Citation Nr: 0425847	
Decision Date: 09/20/04    Archive Date: 09/29/04

DOCKET NO.  03-14 444	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Entitlement to service connection for an acquired 
psychiatric disorder, manifested by depression and memory 
loss, secondary to a lumbosacral strain with degenerative 
joint disease.

2.  Entitlement to service connection for a respiratory 
disorder, to include chronic obstructive pulmonary disease 
(COPD).

3.  Entitlement to an increased rating for lumbosacral strain 
with degenerative joint disease, currently evaluated as 40 
percent disabling.

4.  Entitlement to a total rating based on individual 
unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESSES AT HEARING ON APPEAL

Appellant and [redacted]


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The veteran served on active duty from March 1966 to April 
1970, December 1977 to December 1981, and October 1982 to 
August 1986.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 2002 decision of the 
Phoenix, Arizona, Regional Office (RO) of the Department of 
Veterans Affairs (VA).  In January 2004, a hearing was held 
before the undersigned.

For the reasons outlined below, the appeal is REMANDED, in 
part, to the RO via the Appeals Management Center (AMC), in 
Washington, DC.  Consistent with the instructions below VA 
will notify you of the further action that is required on 
your part.


FINDING OF FACT

The preponderance of the evidence is against finding that an 
acquired psychiatric disorder, manifested by depression and 
memory loss, is the result of, or is worsened by a 
lumbosacral strain with degenerative joint disease.



CONCLUSION OF LAW

An acquired psychiatric disorder manifested by depression and 
memory loss is not caused or aggravated by a lumbosacral 
strain with degenerative joint disease.  38 U.S.C.A. §§ 1110, 
1131, 5100, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.159, 3.303, 3.310 (2003).


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran and his representative contend that the appellant 
has an acquired psychiatric disorder, manifested by 
depression and memory loss, due to his service connected 
lumbosacral strain with degenerative joint disease.  It is 
requested that the veteran be afforded the benefit of the 
doubt in adjudicating the claim.

Service connection is warranted where the evidence of record 
establishes that a particular injury or disease resulting in 
disability was incurred or aggravated while on active duty.  
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  In addition, 
service connection may also be warranted for any disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).  Service 
connection may also be granted where disability is 
proximately due to or the result of already service-connected 
disability.  38 C.F.R. § 3.310.  Finally, service connection 
is warranted when a service-connected disability aggravates a 
non-service-connected disorder.  Allen v. Brown, 
7 Vet. App. 439 (1995) (en banc).

It is the responsibility of the Board to weigh the evidence, 
including the medical evidence, and determine where to give 
credit and where to withhold the same.  Evans v. West, 
12 Vet. App. 22, 30 (1998).  In so doing, the Board may 
accept one medical opinion and reject others.  Id.  At the 
same time, the Board cannot make its own independent medical 
determinations, and it must have plausible reasons, based 
upon medical evidence in the record, for favoring one medical 
opinion over another.  Rucker v. Brown, 10 Vet. App. 67, 74 
(1997).  Thus, the Board must determine the weight to be 
accorded the various items of evidence in this case based on 
the quality of the evidence and not necessarily on its 
quantity or source.

With the above criteria in mind, the Board notes that medical 
records obtained from the Social Security Administration 
included treatment records from Dr. Chetan C. Patel at 
Paradise Valley Hospital that report that the veteran was 
depressed.  See treatment records dated from October 1994 to 
June 1996.  Moreover, a June 2001 VA treatment record notes 
the veteran's complaints of memory loss, and there is one 
record of the appellant being treated with Elavil, an 
antidepressant.  

Notably, however, following a June 2002 VA psychiatric 
examination it was opined, after a comprehensive review of 
the record and examination of the veteran, that the appellant 
did not have an acquired psychiatric disorder manifested by 
either depression or memory loss. 

The Board assigns greater weight to the opinions provided at 
the June 2002 VA examination then Dr. Patel's treatment 
records for the following reasons.  First, while the 
treatment records obtained from Dr. Patel noted that the 
veteran was "depressed," it does not appear that he was 
actually diagnosed with a major depressive disorder.  Second, 
while it is unclear from these records what training, if any, 
Dr. Patel has in psychiatry, the June 2002 opinions were 
provided by a VA healthcare provider who specializes in 
psychiatric disorders and at an examination that was 
conducted for the express purpose of determining if the 
appellant had a current acquired psychiatric disorder 
manifested by memory loss and depression.  Third, the June 
2002 opinions are more contemporaneous then the treatment 
records obtained from Dr. Patel.  Finally, the June 2002 
opinions were provided only after a review of the record on 
appeal, including the Social Security Administration records 
with citation to those records, as well as an examination of 
the veteran.  Therefore, the medical evidence of record 
overwhelming supports the conclusion that the veteran does 
not currently suffer from an acquired psychiatric disorder.

The application of 38 C.F.R. § 3.310 has as an explicit 
condition that the veteran must have a current disability.  
See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) 
(establishing service connection requires finding a 
relationship between a current disability and events in 
service or an injury or disease incurred there).  
Accordingly, because the veteran does not have a current 
disability the claim of entitlement to service connection for 
an acquired psychiatric disorder manifested by depression and 
memory loss due to a lumbosacral strain with degenerative 
joint disease is legally insufficient under 38 C.F.R. 
§ 3.310.  The claim is therefore denied.

In reaching this conclusion, the Board has taken into account 
the veteran's written statements to the RO as well as the 
hearing testimony.  Lay opinions, however, are not competent 
evidence.  Neither witness at the January 2004 hearing was 
shown to possess the specialized medical knowledge or 
training needed to diagnose a psychiatric disease process.  
While lay persons are competent to describe visible symptoms 
or manifestations of a disease or disability during and after 
service, without specialized training they are not competent 
to provide medical opinion evidence.  Espiritu v. Derwinski, 
2 Vet. App. 492 (1992).  

As to the statements found in the treatment records regarding 
depression and memory loss, the Board is not required to 
accept evidence that is simply information recorded by a 
medical examiner, unenhanced by medical opinion.  LeShore v. 
Brown, 8 Vet. App. 406 (1995).  Accordingly, their statements 
are not probative evidence as to the issue on appeal

As to the Veterans Claims Assistance Act of 2000 (VCAA), Pub. 
L. No. 106-475, 114 Stat. 2096 (2000), a review of the record 
shows that VA notified the veteran that establishing 
entitlement to service connection for a disability requires, 
among other things, a current disability.  See, e.g., rating 
decision dated in Separation 2002.  Moreover, the above claim 
was denied because the veteran did not meet the statutory 
threshold for entitlement to service connection - a current 
disability.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310.  
Therefore, because the decision is mandated by a failure to 
meet a basic prerequisite the Board is entitled to go forward 
with adjudication of the claim regardless of whether or not 
VA provided adequate notice and assistance as required by the 
VCAA.  See 38 U.S.C.A. §§ 5103, 5103A; Mason v. Principi, 
16 Vet. App. 129, 132 (2002).  Further discussion of the VCAA 
is not required.


ORDER

Entitlement to service connection an acquired psychiatric 
disorder manifested by depression and memory loss, secondary 
to a lumbosacral strain with degenerative joint disease, is 
denied.


REMAND

The veteran and his representative contend that the 
appellant's current respiratory disorders, including COPD, 
were caused by exposure to asbestos while working on Navy jet 
aircraft engines.  Alternatively, it is argued that such 
disorder is the result of pneumonia contracted while in 
military service.  

As to his lumbosacral strain with degenerative joint disease. 
testimony has been presented that the disorder has worsened 
since his last VA examination, and that the disorder now 
includes lower extremity numbness, chronic pain and 
limitation of motion.  It is also argued that this disorder 
renders the claimant unemployable.

The VCAA requires VA to obtain and associate with the record 
all adequately identified records.  See 38 U.S.C.A. 
§ 5103A(b) (West 2002).  In this regard, while the veteran 
testified that he had a period of service in a reserve 
component, neither the dates of this service nor any medical 
records generated in connection with this service appear in 
the record.  

Similarly, the record shows outstanding records from the 
following locations:  medical records generated in connection 
with an amended Social Security Administration disability 
award; private treatment records from a Dr. Chetan C. Patel 
in Sierra Vista from the early or mid 1990's; private 
treatment records from a Dr. Harnett in Sierra Vista; private 
treatment records from a Dr. McCormack in Sierra Vista; 
private treatment records from Dr. Laurence M. Susini in 
Sierra Vista; private treatment records from Dr. Francis R. 
Valdivia of Tucson, Arizona; VA Vocational rehabilitation 
records; private treatment records from Dr. Colin R. Bamford; 
private treatment records from the Tucson Medical Center; 
private treatment records from Sierra Vista Hospital; private 
treatment records from Paradise Valley Hospital; private 
treatment records from Pacific Bone and Joint; and his 
ongoing treatment records from the Tucson VA medical center 
and the Sierra Vista VA Community Outreach Clinic.  Hence, a 
remand is in order.  Id.

The VCAA also requires that VA provide a medical examination 
or, obtain a medical opinion, when such an examination or 
opinion is necessary to make a decision on the claim.  
38 U.S.C.A. § 5103A(d) (West 2002).  

As to claim of entitlement to service connection for a 
respiratory disorder the veteran has most recently claimed 
that current respiratory problems were caused by his exposure 
to asbestos while working on jet engines as an aircraft 
electrician while in the Navy.  The appellant's DD Form 214 
shows that he served as an aviation electrician's mate.  In 
addition, the post-service record contains VA and/or private 
treatment records that show complaints and/or treatment for 
respiratory disorders diagnosed as COPD.  Notably, the June 
2002 VA pulmonary examination, opined that the veteran's COPD 
was caused by smoking.

Nonetheless, a remand is required because these records do 
not contain medical opinion evidence directly addressing 
whether the veteran has current x-ray evidence of asbestosis 
(see VA Adjudication Procedure Manual (M21-1), Part VI, par. 
7.21(c) (a clinical diagnosis of asbestosis requires a 
history of exposure and radiographic evidence of parenchymal 
lung disease)); or an opinion as to the origins or etiology 
of any asbestosis taking into account both his in-service and 
post-service job history (id.); or an opinion as to the 
origins or etiology of all other respiratory disorders.

As to the claim of entitlement to service connection for a 
respiratory disorder due to asbestos exposure, remand is also 
required for the RO to undertake the following development: 
(1) determine whether military records demonstrate evidence 
of asbestos exposure in service (see M21-1, Part III, par. 
5.13(b); M21-1, Part VI, par. 7.21(d)(1)); (2) determine 
whether there was pre-service and/or post-service evidence of 
occupational or other asbestos exposure (Id.); and (3) 
determine if there was a relationship between asbestos 
exposure and the currently claimed disease, keeping in mind 
the latency and exposure information found at M21-1, Part 
III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1)).  

As to entitlement to an increase rating for a lumbosacral 
strain with degenerative joint disease while the RO has 
historically rated the veteran's disability under 38 C.F.R. 
§ 4.71a, Diagnostic Codes 5292 (limitation of motion of the 
lumbar spine) - 5295 (lumbosacral strain) (2003) (see rating 
decisions dated in January 1998 and April 2001), in the April 
2003 statement of the case and the November 2003 supplemental 
statement of the case, the RO conceded that the disability is 
also ratable under Diagnostic Code 5293 (intervertebral disc 
syndrome).  

During the pendency of the appeal, however, there have been a 
number of changes in the criteria for rating musculoskeletal 
disabilities under 38 C.F.R. § 4.71a, including 
intervertebral disc syndrome under Diagnostic Code 5293.  See 
67 Fed. Reg. 54345-9 (Aug. 22, 2002); 68 Fed. Reg. 51454-
51456 (Aug. 27, 2003); 69 Fed.Reg. 32449 (June 10, 2004).  
The new rating criteria for rating intervertebral disc 
syndrome became effective September 23, 2002.  As the change 
in law occurred while the appeal was pending, the Board must 
apply the version of the law that is more favorable to the 
veteran's claim.  

Here, while the RO provided the veteran notice of the old and 
some of the new criteria in the statement of the case and the 
supplemental statement of the case as well as provided him a 
VA examination in May 2002, that examination report does not 
provide sufficient information to rate the severity of the 
low back disorder under both old and new Diagnostic Code 5293 
because the examiner did not comment with sufficient 
specificity as to the extent of the veteran's neurological 
involvement or the duration of any incapacitating episodes.  
Additionally, the appellant has yet to be notified of the 
changes to 38 C.F.R. § 4.71a announced in June 2004.  
Therefore, further development is in order.  38 U.S.C.A. 
§§ 5103, 5103A(d).  

In this regard, the Board notes that the examiner needs to 
distinguish, if possible, between any adverse neurological 
symptomatology caused by service connected low back disorder 
and those caused by his other non-service connected 
disabilities such as diabetes mellitus, alcohol abuse, and 
poor nutrition (see treatment records from Colin R. Bamford, 
M.D., dated from March to May 2002) as well as a 1992 work 
related back injury (see treatment records from Dr. Francis 
R. Valdivia dated in November 1994 and October 1996).

Lastly, the VCAA requires VA to notify the claimant and his 
representative of any information, and any medical or lay 
evidence, not previously provided to the Secretary, that is 
necessary to substantiate the claim.  See 38 U.S.C.A. 
§§ 5100, 5103 (West 2002); 38 C.F.R. § 3.159 (2003).  
Specifically, VA must: (1) notify the claimant of the 
information and evidence not of record that is necessary to 
substantiate the claims; (2) notify him of the information 
and evidence that VA will seek to provide; (3) notify him of 
the information and evidence the claimant is expected to 
provide; and (4) tell the claimant to provide any evidence in 
his possession that pertains to the claims.  See Quartuccio 
v. Principi, 16 Vet. App. 183 (2002); 38 U.S.C.A. §§ 5100, 
5103 (West 2002); 38 C.F.R. § 3.159 (2003).  

Adjudication of the TDIU issue is deferred pending completion 
of the additional evidentiary development.  See Harris v. 
Derwinski, 1 Vet. App. 180, 183 (1991).   

Therefore, these issues are REMANDED for the following:

1. The RO must review the claims files 
and ensure that all M21-1 development 
obligations and VCAA notice obligations 
have been satisfied in accordance with 
M21-1, Part VI, par. 7.21; M21-1, Part 
III, par. 5.13(b); Quartuccio; 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A; 
38 C.F.R. § 3.159; the Veterans Benefits 
Act of 2003; and any other applicable 
legal precedent. 

a.  As to the M21-1 development, 
such development includes, but is 
not limited to, the following 
actions:  (1) determining whether 
military records demonstrate 
evidence of asbestos exposure in 
service; (2) determining whether 
there was pre-service and/or post-
service evidence of occupational or 
other asbestos exposure; and (3) 
determining if there is a 
relationship between asbestos 
exposure and the currently claimed 
disease, keeping in mind the latency 
and exposure information found at 
M21-1, Part III, par. 5.13(a).  

b.  As to the VCAA development, such 
notification includes, but is not 
limited to, notifying the veteran of 
the specific evidence needed to 
substantiate each remaining claim.  
The RO must provide a letter which: 
(1) notifies the claimant of the 
specific information and evidence 
not of record that is necessary to 
substantiate the claims; (2) 
notifies him of the specific 
information and evidence that VA 
will seek to provide; (3) notifies 
him of the specific information and 
evidence the claimant is expected to 
provide; and (4) requests that he 
provide all pertinent evidence in 
his possession that has yet to be 
submitted to VA.  The veteran should 
be notified that he has one-year to 
submit pertinent evidence needed to 
substantiate his claim.  The date of 
mailing the veteran notice of the 
VCAA begins the one-year period.  

2.  The RO should contact the National 
Personnel Records Center and attempt to 
verify all of the veteran's dates of 
service in a reserve component.  The RO 
should also request any medical records 
generated in connection with that 
service, as well as a copy of his 
complete service personnel record, 
including a statement of the duties 
performed by someone with his 
occupational specialty.

3.  The RO should obtain from the Social 
Security Administration copies of all 
medical records pertinent to the 
appellant's claim for Social Security 
disability and amended benefits that have 
not already been added to the claims 
folder.

4.  The RO should obtain and associate 
with the claims file the veteran's VA 
Vocational rehabilitation records.

5.  The RO should obtain from the veteran 
a statement as to his post-service work 
history.  That statement should include a 
description of each of his job duties.

6.  The RO, after obtaining any needed 
authorizations, should obtain and 
associate with the record all post August 
1986 medical records, which have not 
already been associated with the record 
from Dr. Chetan C. Patel; Dr. Harnett; 
Dr. McCormack; Dr. Laurence M. Susini; 
Dr. Colin R. Bamford; Dr. Francis R. 
Valdivia; the Tucson Medical Center; 
Sierra Vista Hospital; Paradise Valley 
Hospital; Pacific Bone and Joint; the 
Tucson VA medical center; and the Sierra 
Vista VA Community Outreach Clinic.  If 
any of the requested records are not 
available, or if the search for any such 
records otherwise yields negative 
results, that fact should clearly be 
documented in the claims file, and the 
veteran notified in writing.

7.  The RO should contact the veteran and 
ask him to identify the name, address, 
and approximate (beginning and ending) 
dates of all other VA and non-VA health 
care providers who have treated him for 
respiratory problems since August 1986 
and back problems since May 2001.  The RO 
should inform the veteran that VA will 
make efforts to obtain relevant evidence, 
such as VA and non-VA medical records, 
employment records, or records from 
government agencies, if he identifies the 
custodians thereof.  Obtain all records 
identified by the veteran that have not 
already been associated with the claims 
file.  The assistance of the veteran in 
securing all identified records, to 
include providing necessary 
authorization(s), should be enlisted, as 
needed.  If any of the requested records 
are not available, or if the search for 
any such records yields negative results, 
that fact should clearly be documented in 
the claims file, and the veteran notified 
in writing.

8.  After associating with the record all 
evidence obtained in connection with the 
above development (to the extent 
possible), the RO should make 
arrangements with the appropriate VA 
medical facility for the veteran to be 
afforded a pulmonary examination.  Send 
the claims folder to the examiner for 
review in conjunction with the 
examination.  All indicated tests and 
studies deemed appropriate by the 
examiner must be accomplished and all 
clinical findings should be reported in 
detail.  Based on a review of the claims 
folder and the examination of the 
veteran, the examiner should provide 
answers to the following questions:



a.  Asbestosis:

i.  Is there x-ray evidence of 
asbestosis?  (Under M21-1, Part VI, 
par. 7.21(c) a clinical diagnosis of 
asbestosis requires a history of 
exposure and radiographic evidence 
of parenchymal lung disease).

ii.  If so, is it at least as likely 
as not that asbestosis was incurred 
during military service?

b.  Other Respiratory Disorders:

i.  Is there current evidence of 
COPD or any other respiratory 
disorder?

ii.  If so is it at least as likely 
as not that any currently diagnosed 
respiratory disorder was incurred in 
or aggravated by military service?

Note:  In answering the above questions, 
the examiner must comment on the 
veteran's in-service and post-service 
work histories, and the chest x-ray 
reports which are of record.

9.  After associating with the record all 
evidence obtained in connection with the 
above development (to the extent 
possible), the RO should make 
arrangements with the appropriate VA 
medical facility for the veteran to be 
afforded orthopedic and neurological 
examinations.  Send the claims folders to 
the examiners for review in conjunction 
with the examinations.  All indicated 
tests and studies as deemed appropriate 
by the examiners must be accomplished and 
all clinical findings should be reported 
in detail.  Based on a review of the 
claims folders and the examination, the 
examiners are to answer the following 
questions as to the lumbosacral strain 
with degenerative joint disease:

a.  Provide a consensus opinion as 
to whether functional debility 
caused by the lumbar spine disorder 
more closely equates to an 
intervertebral disc syndrome with 
"severe" symptoms (recurring 
attacks with intermittent relief) OR 
to an intervertebral disc syndrome 
with "pronounced" symptoms 
(persistent symptoms compatible with 
sciatic neuropathy with 
characteristic pain and demonstrable 
muscle spasm, absent ankle jerk, or 
other neurological findings 
appropriate to site of diseased 
disc, with little intermittent 
relief).

b.  Report whether functional 
debility due to the lumbar spine 
disorder equates to an 
intervertebral disc syndrome with 
incapacitating episodes having a 
total duration of at least two weeks 
but less than four weeks during the 
past 12 months, with incapacitating 
episodes having a total duration of 
at least four weeks but less than 
six weeks during the past 12 months, 
or with incapacitating episodes 
having a total duration of at least 
six weeks during the past 12 months.  

Note:  An incapacitating episode is 
defined as a period of acute signs 
and symptoms due to intervertebral 
disc syndrome that requires bed rest 
prescribed by a physician and 
treatment by a physician.  

c.  The orthopedist should conduct 
range of motion studies of the 
lumbar spine and provide an opinion 
addressing at what point, measured 
in degrees, pain begins in each 
plane of motion.  The orthopedist 
should also opine whether there is 
any additional loss of lumbar motion 
during a flare-up or with fatigue.  
See 38 C.F.R. § 4.71a.

d.  The neurologist should provide 
an opinion as to whether the 
veteran's adverse neurological 
symptomatology equates to "mild," 
"moderate," "moderately severe," 
or "severe" incomplete paralysis; 
or to "complete" paralysis of the 
sciatic nerve, or any other nerve 
affected by the low back disorder.  
See 38 C.F.R. § 4.124a.

e.  Provide a consensus opinion as 
to whether functional debility 
caused by the lumbar spine disorder, 
in conjunction with his other 
service connected disabilities, 
causes the veteran to be unable to 
obtain and retain employment.

Note:  In answering the above questions, 
the examiner should differentiate, if 
possible, between neurological 
symptomatology caused by the lumbosacral 
strain with degenerative joint disease, 
from symptomatology caused by non-service 
connected disabilities such as diabetes 
mellitus, alcohol abuse, poor nutrition, 
and a 1992-93 work related back injury 
incurred while working as a go-kart 
mechanic.  

10.  After the development requested has 
been completed, the RO should review the 
examination reports to ensure that they 
are in complete compliance with the 
directives of this REMAND.  If the 
reports are deficient in any manner, the 
RO must implement corrective procedures 
at once.  

11.  Thereafter, following any other 
appropriate development, the RO should 
readjudicate the issues on appeal in a 
rating decision.  If any of the benefits 
sought on appeal remains denied, he and 
his representative should be provided a 
Supplemental Statement of the Case which 
includes a summary of any additional 
evidence submitted including the 
testimony at the January 2004 hearing, 
applicable laws and regulations, and the 
reasons for the decision.  They should 
then be afforded an applicable time to 
respond.

The veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded to the regional 
office.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



	                     
______________________________________________
	DEREK R. BROWN
	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