Citation Nr: 0331564 Decision Date: 11/14/03 Archive Date: 11/25/03 DOCKET NO. 01-08 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an ear disorder. 4. Entitlement to service connection for residuals of a right leg injury and scars. 5. Entitlement to service connection for emphysema. 6. Entitlement to service connection for lung cancer. 7. Entitlement to service connection for a bilateral knee disorder secondary to the service-connected disability of the feet. 8. Entitlement to service connection for a back disorder secondary to the service-connected disability of the feet. 9. Entitlement to service connection for a bilateral hip disorder secondary to the service-connected disability of the feet. 10. Entitlement to an increased rating for callus formation of the feet with history of bilateral plantar warts, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran served on active duty from April 1947 to April 1950. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from ratings decision by the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). In correspondence received in August 2002 the veteran's representative indicated that the veteran no longer wanted a Board or RO hearing. FINDING OF FACT A physician has linked the veteran's tinnitus to service. CONCLUSION OF LAW Tinnitus was incurred in the veteran's active military service. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA shall assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by VA. In view of the disposition on the issue of tinnitus, the VCAA need not be addressed for this matter. Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the March 2001 VA audiological examination the veteran made complaints of ringing in the years since the 1950s. While VA examiners have noted the veteran's complaints of tinnitus, the VA examiners did not state whether the veteran's tinnitus was related to his military service. A June 2000 private examiner did state, however, that the veteran's tinnitus could be the result of noise exposure while serving in the military. The June 2000 private examiner noted that there was no evidence of definite prior injury. Resolving all doubt in the veteran's favor, the Board finds that the June 2000 private examiner's opinion has linked the veteran's tinnitus to service. As such, service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA) redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2003). VA is required to provide the claimant with notice of what information or evidence is to be provided by the Secretary and what information or evidence is to be provided by the claimant with respect to the information and evidence necessary to substantiate the claim for VA benefits. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). While the October 2001 Statement of the Case provided the veteran with notice of the law and implementing regulations of the VCAA, the veteran was not provided with specific written notice of the information necessary to substantiate the claims, and in particular what evidence, if any, would be gathered by the veteran, and which evidence would be provided by VA. Such notification must be provided-including notice that the veteran has a full year to respond to the VCAA notice. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003). In addition, a review of the claims file reveals that the veteran has not had the chance to undergo a VA examination that addresses his contentions concerning the issues of entitlement to service connection for: an ear disorder, residuals of a right leg injury and scars, a bilateral knee disorder secondary to the service-connected disability of the feet, a back disorder secondary to the service-connected disability of the feet, and a bilateral hip disorder secondary to the service-connected disability of the feet. As for the issue of entitlement to an increased rating for callus formation of the feet, the Board finds that as new regulations pertaining to Diagnostic Code 7819 have been promulgated (the rating criteria at 38 C.F.R. § 4.118 were changed effective August 30, 2002), this case should again be reviewed prior to adjudication by the Board. Therefore, in order to ensure due process, the case is REMANDED for the following actions: 1. The veteran's claims folder should be reviewed to ensure that all VCAA notice and development obligations have been satisfied. This action should include written notice to the veteran and his representative of the provisions of the VCAA and the laws applicable to the claim, as well as the roles of VA and the veteran in identifying and gathering evidence relevant to the claim per Quartuccio. 2. The veteran should be afforded appropriate VA examinations to determine the nature and etiology of any ear (not including tinnitus), right leg with scar, knee, back, and hip disorder found to be present. As for any such diagnosed ear and right leg with scar disability, the examiner(s) should offer an opinion as to whether it is at least as likely as not that the ear disability or right leg with scar disability is related to the veteran's military service. As for any diagnosed bilateral knee disorder, back disorder, and hip disorder, the examiner(s) should offer an opinion as to whether it is at least as likely as not that any diagnosed knee, back, or hip disorder is related to the veteran's service-connected disability of the feet. A complete rationale for all opinions expressed should be provided. 3. The veteran should be afforded a VA examination to determine the nature and severity of his service-connected callus formation of the feet with history of bilateral plantar warts. The examiner should specifically opine whether foot pain is at least as likely as not attributable to the service-connected foot disability. 4. The issues should again be reviewed on the basis of the additional evidence. If the benefits sought are not granted in full, the veteran should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ John E. Ormond, Jr. 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