Citation Nr: 0427203 Decision Date: 09/30/04 Archive Date: 10/06/04 DOCKET NO. 99-21 894A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for residuals of a right nephrectomy performed by VA in February 1997. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Bredehorst, Associate Counsel INTRODUCTION The veteran served on active duty from September 1973 to September 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case was previously before the Board in June 2001 at which time it was remanded for additional development. The Board again remanded the case in May 2003 in order to schedule the veteran for a travel board hearing. To the extent that the veteran claimed that right nephrectomy residuals aggravate his hepatitis C, the appellant should understand that he is already service-connected and compensated for hepatitis C. His contention regarding an increased disability due to hepatitis C is a claim that was adjudicated by the RO in October 2001. The veteran did not appeal that decision, and hence, that issue is not before the Board. On appeal the veteran has raised the issue of entitlement to service connection for depression secondary to multiple service connected disorders. This issue, however, is not currently developed or certified for appellate review. Accordingly, it is referred to the RO for appropriate action. FINDING OF FACT The veteran does not have additional disability associated with residuals of a right nephrectomy that was the result of carelessness, negligence, lack of proper skill, error in judgment, or some other incident or fault on the part of VA, nor as the result of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation benefits under 38 U.S.C.A. § 1151 for residuals of a right nephrectomy in February 1997 at the Clarksburg VA Medical Center have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.358 (2003). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), VA has an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See also, 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2003). VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim including what information and evidence VA will seek to provide, and what information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103. Further, in Pelegrini v. Principi. 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the agency of original jurisdiction or regional office (RO) decision on a claim for VA benefits, even if the claim and initial unfavorable adjudication occurred prior to the effective date of the VCAA. In the Board's view, a September 1999 statement of the case and correspondence dated in August 2001 substantially complies with the aforementioned notice requirements. As for the content of the notice, the veteran was informed that the evidence needed to support his claim was additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. The veteran was notified that VA would obtain medical records from any VA facility he identified and would assist him in obtaining any private treatment records associated with right nephrectomy residuals upon completion of appropriate VA authorization forms. While the VCAA notice was not issued in the chronological manner contemplated by the Pelegrini Court, such an error does not necessarily result in prejudice to the appellant. The record reflects that the veteran was provided with notice of the rating decision from which the current appeal originates. The veteran was provided with a statement of the case and a supplemental statement of the case that notified him of the issue addressed, the evidence considered, the adjudicative action taken, the decisions reached, the pertinent law and regulations, and the reasons and bases for the decisions. In short, the veteran is well aware of the information and evidence necessary to substantiate his claim, he is familiar with the law and regulations pertaining to his claim, and he has not indicated the existence of any outstanding information or evidence relevant to his claim. Indeed, in February 2001, he submitted additional evidence of his own to support his claim in the form of a medical opinion. Based on the procedural history of this case, the Board concludes that VA has no outstanding or unmet duty to inform the veteran that any additional information or evidence is needed. With regard to the duty to assist, VA took appropriate steps to obtain all medical records from the Clarksburg VA Medical Center (VAMC) that were associated with the nephrectomy, schedule examinations, and obtain expert opinions. In light of the foregoing, to the extent that VA may have failed to fulfill either the duty to notify and the duty to assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In this case, however, because there is not a scintilla of evidence that any failure on the part of VA to further comply with the VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. While perfection is an aspiration, the failure to achieve it in the administrative process, as elsewhere in life, does not, absent injury, require a repeat performance. Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). Factual Background Clarksburg VAMC records show that the veteran was seen several times in January 1997. Initially, he complained of a one-month history of right upper quadrant abdominal pain accompanied by nausea and epigastric distress. An echogram/ultrasound revealed a solid mass in the right kidney. The diagnosis was suspicious neoplastic mass lesion. Notes indicated a possible need to differentiate between renal cell carcinoma vs. recurrence of Hodgkin's disease that first occurred 30 years earlier. A computerized tomography (CT) scan resulted in a diagnosis of possible malignancy. Follow up was recommended. An abdominal CT with contrast was conducted, and it revealed a solid mass with a hypodense center in the anterior aspect of the right kidney measuring approximately four centimeters. The primary diagnosis was possible malignancy, follow-up needed. The findings of an echogram revealed a suspicious neoplastic mass lesion in the mid portion of the right kidney. A urology consultation in February 1997 assessed probable hypernephroma. The plan was renal exploration with probable radical nephrectomy. An oncology note dated in February 1997 contained some of the veteran's medical history. The assessment was the veteran had a "history and findings compatible with Hodgkin's disease in remission?" The veteran was stable for planned exploratory surgery the following day to define the nature of the mass in the right kidney. A signed consent form dated in February 1997 notes the operation or procedure was right radical nephrectomy. The nature of the operation was incision in flank and removal right kidney. The description of operation was as noted above. Complications, side effects, or reasonably foreseeable associated risks were listed as infection, bleeding, heart attack, stroke, pneumonia, pneumothorax, recurrence of tumor, and death. The potential benefit of the surgery was the removal of the tumor. "None" was listed under the section designated for other treatment and management of the condition. The February 1997 operative report indicated that the veteran underwent a right radical nephrectomy. The preoperative diagnosis was right renal mass and postoperative diagnosis was probable right renal cell carcinoma. A letter from the American Red Cross dated three days after the surgery indicated that the blood the veteran donated to himself prior to surgery had tested positive for hepatitis C. The unit of blood was available for his scheduled surgery. The veteran was advised to discuss the test results with his physician and was informed that his doctor would also be informed of the test results. A February 1997 pathology examination of the excised right kidney by a VAMC resulted in the diagnosis of renal cell tumor with granular cell/oncocytoid features. The case was forwarded to the Armed Forces Institute of Pathology (AFIP) for review. A March 1997 AFIP consultation report diagnosed an oncocytoma. A supplementary VAMC report dated a week later noted the AFIP findings and indicated that the diagnosis was conveyed to the chief of surgical service and the urology resident. Treatment records dated in October 1997 noted a history of renal cancer that was treated with surgery only. The veteran complained of a strong urine odor that he believed was related to renal cancer or hepatitis C. In November 1997, a nursing assessment note indicated that the veteran had a right nephrectomy due to a rare tumor that was the result of radiation. In January 1998, the veteran submitted documents consisting of several case studies and abstracts obtained through personal research. The studies discussed the identification of and treatment for renal oncocytoma. Oncocytoma was described as an uncommon, benign tumor of the kidney that represents 3 to 10 percent of all solid renal masses. Diagnosis was seldom recognized before the operation. VAMC treatment records dated in August 1998 note right renal tumor status post right nephrectomy. Hepatitis C was diagnosed in March 1997. The veteran was awarded Social Security disability benefits effective from July 1997 due to various medical disorders. The veteran testified during a personal hearing in March 1999. He stated that he applied for a drug study and was told his liver enzymes were high. A private physician told him that he needed an ultrasound so he went to VA. Shortly after undergoing the ultrasound he was told that he had a large tumor on his kidney and that it was renal cell carcinoma. He was scheduled for a biopsy and appointments with urology and surgery departments. The urologist confirmed the diagnosis. When he called the VAMC the morning of the biopsy he was told that it was canceled since the only two forms of kidney tumors were malignant. The same day he was scheduled to undergo exploratory surgery with possible right radical nephrectomy. The kidney was removed and he was never told that the tumor was benign. The doctors knew he had strong radiation treatment as a child and had hepatitis C, both of which affected his kidneys, but they never told him of any problems outside of the cancer. Five days after surgery when the staples were removed the physician still led him to believe that the tumor was cancerous. He had several postoperative visits and it was not until November 1997 that a new oncologist informed him that the tumor had been benign. He later talked to a surgical resident and asked why they did not try other options and was informed that they did not differentiate between the two types of tumors and just remove the kidney. In March 1999, the veteran submitted medical information obtained from the Internet. The information consisted of color photographs of renal oncocytoma and renal cell adenocarcinoma with descriptions of their appearance. The veteran submitted a medical opinion in January 2001 from Craig N. Bash, M.D., a neuro-radiologist. The physician reviewed the veteran's records and opined that hospital/physician that cared for the veteran were negligent in not doing a pre-op renal MRI to evaluate the kidney, not performing a frozen section during the operation, and not performing a nephron sparing partial nephrectomy. He indicated that he could not find a renal angiogram report in the records and that it would have been useful in identifying the internal vascular anatomy and possible surgical planes. Dr. Bash also indicated that the veteran received inadequate pre-op informed consent because other treatments were not discussed. Dr. Bash noted that in light of the veteran's hepatitis C, which was known prior to the surgery, VA was negligent not to have performed a nephron sparing partial nephrectomy because treatment for hepatitis would be limited or precluded by reduced renal function that would result from a full nephrectomy. In February 2001, a friend of the veteran stated that she had medical power of attorney and she was never approached about the removal of a kidney. She indicated that after surgery the surgeon indicated that the tumor was cancerous and that it did not appear to spread to surrounding areas. The veteran testified during a central office hearing in February 2001. He stated that he consented to a right nephrectomy only if the tumor was malignant. He believed that he did not give informed consent because he was not told of alternative treatments. He also discussed literature he gathered on the topic. He also argued that the kidney should not have been removed because of his prior medical history of radiation treatment for Hodgkin's disease, and hepatitis C. The veteran states that the treating physicians knew or should have known this history before the surgery. The veteran testified that due to the nephrectomy, he had frequent voiding and high blood pressure. The rest of his testimony was similar to that which was offered at a previous hearing. VAMC records dated in March 2001 noted that the veteran complained of headaches and dizziness since his nephrectomy. Other records from 2001 indicate that the veteran complained of frequent voiding at night secondary to his right nephrectomy. A September 2002 report of contact indicates that there were no additional medical records located in the veteran's tort file other than those at Clarksburg VAMC. A report from Donna Robino, M.D., a nephrologist at the Wilmington VAMC indicated that she reviewed the veteran's file. She opined that it was not at least as likely as not that the veteran had additional permanent disability following the February 25, 1997, right nephrectomy that he would not have had if he had not under gone this procedure, nor would he have had additional permanent disability following the nephrectomy that he would not have had if he had undergone a nephron sparing partial nephrectomy. The basis for the opinions was that the veteran had normal renal function and normal urinalysis one year postoperatively. His nephrectomy did not cause any damage and the evidence to date showed no change in renal function since the surgery. As to whether the better medical practice would have been to delay any nephrectomy until a preoperative renal magnetic resonance imaging scan was first secured, the physician deferred to the urologist's opinion, but indicated that the literature suggested that imaging was not helpful. As to whether the better medical practice would have been to secure a frozen section first before carrying through with a complete nephrectomy, the physician again deferred to the urologist's opinion, but indicated that literature reports that a frozen section was not always reliable and the tumors have a malignant potential. As to whether the better medical practice would have been to perform a nephron sparing partial nephrectomy, the physician deferred to the urologist's opinion, but indicated that nephrology literature supports a nephrectomy unless there are other medical problems. The physician noted that the veteran had normal renal function, normal urine analysis, and no history of hypertension. To date, urinalysis continued to be normal, but creatine and blood glucose increased. Other possibilities included nonsteroid toxicity with history of chronic pain. The urologist indicated that a nephrectomy was the standard of care when a solid four centimeter tumor is found on CT scan. Scans did not differentiate a renal cell carcinoma from the much rarer oncocytoma. The physician opined that the use of contrast or even a MRI would not have been of much help, and noted that radiographic findings of an oncocytoma are so similar to a renal cell carcinoma that a malignancy would still be the primary concern. The urologist opined that a surgeon must always approach a lesion as a cancer. Exposing the kidney and doing a biopsy of a mass, which as the gross appearance of cancer, is not the standard. Removing the kidney without exposing it is considered the safest approach to prevent spread. This physician further opined that even if a frozen section was done, it was likely that the pathologist could not have made a definitive diagnosis of a benign lesion. He had to send the more reliable permanent sections out to the AFIP for confirmation. Partial nephrectomy is only appropriate if one is dealing with a solitary kidney. The physician noted that renal function remained normal after the surgery, and offered the opinion that the veteran's urinary frequency was not the result of the nephrectomy. The veteran testified during a travel board hearing in March 2004. His testimony regarding the right nephrectomy and events leading up to it was essentially consistent with previous testimony. In addition, the veteran addressed the medical opinions of record, his belief that there was no informed consent prior to surgery, and information he learned about through personal research. Analysis Initially, the Board acknowledges that the June 2001 remand stated that this claim was filed in August 1997. That is erroneous. While the veteran in August 1997 did list "kidney removal (cancer) 97" on his VA Form 21-526, he did not allege that that was a claim for benefits under 38 U.S.C.A. § 1151. Indeed, on an attached VA Form 21-4138, the veteran wrote that he was seeking service connection for hepatitis C, and nonservice connected pension based on his overall health. The veteran did file a claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 in January 1998, and at that time he stated that it was not before November 1997 that he learned that his right kidney tumor was benign. Hence, as a claim for compensation under 38 U.S.C.A. § 1151 was not the filed until January 1998, only the law effective on and after October 1, 1997 is for application in this case. When a veteran suffers additional disability as the result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA and the disability is not the result of his own willful misconduct, disability compensation shall be awarded in the same manner as if such additional disability were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358. In determining that additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. 38 C.F.R. § 3.358(b)(1). Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.358(b)(2). Several conditions govern the determination of whether any additional disability resulted from VA hospitalization or treatment. First, it is necessary for the veteran to show that additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury suffered as the result of hospitalization or medical treatment and not merely coincidental therewith. 38 C.F.R. § 3.358(c)(1). The mere fact that aggravation occurred will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, an examination, or medical or surgical treatment. 38 C.F.R. § 3.358(c)(2). Second, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or treatment administered. 38 C.F.R. § 3.358(c)(3). Section 1151 of Title 38 of the United States Code was modified by section 422(a) of Public Law 104-204, 110 Stat. 2926 (1996), to require not only that the VA treatment in question resulted in additional disability, but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. These amendments apply to claims for compensation under 38 U.S.C.A. § 1151, which were filed on or after October 1, 1997. VAOPGCPREC 40-97; 63 Fed. Reg. 31,263 (1998). In this case, the veteran filed his claim in January 1998; therefore, the amended version of the statute is applicable, and for the veteran to prevail, the evidence must establish that the proximate cause of any additional disability shown to exist was an event that was not reasonably foreseeable, or due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault o n VA's part in furnishing the surgical treatment. In this case, the veteran's main contention was that although he consented to the right nephrectomy, it was not an informed consent because he was not informed of other forms of treatment for the tumor and that he did not consent to the removal of his right kidney if the tumor was benign. After reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim. As shown by the signed consent form, the veteran consented to a right nephrectomy for the removal of a tumor. Despite the fact that physicians believed the tumor was cancerous, there was nothing on the consent form to show that the kidney removal was contingent upon a finding that the tumor was cancerous. A benign tumor is still a tumor. The consent form also indicated that there was no alternative treatment to the nephrectomy. The veteran contends that this was not true and that he should have been informed that a biopsy, frozen section, or a partial nephrectomy were alternatives that should have been discussed and pursued before resorting to a nephrectomy. "Informed consent" is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. See 38 C.F.R. § 17.32 (2003). As shown, regulations only require that the patient be provided an explanation of reasonable and available alternatives and, in this instance, the physician indicated that there were none. Thus, the question raised is whether the alternatives noted by the veteran were both reasonable and available, thereby requiring disclosure. There is no evidence to suggest that the noted alternatives were not available, so the focus turns to whether they were reasonable. An opinion from Dr. Bash indicated that the veteran received inadequate preoperative information because other treatments were not discussed, and that due to their omission, informed consent was not given. Opinions from a VA urologist and a nephrologist suggest otherwise. When faced with conflicting diagnoses the Board must compare and weigh the probative value of the two opposing medical opinions. If they are in equipoise, then the benefit of the doubt is applied in the veteran's favor. Based on the evidence of record, the Board finds that the conflicting opinions are not in equipoise. Unlike the VA physicians, who are specialists in their respective fields of nephrology and urology, Dr. Bash is a neuro-radiologist. While Dr. Bash's title of physician qualifies him to offer a medical opinion, his opinion does not carry as much weight as the opinions offered by VA physicians, who are presumably more experienced with kidney tumors due to their specialties. Cf. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (A medical professional is not competent to opine as to matters outside the scope of his expertise.) Dr. Bash indicated that the veteran did not provide informed consent, since he was not told of the possibility of a partial nephrectomy. Dr. Bash noted that the VA doctors knew the veteran had hepatitis C prior to surgery. Dr. Bash states that the physicians were aware of the impact that hepatitis C has on a person's renal function. Hence, Dr. Bash argues that the veteran should have been informed of a nephron sparing partial nephrectomy. Notably, there is no competent evidence that the VA physicians were aware of the veteran's hepatitis C prior to surgery. Clarksburg VAMC records do not note a diagnosis of hepatitis C prior to surgery. The letter from the Red Cross, which was dated after the surgery, notified the veteran of the diagnosis and stated that his "doctor will also be informed of these test results." The wording of the letter strongly suggests that the Red Cross had not informed VA physicians prior to surgery. For these reasons, the Board finds that Dr. Bash's opinion regarding consent was based on an incorrect assumption. In the absence of hepatitis C as a known risk factor prior to surgery, the opinion does not have sufficient probative value to conclude that a partial nephrectomy was a reasonable course of action. VA physicians, on the other hand, provided statements that indicate a CT scan, biopsy, frozen section, or partial nephrectomy were not reasonable alternatives. Both physicians opined that a scan would have not been helpful in distinguishing a malignant tumor from a benign one. As for performing a frozen section, the nephrologist indicated that pathology reports were not always reliable. The urologist made a similar statement and indicated that a pathologist would likely have had to send out more permanent sections to AFIP for confirmation. In addition, he indicated that lesions were approached as though they were cancerous and that to expose a potentially cancerous kidney to a biopsy was not the standard of care. Regarding a partial nephrectomy, the urologist indicated that this procedure was only appropriate if the veteran only had one kidney. The nephrologist also supported a nephrectomy unless there were other medical problems. In essence, the VA physicians indicated that the Clarksburg VAMC physicians followed the standard procedures when faced with a potentially cancerous tumor. Furthermore, they provided sufficient reasoning for why alternative procedures mentioned by the veteran and Dr. Bash were not appropriate. In light of the fact that alternative methods would not have been helpful in identifying the benign nature of the tumor, and in light of the fact that alternatives recommended by Dr. Bash were not standard procedure, the Board finds that they were not reasonable options. As such, discussion of these options with the patient was not required. Having addressed the veteran's specific contentions, the Board's attention now turns to the other aspects of entitlement. First, the evidence must establish that additional disability occurred as a result of the right nephrectomy. In this regard, the veteran contends that he suffers from increased voiding due to the surgery. There is no medical evidence of record to support this contention. Indeed, a VA urologist has opined that the veteran's urinary frequency was not the result of the right nephrectomy. Additionally, an opinion from the VA nephrologist was that the appellant did not have additional permanent disability following the right nephrectomy based on the fact that he had normal renal function and urinalysis one year postoperatively. As there is no evidence of additional disability as a result of a right nephrectomy, it is reasonable to conclude that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. Accordingly, entitlement to compensation for residuals of a right nephrectomy under the provisions of 38 U.S.C.A. § 1151 is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on next page) ORDER Compensation under the provisions of Title 38, United States Code, Section 1151, for residuals of a right nephrectomy performed by the VA in February 1997, is denied. ______________________________ ______________________________ D. C. SPICKLER GEORGE E. GUIDO, JR. Member, Board of Veterans' Appeals Acting Member, Board of Veterans' Appeals DEREK R. BROWN Member, 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