree of specificity as to what the alleged 
error is and, unless it is the kind of error that, if true, 
would be CUE on its face, persuasive reasons must be given as 
to why one would be compelled to reach the conclusion, to 
which reasonable minds could not differ, that the result 
would have been manifestly different but for the alleged 
error.  Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), 
cert. denied, 120 S. Ct. 405 (1999); Fugo v. Brown, 6 Vet. 
App. 40 (1993) (emphasis added).  If the error alleged is not 
the type of error that, if true, would be CUE on its face, if 
the veteran is only asserting disagreement with how the RO 
evaluated the facts before it, or if the veteran has not 
expressed with specificity how the application of cited laws 
and regulations would dictate a "manifestly different" 
result, the appeal to the Board terminated because of the 
absence of legal merit or the lack of entitlement under the 
law.  Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. 
Brown, 6 Vet. App. 377, 384 (1994).

In this case the veteran presents two arguments in support of 
his contention that the September 1991 denial of his claim 
was flawed by CUE.  First, he argues that there was a failure 
on the part of VA to apply the statutory presumption of 
soundness as found in laws and regulations as found in 38 
U.S.C.A. § 1111, 1153, and 38 C.F.R. § 3.304(b), 3.306.  
Second, the veteran argues that VA disregarded VBA's 
Adjudication Procedure Manual  M21-1 (M21-1 Manual), 
paragraph 7.01(G) [sic], and that the September 1991 finding 
was in direct opposition to VAOPGCPREC 67-90 and VAOPGCPREC 
82-90.  

Chapter 38 U.S.C.A. §§ 1111 and 1153 were formerly §§ 311 and 
353, respectively.  The renumbering was brought about by the 
enactment of Public Law No. 102-40 and Public Law No. 102-83.  
Section 311 said that for purposes of basic entitlement, 
every veteran shall be taken to have been in sound condition 
when examined, accepted, and enrolled for service, except for 
defects, infirmities, or disorders noted at the time of the 
examination, acceptance, and enrollment, or where clear and 
unmistakable evidence demonstrates that the injury or disease 
existed before acceptance and enrollment and was not 
aggravated by such service.   38 U.S.C.A. § 311 (West 1989).  
Section 353 said that a preexisting injury or disease will be 
considered to have been aggravated by active military service 
where there is an increase in disability during such service, 
unless there is a specific finding that the increase in 
disability is due to the natural progress of the disease.  38 
U.S.C.A. § 353 (West 1989).  

The regulations in effect at the time of the September 1991 
rating decision said, inter alia, that a veteran will be 
considered to have been in sound condition on entry into 
service except as to defects, etc., noted on entry, or where 
clear and unmistakable (obvious or manifest) evidence 
demonstrates that an injury or disease existed prior thereto.  
38 C.F.R. § 3.304(b) (1990).  Further, the regulation 
required that determinations must be made on the careful 
correlation of all material facts, including specifically the 
correlation of both medical and historical evidence.  
38 C.F.R. § 3.304(b)(i) (1990).  Also, a preexisting injury 
or disease will be considered to have been aggravated by 
active service where there is an increase in disability 
during such service unless there is a specific finding that 
the increase in disability is due to the natural progress of 
the disease.  C.F.R. § 3.306(a) (1990).  Further, aggravation 
may not be conceded where the disability underwent no 
increase in severity during service on the basis of all the 
evidence of record pertaining to the manifestations of the 
disability prior to, during, and subsequent to service.  
C.F.R. § 3.306(b) (1990).

In light of the evidence of record and the RO's actions, 
there is no indication of a kind of error, of fact or of law, 
that compels the conclusion, to which reasonable minds could 
not differ, that the result would have been manifestly 
different but for the error.  Fugo, supra, at 43-44.  The 
evidence of record at the time of the rating decision in 
September 1991 showed that the veteran's presumptive sound 
condition on entry into service was implicitly rebutted by 
the evidence of the veteran's condition on examination in 
January and February 1952, and by the veteran's own 
statements that he had suffered from the symptoms of 
retinitis pigmentosa since at least his early teens, with no 
progression since then.  

Regarding the veteran's contention that the RO disregarded 
the possibility that the veteran's retinitis pigmentosa was 
aggravated in service, there is no evidence of record that 
the veteran's retinitis pigmentosa had increased in severity 
during service.  The three-doctor medical board specifically 
determined that the veteran's retinitis pigmentosa existed 
prior to entry on active duty in 1951, and that the veteran's 
retinitis pigmentosa was not permanently aggravated by active 
duty.  Implicit in the medical board's finding that there was 
no permanent aggravation of the veteran's retinitis 
pigmentosa while in service, is the conclusion that any 
worsening that may have occurred was due to the natural 
progress of the disease.  In sum, in its September 1991 
decision, the RO did take into account the issues of 
presumption of soundness on entry, and aggravation of 
preservice disability. 

Regarding the veteran's contention that the September 1991 
finding was in direct opposition to VAOPGCPREC 67-90 and 
VAOPGCPREC 82-90, the Board finds the argument unavailing.  
Further, the veteran has not expressed with specificity how 
the application of cited laws and regulations would dictate a 
"manifestly different" result.  Luallen, supra.  The holding 
in VAOPGCPREC 67-90 is that an hereditary disease under 38 
C.F.R. § 3.303(c) does not always rebut the presumption of 
soundness found at 38 U.S.C.A. §§ 311 and 332; service 
connection may be granted for hereditary diseases which 
either first manifest themselves during service or which 
preexist service and progress at an abnormally high rate 
during service.  In this case, while the veteran's retinitis 
pigmentosa was first diagnosed while in service, by the 
veteran's own account its symptoms were first manifested at 
an early age, well before military service.  As discussed 
above, there is no evidence of record that the veteran's 
retinitis pigmentosa, which had been found to have preexisted 
service by a board of physicians, progressed at an abnormally 
high rate during service.  In fact, the medical board 
determined that the veteran's retinitis pigmentosa had not 
been aggravated at all by military service.  The Board also 
notes that the wording of the VAOPGCPREC 67-90 finding is 
that service connection may be granted for hereditary 
diseases, not that service connection must be granted for 
hereditary diseases.  Thus, while VAOPGCPREC 67-90 may allow 
service connection for the veteran's retinitis pigmentosa 
when warranted, the evidence of record available in September 
1991 was at least debatable on the question of pre-existence 
and aggravation, particularly in light of the findings of the 
1952 medical board, which were against the veteran's claim.  

The holding in VAOPGCPREC 82-90 is that service connection 
may be granted for diseases (but not defects) of congenital, 
developmental, or familial origin.  Service connection is 
warranted if the evidence as a whole establishes that the 
familial conditions in question were incurred or aggravated 
during service within the meaning of VA law and regulations.  
The opinion further stated that typically in these cases, 
entitlement to service connection should turn on the question 
of whether manifestations of the disease in service 
constitute aggravation of the condition.  As discussed above, 
it was determined that the veteran's retinitis pigmentosa was 
neither incurred nor aggravated during service.  As is the 
case above, while VAOPGCPREC 82-90 may allow service 
connection for the veteran's retinitis pigmentosa when 
warranted, there were facts available in 1991 to reasonably 
allow for the denial of the veteran's claim.  

The Board notes that the veteran's representative's citation 
to M21-1 Manual, paragraph 7.01(G) is inaccurate as it does 
not refer to a specific M21-1 Part.  The Board notes, 
however, that the current M21-1, Part VI, para. 7.01g deals 
with service connection for congenital/developmental 
conditions, and specifically mentions retinitis pigmentosa as 
an example of an hereditary condition which is usually 
capable of improvement or deterioration.  Paragraph 7.01g 
provides VA rating specialists with the same guidance as 
found in VAOPGCPREC 67-90 and VAOPGCPREC 82-90.  In short, 
while paragraph 7.01g allows service connection when 
warranted, there were facts available in 1991, as noted 
above, to support the position that service connection should 
be denied.  Again, the veteran has not expressed with 
specificity how the application of cited laws and regulations 
would dictate a "manifestly different" result, requiring that 
the claim be denied.  Luallen, supra.  

Based on the foregoing, the Board concludes that the 
September 1991 finding was not in opposition to VAOPGCPREC 
67-90; VAOPGCPREC 82-90; or M21-1, Part VI, para. 7.01g as 
the veteran contends.  In summary, given the facts available 
in 1991, which did not include records from the veteran's 
first period of service, in part because the veteran had not 
made the RO aware that he had military service in 1946, the 
RO's denial of service connection may be said to have been a 
reasonable exercise of rating judgment.  At the very least, 
the case was debatable, which means that any error committed 
by the RO would not have constituted CUE.  

In deciding this case the Board has considered the Veteran's 
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 
§ 7(b), 114 Stat. 2096, 2099-2100 (2000) for possible 
application.  Claims for CUE must be decided based on the 
evidence of record as they are based on a request for a 
revision of a previous decision.  Accordingly, the Court has 
held that the duties to assist and notify under the VCAA are 
not applicable to CUE claims.  Livesay v. Principi, 15 Vet. 
App. 165, 179 (2001).  


ORDER

The veteran's claim that the rating decision entered in 
September 1991 was clearly and unmistakably erroneous in 
failing to grant service connection for retinitis pigmentosa 
is denied.


REMAND

In July 1998 the RO notified the veteran that his claim for 
service connection for retinitis pigmentosa could not be 
reopened without new and material evidence.  It was 
determined that a SOC could not be prepared because the 
veteran did not appeal the decision of September 1991.  The 
RO informed the veteran that the copies of SMRs which he had 
sent were returned to the veteran, and the veteran was told 
that those records were already of record and were considered 
in the original decision.  The veteran filed an NOD in July 
1998.  The record indicates the RO never responded to this 
NOD by issuing a SOC.  

Further, the veteran's SMRs from 1946 were not associated 
with the record until September 1999, after the veteran 
informed the RO for the first time of his earlier military 
service.  The SMRs show that the veteran was medically 
discharged after a few weeks of service in 1946 because of 
defective vision.  These records from 1946 constitute a 
supplemental report from the service department, which means 
that consideration must be given to the veteran's claim in 
accordance with 38 C.F.R. § 3.156(c) (2003).

Accordingly, this case is REMANDED to the RO for the 
following actions:

After undertaking any other 
development deemed appropriate, the 
RO must consider the newly received 
evidence in the context of 38 C.F.R. 
§ 3.156(c).  If the benefit sought 
is not granted, the veteran and his 
representative should be furnished 
with a statement of the case and 
afforded an opportunity to respond.  
If, and only if, the veteran submits 
a timely substantive appeal, this 
case should be returned to the 
Board.

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 RO.  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 case must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the Court 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, and 38 U.S.C. § 7112, respectively).  In 
addition, VBA's Adjudication Procedure Manual, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.



________________________________
MARK F. HALSEY
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