Citation Nr: 0429200 Decision Date: 10/25/04 Archive Date: 11/08/04 DOCKET NO. 03-29 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include due to exposure to asbestos. 2. Entitlement to service connection for a cardiovascular disability. 3. Entitlement to service connection for a dental disability for compensation purposes. 4. Entitlement to service connection for hearing loss. WITNESSES AT HEARING ON APPEAL Appellant and his spouse. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from January 1946 to December 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2004, the veteran attended a Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to service connection for hearing loss is addressed in the REMAND portion of the decision below and is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A chronic cardiovascular disability was not manifested during the veteran's active duty service or for many years thereafter, nor is current chronic cardiovascular disability otherwise related to active duty service. 2. A chronic respiratory disability was not manifested during the veteran's active duty service or for many years thereafter, nor is a current chronic respiratory disability otherwise related to active duty service, including any exposure to asbestos during such service. 3. The veteran does not have any dental condition due to a combat wound or other in-service dental trauma, and he was not a prisoner of war (POW). 4 There is no medical indication that teeth extracted in service are not replaceable. CONCLUSIONS OF LAW 1. A cardiovascular disability was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 2. A respiratory disability was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 3. The veteran does not have a dental disability for compensation purposes that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.381 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004)). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the appellant was provided notice of the VCAA in November 2002, which was prior to the January 2003 rating decision on appeal. Thus, the express requirements set out by the Court in Pelegrini have been satisfied. VA has fulfilled its duty to notify and assist the appellant in this case. In the November 2002 letter, as well as the August 2003 statement of the case, the RO informed the appellant of the applicable laws and regulations including applicable provisions of the VCAA, the evidence needed to substantiate the claim, and which party was responsible for obtaining the evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). Also in the November 2002 letter, VA informed the appellant that it would obtain the available records in the custody of federal departments and agencies and request medical records from identified private health care providers. VA also informed the veteran in a March 2003 letter that additional medical evidence was required and requested the veteran to furnish the full name and address of each facility where he was treated for the claimed disability. VA further informed the veteran that the process would be speeded up if he submitted the medical evidence on his own. The Board notes here that at the June 2004 hearing the veteran made it clear that he was unaware of any additional available evidence. The Board believes the veteran's testimony implicitly may also be viewed as an affirmation on his part the he himself has no pertinent evidence which he has not submitted. Pelegrini. Any failure to expressly inform the veteran to submit all pertinent evidence in his possession is therefore harmless error. 38 U.S.C.A. § 7261(b). The Board also finds that all necessary development has been accomplished. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claims, including medical records that the veteran identified. Additional development in this case includes affording the appellant the opportunity to attend a hearing, which he attended. The appellant has not indicated, and there is otherwise no indication that there exists, any pertinent outstanding evidence that is necessary for a fair adjudication of the claim that has not been obtained. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim under consideration and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Factual Background The majority of the veteran's service medical records are not available for review and are presumed destroyed in a fire at the National Personnel Records Center in 1973. The record includes the veteran's December 1945 service entry examination and November 1946 separation examination reports showing normal clinical evaluations of the veteran's lungs, as well as normal chest x-rays. They also show that he had a normal cardiovascular system. Examination of the veteran's teeth at service entry in December 1945 showed that tooth numbers 8 and 16 on the right side and left side of the mouth were missing. It also showed tooth numbers 14 on the right and 4 and 10 on the left were nonrestorable carious teeth. It further showed that tooth numbers 12, 13, and 15 on the right and 1, 13 and 15 on the left were restorable carious teeth. At separation in November 1946, tooth numbers 8, 16 and 14 on the right and 4, 8, and 16 on the left were missing. The veteran's separation document does not show that he was a prisoner of war nor does not contend otherwise. Private dental records in November 1973 show that the veteran was seen for a chief complaint of dental caries. He was diagnosed as having multiple dental caries and periodontitis. His history was negative for rheumatic fever. Later in November 1973, the veteran underwent removal of 18 teeth and two fragments of teeth due to abscessed teeth and enlarged maxillary frenum. Private hospital records show that the veteran was hospitalized in October 1988 for chest pain and angina. His history included 10 to 12 years of chest pain. He was noted to have had a negative treadmill test in 1984, but upper gastrointestinal testing in 1984 revealed a hiatal hernia. A repeat treadmill test in 1988 was positive. The veteran was diagnosed at discharge as having unstable angina and 100% occlusion of left anterior descending coronary artery. He was also diagnosed as having chronic obstructive pulmonary disease (COPD.) In November 1988, the veteran was admitted for elective myocardial revascularization. He was noted to have single vessel coronary artery disease. His history included 10 years of vague chest pain that became more characteristic of angina six weeks earlier. His social history was positive for a 60-pack-year history of cigarette use. While hospitalized, he underwent single vessel coronary artery bypass grafting, with left internal mammary-to-anterior descending. The final diagnosis rendered was coronary atherosclerosis with angina and total occlusion of the anterior descending. November 1989 and November 1990 private office notes reveal that the veteran was generally getting along well. He was diagnosed as having coronary disease with total occlusion of anterior descending, then failed angioplasty, then later internal mammary graft to the anterior descending with relief of prior angina. There were no current cardiovascular symptoms. The veteran was treated for esophageal problems in August and September 1991. Private medical records show that the veteran continued to seek hospital care for his coronary artery disease through 2002, including multiple recatherizations as well as coronary artery bypass graft surgery in 1995. In October 2002, the veteran filed a claim for service connection for emphysema, heart problems due to rheumatic fever, and dental surgery with unresolved gum problems. Regarding the date of onset of these claimed disabilities, the veteran said that his emphysema disability "didn't begin immediately." He also said that he was told he had rheumatic fever in service, but did not remember treatment or not, and presently has a damaged heart valve. Regarding his dental claim, the veteran said he eventually lost all of his natural teeth. An October 2002 medical record from a private internist shows that the veteran was seen for a respiratory infection that began the prior week and moved quickly into his chest. He was diagnosed as having probable acute bronchitis, rule out pneumonia. Medication was prescribed. The veteran was treated for this condition again in November 2002 and reported that he had been unable to get over the respiratory infection. He was assessed as having persistent bronchitis and was prescribed medication. In June 2004, the veteran testified at a Board hearing that his emphysema was related to asbestos exposure in service. He said he didn't receive treatment for breathing problems in service because it wasn't that bad at the time. He also said he couldn't recall whether he received medical care for his breathing problems right after service. He surmised that he was exposed to asbestos in the barracks. He did not recall any physician telling him that his breathing problems were related to service or asbestos in service. He also did not recall ever being diagnosed as having asbestosis. With respect to his cardiovascular disability, the veteran said he was unsure when he first began receiving treatment for his heart after service. His spouse testified that the veteran had had a heart attack one night. The veteran didn't know if a doctor had ever told him that his heart problems were related to rheumatic fever in service. Lastly, in regard to his dental condition, the veteran stated that he had gone to a dentist in service for a toothache and that instead of filling his tooth, the dentist "gassed my teeth off." He said he thought the dentist had been intoxicated whenever he worked on the veteran and that the dentist messed up his teeth and gums. III. Analysis A. Cardiovascular and Respiratory Disabilities The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There is no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). However, VA has provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1 (M21-1), Part VI, Par. 7.21. The VA General Counsel has held that these M21-1 guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4- 2000; 65 Fed.Reg. 33422 (2000). Specifically, these guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1, Part VI, Par. 7.21(b). This information provides that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Veterans Benefits Administration Manual M21-1, part VI, paragraph 7.21(a)(1). The veteran attributes his respiratory disability, namely emphysema, to asbestos exposure in service. As far as exposure, the veteran surmised during the June 2003 hearing that he was exposed to asbestos in his barracks. He said that he didn't know if asbestos was in the barracks or not, but that it seemed like that is where it would come from. There is no other evidence that supports asbestos exposure in service. In addition to the lack of evidence showing that the veteran was in fact exposed to asbestos to any degree of certainty, there is no medical evidence that the veteran has developed asbestosis, the condition caused by the inhalation of asbestos fibers, or any other lung disability indicative of asbestos exposure. The first postservice medical evidence reflecting respiratory problems is not dated until many years after service, in 1988. Hospital records in November 1988 reflect a diagnosis of chronic obstructive pulmonary disease (COPD), but no clinical or radiographic evidence of asbestosis was found. Chest x-rays performed in 1988 and 1989 revealed bullous changes in the lung apices consistent with chronic lung disease. However, both reports noted the absence of infiltrative processes. The November 1988 hospital discharge summary notes that the veteran had a 60- pack year history of cigarette use. Regarding the veteran's cardiovascular disability, private hospital records in 1988 reflect a 10 to 12 year history of chest pain, thus revealing symptoms well after his period of service. The veteran asserts that he was told he had rheumatic fever in service, but he could not remember if he received treatment for this or not. His separation examination report makes no mention of rheumatic fever and a postservice medical record dated in November 1973 shows a negative history for rheumatic fever. Based upon a comprehensive review of the record, the Board finds that the evidence does not demonstrate that the veteran's cardiovascular and respiratory disabilities are due to an injury or disease incurred in, aggravated by, or otherwise related to service, including exposure to asbestos; nor has any competent evidence been provided demonstrating the cardiovascular disability was manifest to a degree of 10 percent or more in the first post service year. It is unfortunate that most of the veteran's service medical records are unavailable for review through no fault of the veteran. However, his separation examination report is available and shows no complaints, findings, or diagnoses, related to cardiovascular or respiratory problems. In fact, findings show that the veteran had normal clinical evaluations of the veteran's lungs as well as normal chest x- rays. They also show that he had a normal cardiovascular system. In other words, trained medical personnel at the time of the veteran's discharge from service were of the opinion that there were no abnormalities of the lungs or heart. The Board believes the discharge examination report is significant. The Board acknowledges the veteran's testimony and that of his spouse. The Board believes such testimony was sincere. However, the veteran's belief that he has COPD and cardiovascular problems due to service does not constitute probative evidence of such a fact since the resolution of issues which involve medical knowledge, such as the diagnosis of disability and determination of medical etiology, must be addressed by medically trained individuals. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). As noted above, examiners reported clinically normal lungs and cardiovascular system at the time of discharge from service. In sum, while the evidence shows that the veteran does suffer from current chronic respiratory disability, diagnosed as chronic obstructive pulmonary disease, and cardiovascular disability, diagnosed as coronary atherosclerosis, the preponderance of the evidence is against a finding that these disabilities were manifested during service or for many years thereafter, or that they are in any manner related to his active duty service. The Board is therefore compelled to conclude that service connection for cardiovascular and lung disabilities is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. B. Dental The veteran claims service connection for postservice dental surgery and unresolved gum problems which he attributes to inservice dental treatment. In this regard, the veteran asserts that the dentist in service was intoxicated when he treated the veteran and that such treatment caused his postservice dental problems. As far as postservice dental problems, the record contains private dental records dated in November 1973 reflecting diagnoses of multiple dental caries and periodontitis. These records further show that 18 teeth with caries were surgically removed along with two teeth fragments. The preoperative diagnosis was abscessed teeth and enlarged maxillary frenum. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(b) (2004). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in § 17.161 of this chapter, but not for purposes of compensation. See 38 C.F.R. § 3.381(a) (2004). The rating activity will consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service. When applicable, the rating activity will determine whether the condition is due to combat or other in service trauma or whether the veteran was interned as a prisoner of war. 38 C.F.R. § 3.381(b). In determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered. Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. 38 C.F.R. § 3.381(c). Teeth extracted because of chronic periodontal disease will be service connected only if they were extracted after 180 days or more of active service. 38 C.F.R. § 3.381(f). Additionally, under 38 C.F.R. § 4.150 (2004), missing teeth can be service connected for compensation purposes only if the lost masticatory surface cannot be replaced by suitable prosthesis and where such loss is, inter alia, due to loss of substance of body of maxilla or mandible without loss of continuity. 38 C.F.R. § 4.150, Diagnostic Code 9913 (2004). Ratings under section § 4.150 apply only to bone loss through trauma or disease such as osteomyelitis and not to the loss of the alveolar process as a result of periodontal disease since such loss is not considered disabling. Id., Note. Although most of the veteran's service medical records, including his dental records, are unavailable for review and are presumed destroyed in a fire at the National Personnel Records Center in St. Louis, Missouri, in 1973, the veteran's entrance and separation examination reports are available and do not make any reference to dental trauma. These records show that the veteran lost two teeth in service (tooth # 14 on the right side and tooth #4 on the left side), but there is no indication that this was due to trauma. In fact, these teeth were noted at entry as being nonrestorable carious teeth. Moreover, the veteran has never contended that he sustained dental trauma in service. By his own admission, he attributes his current dental problems to the inservice dental treatment he received. In this regard, the Board notes that in a precedent opinion, VA's General Counsel held that dental treatment of teeth, even extractions, during service did not constitute dental trauma. See VAOPGCPREC 5- 97, 62 Fed. Reg. 15,566 (1997). In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the United States Court of Appeals for Veterans Claims (Court) held that in cases where it is the law, and not the evidence, that is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. In sum, there is no evidence of dental trauma in service and the veteran is not a POW. Furthermore, the evidence does not show that the veteran's extracted teeth are nonreplaceable. Thus, as replaceable missing teeth are not disabling conditions for which service connection may be granted for compensation purposes, the Board is without legal authority under governing regulations to grant service connection for a dental condition for purposes of an award of disability compensation benefits. As such, the veteran's claim of entitlement to service connection for a dental condition for compensation purposes is denied. See 38 C.F.R. § 3.381 (2004)). Although as noted above, dental conditions may be service connected for purposes of determining entitlement to dental examinations and/or outpatient dental treatment under 38 C.F.R. Part 17, such a question is not before the Board. In this respect, the Board notes that in the statement of the case dated in August 2003, the veteran was informed that if he wished to initiate a claim for outpatient dental treatment, he could do so through the nearest VA medical center. However, service connection for a dental disorder for compensation purposes remains denied. ORDER Service connection for a respiratory disability is denied. Service connection for a cardiovascular disability is denied. Service connection for a dental disability for compensation purposes is denied. REMAND The veteran alleges noise exposure in service due to his duties as a tank driver. Consistent with his testimony is his service record (DD 214) showing that his military specialty was that of a medium tank driver. The veteran explained that he was never given ear protection in service and has had hearing problems ever since service. He also testified that he wasn't sure he ever sought medical attention for his hearing problems after service, but did undergo a hearing test at one point. Medical records obtained by VA from the facility where the veteran reported undergoing a hearing test do not include audiological records and the veteran's attempt to obtain the records on his own were unsuccessful. In a case such as this where the underlying question is whether the veteran suffers from hearing loss caused by noise exposure in service, the Board believes that a proper audiological examination and a medical opinion are necessary to comply with 38 C.F.R. § 3.159(c)(4) (2004). Accordingly, the case is hereby REMANDED for the following actions: 1. The veteran should be scheduled for a VA audiological examination to ascertain the nature and etiology of the claimed bilateral hearing loss. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Audiometric testing should be accomplished and reported in accordance with 38 C.F.R. § 3.385. If the veteran has a hearing loss disability, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that such disability is related to his noise exposure during service. 2. After completion of the above, the RO should review the expanded record and determine if the benefit sought can be granted. If the benefit remains denied, the veteran should be furnished an appropriate supplemental statement of the case and be afforded and opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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). ______________________________________________ ALAN S. PEEVY 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