Citation Nr: 0431212 Decision Date: 11/24/04 Archive Date: 11/29/04 DOCKET NO. 03-26 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to service connection for mesothelioma due to asbestos exposure, for accrued benefits purposes. 3. Entitlement to service connection for bilateral hearing loss, for accrued benefits purposes. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD Jonathan Taylor, Counsel INTRODUCTION The veteran served on active duty from October 1946 to February 1948 and from October 1950 to August 1951. The veteran died in January 2003. The appellant is the veteran's widow. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2003 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). In April 2004, the appellant and her daughter testified before the undersigned at a hearing before the Board, held via videoconference from the RO. See 38 U.S.C.A. § 7107(b), (c) (West 2002). The issues of service connection for the cause of the veteran's death and service connection for bilateral hearing loss, for accrued benefits purposes, will be addressed in the REMAND part of this decision. They are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. The VA will notify the appellant if further action is required from her. FINDINGS OF FACT 1. All requisite notices and assistance owed to the veteran have been provided, and all evidence necessary for an equitable disposition of the claim has been obtained. 2. When he died in January 2003, the veteran had a pending claim for service connection for mesothelioma due to asbestos exposure. 3. The veteran was diagnosed with mesothelioma prior to his death. 4. At the time of the veteran's death, there was no medical evidence contained in the record relating the veteran's mesothelioma to any event or injury in service, including his claimed exposure to asbestos, or to the one-year period thereafter. CONCLUSION OF LAW The criteria for entitlement to service connection for mesothelioma due to asbestos exposure, for accrued benefits purposes, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran served on active duty from October 1946 to February 1948 and from October 1950 to August 1951. On a February 1948 physical examination, prior to his discharge from his first period of military service, the veteran's lungs and cardiovascular system were normal. X-ray examination of his chest was negative. At a July 1951 examination in connection with release from active duty, his lungs and chest were again normal. X-ray examination of his chest was negative. The veteran's service personnel records show that his occupational specialties in service included being foreman of an auto repair shop. In that position, he supervised, instructed, and laid out work for enlisted mechanics, related specialists, and their helpers in the inspection, repair, or rebuilding of military motorized vehicle and accessory equipment. He also maintained shop records and requisitioned supplies, tools, and materials Records from E. H., M.D. (Dr. H.), show treatment of the veteran in July 2002 for mesothelioma. In July 2002, Dr. H. noted that the veteran was a retired shipyard worker. Later that month, Dr. H. noted that the veteran's symptoms "fit[] rather nicely with his rather nonsmoking history [and] his exposure to asbestos, apparently rather significantly in the shipyard in the 1960's." In August 2002, the veteran received VA outpatient treatment and an oncology consultation. It was noted that he had worked for and retired from Ingalls Shipbuilding; he reported some asbestos exposure in that employment. Records from the University of Alabama-Birmingham Hospital show treatment and diagnosis of the veteran for mesothelioma. In August 2002, it was noted that the veteran had a long history of exposure to asbestos in shipyards with Ingalls Shipbuilding and to asbestos in brakes in a motor pool. In September 2002, the veteran was hospitalized for pleural effusion on the right side, which had worsened since June 2002. The veteran had a long history of asbestos exposure working in shipyards and in the motor pool while in the military. The diagnosis of mesothelioma was confirmed by biopsy in September 2002. In October 2002, the veteran filed a claim seeking service connection for mesothelioma. He argued that he had been exposed to asbestos as a mechanic in service; at that time, brake shoes on vehicles were lined with asbestos. In November 2002, the veteran wrote that he had received no medical treatment in service other than dental treatment. Also that month, he stated that he had been foreman of an automobile repair shop during both periods of his active service. His duties included changing brake shoes and blowing asbestos out of brake drums. The veteran died in January 2003. His death certificate identified mesothelioma due to asbestos exposure as the immediate cause of his death. The appellant filed a claim of entitlement to service connection for mesothelioma due to asbestos exposure, for accrued benefits purposes, on January 23, 2003. II. Analysis First, the Board will address recent legislation and developments involving VA's duty to notify and assist claimants. On November 9, 2000, the Veterans Claims Assistance Act of 2000, codified at 38 U.S.C.A. §§ 5103 & 5107 (West 2002), (the "VCAA") was signed into law. This enhanced the notification and assistance duties of the VA towards claimants. As discussed below, the RO fulfilled its duties to inform and assist the appellant on this claim. Accordingly, the Board can issue a final decision because all notice and duty to assist requirements have been fully satisfied, and the appellant is not prejudiced by appellate review. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) (2004) apply to cases pending before VA on November 9, 2000, even if the initial agency of original jurisdiction decision was issued before that date; and (2) that a claimant must be given notice in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) before an initial unfavorable decision is issued. Section 3(a) of the VCAA (also 38 U.S.C.A. § 5103(a)) and 38 C.F.R. § 3.159(b)(1) require that, upon receipt of a complete or substantially complete application, the VA must notify the claimant and any representative of any information and any medical or lay evidence not previously provided to the VA that is necessary to substantiate the claim; this notice requires the VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion the VA will attempt to obtain on the claimant's behalf. In Pelegrini, the Court appears to have held, in part, that a VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant 's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." The Court stated that this new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In the present case, a substantially complete application for the appellant's claim of entitlement to service connection for mesothelioma due to asbestos exposure, for accrued benefits purposes, was received on January 23, 2003. In an April 2003 letter, the RO advised the appellant as to what information and evidence is needed to substantiate her claim, what information and evidence must be submitted by the appellant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in her possession that pertains to the claim. Thereafter, the RO denied the appellant's claim in a May 2003 decision. The VA has provided the appellant every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial error to the appellant. The RO's April 2003 letter and its July 2003 statement of the case set forth complied with the necessary notification requirements. The VA has also satisfied its duty to assist the appellant; the veteran's service medical records, VA medical records, and private medical records were obtained prior to his death. There is no indication that relevant (i.e., pertaining to treatment for the claimed disability) records exist that have not been obtained. Although, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, the Board points out that, because the appellant's claim is for the purpose of accrued benefits, the Board is prohibited from considering medical evidence received after the date of the veteran's death, other than VA records that were constructively of record at the time of death. See 38 C.F.R. § 3.1000(a) (2004); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, no additional development in terms of medical opinions can be done because any medical opinion would perforce be received into the record after the date of the veteran's death. The VA has done everything reasonably possible to assist the appellant. A remand or further development of these claims would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the appellant in this case. Further development and further expending of VA's resources is not warranted. Any "error" to the appellant resulting from this Board decision does not affect the merits of her claim or her substantive rights, for the reasons discussed above, and is therefore harmless. See 38 C.F.R. § 20.1102 (2004). There is no reasonable possibility that further assistance to the appellant would substantiate her claim. See 38 C.F.R. § 3.159(d) (2004). Having determined that the duties to inform and assist the veteran have been fulfilled, the Board must assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2004). The appellant seeks accrued benefits based on the veteran's claim for service connection for mesothelioma due to asbestos exposure in his active service. Although a veteran's claim terminates with that veteran's death, a qualified survivor may carry on, to a limited extent, the deceased veteran's claim by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). While an accrued benefits claim is separate from the veteran's service connection claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the veteran's claim as it stood on the date of death, but within the limits established by law. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Periodic monetary benefits authorized under laws administered by the VA to which a veteran was entitled at the time of the veteran's death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due to the veteran but unpaid for a period not to exceed two years prior to the last date of entitlement will, upon the death of the veteran, be paid to the veteran's spouse, children, or dependent parent. See 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000 (2004). (The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651, 2656 (Dec. 16, 2003) (to be codified at 38 U.S.C. § 5121(a)) recently repealed the two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits. However, this revision applies only to deaths occurring on or after December 16, 2003.) In order for a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. See 38 U.S.C.A. §§ 5101(a), 5121(a) (West 2002); see also Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In this case, the veteran died in January 2003, and, at the time of his death, he had a claim pending for entitlement to service connection for mesothelioma. In January 2003 the appellant, as surviving spouse of the veteran, filed her claim for accrued benefits. As noted above, because the appellant's claim is for the purpose of accrued benefits, the Board is prohibited from considering medical evidence received after the date of the veteran's death, other than VA records that were constructively of record at the time of death. See 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2004). To establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the veteran's service, or by evidence that a presumption period applied. See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." See Pond v. West, 12 Vet. App. 341, 346 (1999); see also Rose v. West, 11 Vet. App. 169, 171 (1998). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In the case of a disease only, service connection also may be established under section 3.303(b) by evidence of (1) the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In accordance with the presumptive service connection provisions, malignant tumors may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2004). "Mesothelioma is 'a malignant tumor derived from the mesothelial tissue; . . . [p]leural mesotheliomas have been linked to asbestos exposure.'" Rossiello v. Principi, 3 Vet. App. 430, 431 (1992) (quoting DORLAND'S MEDICAL DICTIONARY 1013 (27th ed. 1988)). In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular has been subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 [hereinafter Manual M21-1] notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce mesotheliomas of pleura and peritoneum. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include work in shipyards and manufacture and servicing of friction products such as clutch facings and brake linings. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. The medical evidence of record at the time of the veteran's death shows that he had been diagnosed with mesothelioma. Therefore, he satisfied the initial requirement of having a current disability. The evidence also shows that the veteran served as the foreman of an auto repair shop, where he may have been exposed to asbestos. The veteran theorized that his mesothelioma was due to his exposure to asbestos in brake shoes during service. However, medical expertise is required to relate a current disability to the veteran's in service asbestos exposure. At the time of the veteran's death, the evidence in the claims folder did not include any competent medical evidence associating the mesothelioma to in-service asbestos exposure. Although the veteran clearly believed that his mesothelioma was related to his military service, his statements are not competent evidence to establish any such relationship. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Because the veteran is not shown to be a medical professional, he was not competent to make a determination that his mesothelioma was related to his military service. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The appellant has referenced the DVB Circular to attempt to establish that the veteran's exposure to asbestos during service caused his mesothelioma. However, because this evidence is overly general and inclusive any such link is speculative. Sacks v. West, 11 Vet. App. 314, 317 (1998). "Acceptance of this evidence as sufficient to establish the plausibility of causality would be predicated on simply the instinctive inference of a lay person." Id. Although there was evidence at the time of the veteran's death that he may have been exposed to asbestos during service, there is also evidence that the veteran was exposed to asbestos in his post-service employment with Ingalls Shipbuilding. At the time of the veteran's death, there is no evidence attributing the veteran's mesothelioma to his exposure to asbestos during service, as opposed to his post-service exposure. Some of the medical records do note the veteran's history of exposure to asbestos during service; however, mere transcription of lay history is not "competent medical evidence." LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Further, all of those records also note the veteran's history of exposure to asbestos after his military service. Because there is no competent evidence relating the veteran's mesothelioma to his military service or to any applicable presumptive period thereafter, the appellant's claim for service connection for mesothelioma, for accrued benefits purposes, must fail. The preponderance of the evidence of record, at the time of the veteran's death, is against the appellant's claim. ORDER Service connection for mesothelioma due to asbestos exposure, for accrued benefits purposes, is denied. REMAND Additional development is needed with regard to the issues of service connection for the cause of the veteran's death and to service connection for bilateral hearing loss, for accrued benefits purposes. The Board notes that the appellant's claim for service connection for the cause of the veteran's death also involves the central issue in the above discussed claim for service connection for mesothelioma due to asbestos exposure for accrued benefits purposes only. However, whereas the accrued benefits claim is constrained by the evidence of record at the time of a veteran's death, see 38 C.F.R. § 3.1000, the instant claim for service connection for the cause of death is not so constrained. In compensation claims, the VA must determine whether or not military records demonstrate evidence of asbestos exposure in service. The VA must also assure development to determine whether or not there is pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases. See Adjudication Procedure Manual M21-1, Part VI, 7.21(d)(1). The veteran's potential exposure to asbestos both during his military service and thereafter have not been adequately detailed. Therefore, the RO should attempt to obtain records, as detailed below, from the veteran's post-service employer (Northrop Grumman Corporation, Ship Systems Ingalls Operations, (formerly Ingalls Shipbuilding)) and from the Army. In his October 2002 claim, the veteran stated that he had been treated for hearing loss at a VA facility in Biloxi, Mississippi, beginning in 1980. Additionally, medical records in the claims folder suggest that the veteran had received treatment at VA facilities for respiratory symptoms prior to June 2002. Records prior to June 2002 have not been obtained. In December 2002 the RO attempted to obtain additional VA medical records but was advised in January 2003 that there was no record of the veteran by name or by Social Security number. That reply, however, was clearly in error because the claims file does contain records showing VA treatment of the veteran during the relevant time period. A second request must be made. Correct identifying information for the veteran should be provided. VA records are considered part of the record on appeal since they are within VA's constructive possession, and these records must be considered in deciding the appellant's claim. See Adjudication Procedure Manual, M21-1 MR [Manual Rewrite], Part VIII, Ch. 1, 4 (June 4, 2004) ("evidence in the file at the date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if the evidence was not physically located in the VA claims folder on or before the date of death); Hayes v. Brown, 4 Vet. App. 353 (1993); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004); see also 38 C.F.R. § 3.1000 (2004). Records of VA treatment of the veteran from 1980 to 2003 for respiratory disorders and hearing loss should be obtained. VA is required to provide a medical examination when such a decision is necessary to make a decision on a claim. An examination is "necessary" if the evidence of record includes competent evidence of a "current" disability and of its association to the claimant's active service, but where the case does not yet contain sufficient medical evidence for a decision to be made. See 38 U.S.C.A. § 5103A(d) (West 2002); see also 38 C.F.R. § 3.159(c)(4) (2004). The appellant alleges that the veteran was exposed to asbestos as foreman of an auto repair shop during service. The veteran had also described asbestos exposure in that capacity, due to brake linings. The veteran was diagnosed with mesothelioma during his lifetime and the death certificate identifies mesothelioma due to asbestos exposure as the immediate cause of his death. There is no medical opinion as to whether the veteran's mesothelioma was due to his in-service exposure to asbestos. A medical opinion must be obtained. Accordingly, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required on her part. 1. Obtain VA records of the veteran for hearing loss and respiratory disorders, including mesothelioma, at the VA facility in Biloxi, Mississippi from 1980 to January 2003. All records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. The RO should associate all records and responses with the claims file. 2. Contact the Army or other appropriate agency for information regarding the veteran's exposure to asbestos during his military service from October 1946 to February 1948 (military occupational specialty 337) and from October 1950 to August 1951 (specialty number 3966). Provide the Army with the veteran's DD Form 214, WD AGO Form 53, and WD AGO Form 100. The Army should address the veteran's exposure to asbestos while servicing friction products such as clutch facings and brake linings. 3. After obtaining any appropriate release from the appellant, contact Northrop Grumman Corporation, Ship Systems Ingalls Operations, (possible address P. O. Box 149, Pascagoula, Mississippi, 39568-0149 (telephone 228- 935-1122)) to obtain records of the veteran's dates of employment with Ingalls Shipbuilding. Request information regarding the length of the veteran's employment, his assignments during his employment, and any available information regarding his exposure, or likelihood of exposure, to asbestos in each capacity. 4. Following the above, obtain a medical opinion from an appropriate specialist in pulmonary disease to determine whether the veteran's mesothelioma was related to his military service. The entire claims folder, including a record from E. H., M.D. (Dr. H.) dated on July 8, 2002, the report of an August 7, 2002 VA oncology consultation, a September 10, 2002 surgical pathology report from the University of Alabama- Birmingham Department of Pathology, and a November 2002 statement from the veteran describing his exposure to asbestos during service, should be made available to the specialist for review, who should also state if the claims folder was available and reviewed. The specialist should discuss the relationship, if any, of the veteran's mesothelioma to active service. (If possible, the specialist should discuss any relationship, if found, in terms of "due to," "more likely than not due to" (likelihood greater than 50%), "at least as likely as not due to" (50%), "less likely than not due to" (less than 50% likelihood), or "not due to" the veteran's active service.) The specialist should set forth a complete rationale for the resulting opinion. 5. After the above actions have been completed to the extent possible, the RO should readjudicate the appellant's claims. If any benefit sought on appeal remains denied, the RO should provide the appellant and her representative a supplemental statement of the case and the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further review, if appropriate. The Board intimates no opinion as to the ultimate outcome of the case. The appellant has the right to submit additional evidence and argument on the matters remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be treated expeditiously. All claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled expeditiously. 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). ______________________________________________ PANAYOTIS LAMBRAKOPOULOS Acting 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