Citation Nr: 0414877 Decision Date: 06/09/04 Archive Date: 06/23/04 DOCKET NO. 00-24 231A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date earlier than January 20, 2000, for the award of nonservice-connected disability pension benefits. REPRESENTATION Appellant represented by: Sean Kendall, Esquire ATTORNEY FOR THE BOARD J. M. Ivey, Counsel INTRODUCTION The veteran had active service from May 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating decision by the San Juan, the Commonwealth of Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted a claim for entitlement to nonservice-connected disability pension benefits and assigned an effective date of January 20, 2000. FINDING OF FACT The evidence demonstrates the veteran's entitlement to nonservice-connected disability pension arose on January 20, 2000; the earlier evidence of record is persuasive that he was not both permanently and totally disabled prior to that date. CONCLUSION OF LAW An effective date earlier than January 20, 2000, for the grant of nonservice-connected disability pension is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2003). REASONS AND BASES FOR FINDING AND CONCLUSION I. Earlier Effective Date VA regulations provide that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2003). An award of disability pension may not be effective prior to the date entitlement arose. 38 C.F.R. § 3.400(b)(1). VA law provides that pension shall be paid to each veteran of a period of war who meets the service requirements and who is permanently and totally disabled because of a nonservice- connected disability, which is not the result of the veteran's willful misconduct. 38 U.S.C.A. § 1521(a) (West 2002); 38 C.F.R. § 3.3 (2003). The Court has held that permanent and total disability for pension purposes can be established under VA regulations by "objective" and "subjective" standards. Brown v. Derwinski, 2 Vet. App. 444, 446 (1992); see also Talley v. Derwinski, 2 Vet. App. 282 (1992). The two ways that permanent and total disability may be shown are: (1) the veteran must be unemployable as a result of a lifetime disability (the "subjective" standard which is based on the disabilities, age, occupational background, and other related factors of the individual veteran whose claim is being adjudicated) or, (2) even if not unemployable, if the veteran suffers from a lifetime disability which would render it impossible for the average person with the same disability to follow a substantially gainful occupation (the "objective" standard which is based on the percentage ratings assigned for each disability from the Schedule for Rating Disabilities, 38 C.F.R., Part 4 (Rating Schedule). Brown, at 446. The "objective" standard requires demonstration of specific minimum percentage ratings and the permanence of those percentage ratings for pension purposes. 38 C.F.R. §§ 4.16(a), 4.17 (2003). Generally, total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing, which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340 (2003). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In an April 1979 memorandum the veteran resigned from his position as a financial assistant with the department of social services. His resignation was due to health reasons. At the January 1987 VA examination the veteran's hearing was within normal limits, bilaterally. The ENT examination diagnosis was Meniere's disease. The veteran's former employer completed and returned VA From 21-4192 in March 1988. The veteran's former employer indicated that he worked from January 1985 to March 1986 as a clerk. The reason for the veteran's termination of employment was vertigo. The veteran last worked in March 1986. In July 1988 the RO received a written statement from a private doctor that the veteran was under his professional care during the years 1970 to 1971 for recurrent vertigo (peripheral vestibulopathy) and allergic rhino phyarngitis. At the October 1992 VA audiology examination the veteran's hearing was within normal limits. The ENT diagnosis was labyrinthine hydrops, allergic in nature. The VA ENT examiner noted that the veteran's brain MRI, done in June 1991, was normal. X-rays of the paranasal sinuses, done in October 1992, were essentially negative. The January 20, 2000, VA general medical examiner commented that episodes of vertigo and tinnitus with severe loss of balance interfered with the veteran's ability to perform any job and maybe dangerous and propense to injuries. At the examination the veteran did not complain of vertigo. The veteran reported his occupational history as office worker, accountant. On neurological examination the veteran had labyrinithitis, vertigo and tinnitus in the right ear with Meniere's syndrome with history and diagnosis in the past of labyrinithin hydro allergic type. The examination diagnoses included Meniere's syndrome, labyrinthin hydro producing chronic labyrinthitis and vertigo, and right ear tinnitus. The January 2002 VA examiner did not find any evidence pointing to the fact that the veteran was unable to secure and follow a substantially gainful occupation due to his Meniere's disease from December 1989 to January 20, 2000. His opinion was based on extensive review of the claims folder, interview, and examination of the veteran. He stated that the symptomatology seemed to be the same as it was in January 2000. Based on the reports of the professionals who followed the veteran, his symptomatology did not change significantly in that eleven years. Several consultations were noted in the chart in which recurrent symptomatology of vertigo was noted from 1989 to 2000. One doctor commented, on January 20, 2000, that episodes of vertigo and tinnitus with severe loss of balance interfered with the veteran's ability to perform any job and may be dangerous. During the January 2002 VA examiner's review of the record, no other note was seen that claimed the veteran was unable to perform any kind of job. The January 2002 VA examiner indicated that it is important to know that the veteran refused several offers to consider Vocational Rehabilitation which would be useful to determine if he had capability to be reassigned or retrained to perform different job activities. He wrote that in several of the notes made by social workers it seemed to be apparent that the veteran was not interested in any kind of Vocational Rehabilitation but in obtaining pension from the VA. The January 2002 VA examiner stated that the veteran admitted that he was not interested in rehabilitation and the veteran stated that his apathy to rehabilitation came from the point that he knew that he was not capable of doing any activity. The veteran complained of recurrent deficits that involved hearing loss as well as tinnitus and severe dizziness (light headness). Based on the previously mentioned facts, the January 2002 VA examiner did not find any statements or significant evidence except for the veteran's complaints, that point that he was not able to perform any activity (job related) between December 1989 and January 2000. In a December 2002 letter addressed to the veteran's counsel Dr. Singer, a private physician, opined that it is more likely than not that the veteran became unable to perform a substantially gainful occupation as of 1984. He reviewed the veteran's service medical records, post-service medical records, MRI and diagnostic reports, statements of the case, medical consultations and medical literature. Based upon his review of the medical record it was Dr. Singer's opinion that the veteran's shoulder injury and persistent dizziness and vertigo related to Meniere's disease precluded him from substantial gainful employment consistent with his age, education and work experience. He goes on to list the specific medical evidence reviewed. Dr. Singer wrote that the veteran's episodes of vertigo are variable, but occurred approximately every two to three days and often persist for two to three hours in duration. He stated that these symptoms became progressively worse and became disabling about 15 to 20 years ago. Dr. Singer indicated that the veteran's functional capacity is further limited by his pre-existing impairment involving his left shoulder secondary to recurrent dislocation degenerative arthritis with restricted range of motion. In January 2004 the Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. opined that it was likely as not that the veteran was able to secure and follow a substantially gainful occupation despite his disabilities caused by recurring vertigo. In his comprehensive review of the claims file he was compelled to state that the diagnosis of Meniere's disease in the veteran given the techniques listed did not meet current standards of care for diagnosing Meniere's disease or any form of labyrinthine hydrops. Classical Meniere's disease includes a low frequency sensorineural hearing loss or a flat configuration graph of a sensorineural hearing loss. Some fluctuation in hearing is integral to the diagnosis. The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. wrote that in early cases or mild cases the standard audiogram may not detect the hearing disturbance and an electrocochleography may detect the abnormality in the cochlea demonstrating a summating potential to action potentional ration >0.5. Electrocochleography was not performed on the veteran. He stated that other tests such as Urea dehydration and Glycerol serial audiometric test after administration of the above osmotic diuretics is useful if hearing loss was present. Additionally, the ENG may be abnormal or normal in Meniere's disease. The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. indicated that in the veteran, the ENG performed demonstrated a classical Dix Hall pike response and a left reduced vestibular response was noted. The audiologist conclusion was that a left peripheral vestibular pathology was present. More specifically, the classical (+) Dix Hall pike and nystagmus in the head turned position (right beating nystagmus) was consistent with benign paroxysmal positional vertigo, also a chronic condition, but never affecting hearing. The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. wrote that the veteran likewise never demonstrated hearing loss. He opined that in the absence of an electrocochleography or a fluctuating hearing loss, the present diagnosis of Meniere's disease in the veteran was below present standards of diagnosis of Meniere's disease. The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. stated that management may be affected by the diagnosis standard e.g. Positional Vertigo may be treated rapidly and successfully with Epley maneuvers and / or Cawthorne's vestibular (DDT) exercises. He indicated that the veteran was treated largely with Dramamine and Antivert. The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C.'s comprehensive review of the file failed to confirm the diagnosis of Meniere's disease in the first place. He wrote that considering the symptoms regardless of the diagnosis, he found no evidence that the veteran was unable to perform in a substantially gainful occupation due to his vertigo from December 7, 1989, to January 20, 2000. The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. indicated that symptomatology was generally unchanged in that time period and from prior noted periods. Vocational Rehabilitation was not pursued. He stated that better certainty in the diagnosis might have long ago lead to serious medical rehabilitation. If an electrocochleography had been done and confirmed the diagnosis as being consistent with Meniere's disease, salt restriction and low salt diet should have been instituted. The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. wrote that patients exhibiting the same symptoms noted in Dr. Singer's note citing symptoms of vertigo from April 1973 to the present, intermittently, do still perform gainful employment. He stated that in the veteran this should be facilitated by his excellent formal education giving him options not requiring extreme physically challenging work (along with an understanding employer). The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. indicated that given only the frequency of vertigo episodes accounted for in the records (although every episode may not be recorded) trying not to speculate, he found that in an occupational medical sense the veteran was as likely as not, able to secure and follow a substantially gainful occupation (assuming up to three to four absences per month were tolerated by the employer). In March 2004, in response to the opinion of The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. the veteran's counsel submitted a differing opinion from Dr. Bash, M.D., Radiology Consulting. Dr. Bash's independent medical evaluation was addressed to the veteran's counsel. Dr. Bash indicated that he reviewed the veteran's claims file for the purpose of making a medical opinion concerning his disabling vertigo (peripheral vestibular disorder) and his ability to perform gainful work. He paid close attention to the several conflicting medical opinions contained in the record. Dr. Bash stated that in order to make this decision he carefully reviewed the service medical records, post service medical records, imaging reports, lay statements, written statements from three other doctors, and medical literature. Dr. Bash wrote that in review of the record it is clear that the veteran complained of some sort of vertigo type illness ever since he was in the service. He indicated that this problem was diagnosed and evaluated by ENT evaluation in 1977, Neurology evaluation in 1986, Audiology evaluation in 1987 and other physician evaluations by eight other doctors. Dr. Bash stated that the recent evaluation by The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. suggests that the opinions of the above listed eight to ten physicians were incorrect because he felt that the veteran's symptoms fell below present standards of diagnosis of Meniere's disease simply because he stated that the veteran did not have fluctuating hearing loss. He averred that The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. may not have had the entire record to review because the record documented hearing loss on audiology tests, which another doctor documented. Dr. Bash wrote that recent examinations by three other doctors all document hearing loss of fluctuations in hearing loss. He indicated that The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. went on to say that it is true that in mild cases of Meniere's disease standard audiograms will not detect the abnormality and that the Dix Hall pike pathology was consistent with some form of vertigo which suggests that the veteran's clinical information is not really inconsistent with Meniere's type pathology. It was Dr. Bash's opinion that the veteran's record contains enough abnormal vestibular information and prior medical opinions (eight to ten in total) to feel secure with the fact that the veteran had a longstanding form of vertigo since service time, which was most likely of the Meneire's type. Dr. Bash understood the concerns of The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C., however, The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. did not offer an alternative diagnosis to account for the veteran's longstanding symptoms and clinical tests / findings or explain why the previous eight to ten physicians were wrong in their analysis / diagnosis. Dr. Bash stated that The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. mentioned paroxysmal positional vertigo but failed to give the diagnosis to the veteran and failed to mention that this was not always a benign condition. Dr. Bash wrote that according to Merritt's textbook of neurology benign positional vertigo may be incapacitating; surgical section of the posterior ampillary nerve relieves the symptoms. He indicated that another reference by Cummings stated that Dix and Hall pike reviewed the previous studies of BPPV, including the temporal bone histology of several patients who had experienced the disorder. He (Cummings) noted extra utricular destruction in their patients and damage to other structures supplied by the anterior vestibular artery. Dr. Bash discounted The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. suggestion that the veteran's vertigo diagnosis was essentially incorrect because The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. did not consider all types of peripheral vestibular disorders as acknowledged by Merritt and Cummings. Dr. Bash noted that the differential diagnostic list for vertigo at least 25 other causes as described by Merritt. After reviewing the record and the above medical opinions it was Dr. Bash's opinion that the veteran had a disabling type of vertigo, likely Meneire's disease, since service and he had been unable to work due to his vertigo since 1987. Dr. Bash's opinion was consistent with the medical opinions of two other doctors. Dr. Bash wrote that the case was well within his area of expertise because he performed and interpreted plan x-rays, CT scans, ultrasounds, nuclear medicine scans and MRI scans on thousands of patients with central nervous system abnormalities (including vertigo) and he correlated his findings with the clinical record. The veteran had several of these imaging studies. The Board recognizes that Dr. Bash is an Associate Professor of Radiology and Nuclear Medicine at the Uniformed Services University of the Health Science. Dr. Singer, FAAPRM, is Board Certified in Physical Medicine and Rehabilitation. An opinion may be reduced in probative value even where the statement comes from someone with medical training, if the medical issue requires special knowledge such as is the case here. See Black v. Brown, 10 Vet. App. 279 (1997); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). See, too, Madden v. Gober, 125 F.3d 1477 (Fed.Cir.1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Timberlake v. Gober, 14 Vet. App. 122, 128 (2000); Gonzalez v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000). The veteran contends that he was unable to work prior to January 20, 2000, due to the severity of his Meniere's disease. Meniere's disease encompasses hearing loss tinnitus and vertigo resulting from nonsuppurative disease of the labyrinth with the histopathologic feature of endolymphatic hydrops (distention of the membranous labrynith). Otolaryngology is the branch of medicine concerned with medical and surgical treatment of the head and neck, including the ears, nose, and throat. Neither Dr. Bash nor Dr. Singer is a specialist in otolaryngology. Neither of them are an ears, nose, and throat specialist. The January 2004 VA opinion is that of The Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C. The Board has legitimate reason to favor the January 2004 VA examiner's medical opinion over that provided by a radiologist or a physical rehabilitation specialist since the VA opinion comes from a specialist in the area of otolaryngology. Dr. Bash has provided inaccurate information in his medical opinion. He stated that the veteran's record documented hearing loss on audiology tests, which another doctor documented. This is an incorrect statement of the facts in the record. As indicated above at the January 1987 VA examination the veteran's hearing was within normal limits, bilaterally. At the October 1992 VA audiology examination the veteran's hearing was within normal limits. Dr. Bash's opinion is based on an inaccurate factual premise, as the record clearly showed that the veteran's hearing was within normal limits. The Board is not bound to accept medical opinions, which are based on an inaccurate factual premise. See Lee v. Brown, 10 Vet. App. 336 (1997); Reonal v. Brown, 5 Vet. App. 458 (1993). As noted above, the Board finds the January 2004 Chief, Otolaryngology - Head and Neck Surgery Department of Surgery of the VA Medical Center, in Washington, D. C opinion as to the severity of the veteran's Meniere's disease prior to January 20, 2000, persuasive. The persuasive evidence also demonstrates that the veteran was considered employable prior to the January 20, 2000, VA examination. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evidence of record demonstrates the veteran's entitlement to nonservice-connected disability pension arose on January 20, 2000. The earlier evidence of record is persuasive that he was not both permanently and totally disabled prior to that date. II. VCAA In November 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA). Among other things, this law includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. With few exceptions, this law is applicable to all claims filed on or after the date of enactment, or filed before the date of enactment and not yet final as of that date. The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA as of that date, with the exception of the amendments to 38 C.F.R. § 3.156(a) relating to the definition of new and material evidence and to 38 C.F.R. § 3.159 pertaining to VA assistance in the case of claims to reopen previously denied final claims (the second sentence of § 3.159(c) and § 3.159(c)(4)(iii)), which apply to any claim to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). In this case, VA's duties have been fulfilled to the extent possible. VA must notify the veteran of evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was notified of the information necessary to substantiate the claim by means of the discussion in the October 2002 RO letter. Specifically, in the October 2002 RO letter the RO informed the appellant of the following: 1.) What must the evidence show to establish entitlement; 2.) What the appellant could do to help with the claim; 3.) VA's duty to assist the appellant to obtain evidence for the claim; 4.) What has been done to help with the appellant's claim. Therefore, VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board observes that VA's Office of General Counsel has determined that the fourth element of the notice requirement as proposed in Pelegrini v. Principi, 17 Vet. App. 412 (2004) is dictum and not binding on VA. That is, General Counsel has opined that 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) do not require VA to send additional notice in order to request that a claimant provide any evidence in his possession pertaining to the claim, and do not require VA to seek evidence from a claimant other than that identified by VA as necessary to substantiate the claim. See VAOPGCPREC 1- 04 (February 24, 2004). This opinion is binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507 (2003). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West Supp. 2002); 66 Fed. Reg. 45,620, 45,630-31 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(c), (d)). Here, the appellant was afforded VA medical examinations in January 1987, October 1992, January 2000, and January 2002. In addition, the RO obtained the veteran's service medical records and post service private and VA medical records. There is no indication that additional relevant medical records exist. After reviewing the record, the Board is satisfied that all relevant facts with respect to the claim in the instant case have been properly developed. Under the circumstances of this case, a remand 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 to flowing to the veteran are to be avoided). Moreover, given the completeness of the present record which shows substantial compliance with the notice and assistance provisions of the new legislation the Board finds no prejudice to the appellant by proceeding with appellate review. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The RO provided the appellant with the pertinent evidentiary development that was codified by VCAA and the implementing regulations. In addition to performing the pertinent development required under VCAA and the implementing regulations, the RO notified the appellant of his right to submit evidence. It would not breach his rights under VCAA and/or the implementing regulations for the Board to proceed to review the appeal. ORDER Entitlement to an effective date earlier than January 20, 2000, for the grant of nonservice-connected disability pension is denied. ____________________________________________ C. P. RUSSELL 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