Citation Nr: 0332167 Decision Date: 11/19/03 Archive Date: 11/25/03 DOCKET NO. 02-03 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased evaluation for the left glenohumeral joint with degenerative joint disease, tendonitis, and ankylosis, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. M. Davis, Associate Counsel INTRODUCTION The veteran served on active duty from February 1957 to August 1957. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The RO increased an evaluation for left glenohumeral joint with degenerative joint disease and tendonitis from 20 percent to 30 percent disabling from February 29, 2000. The RO awarded a temporary total disability evaluation based upon convalescence from September 20, 2000 to October 31, 2000. The veteran has not appealed the effective dates of these evaluations. The agency of original jurisdiction, in a supplemental statement of the case, recharacterized the disorder to include ankylosis. Although this recharacterization should have been done in a rating decision, this error is harmless and not prejudicial to the veteran. FINDING OF FACT Left glenohumeral joint with degenerative joint disease, tendonitis, and ankylosis is characterized by no more than intermediate ankylosis between favorable and unfavorable ankylosis of scapulohumeral articulation. CONCLUSION OF LAW Left glenohumeral joint with degenerative joint disease, tendonitis, and ankylosis is no more than 30 percent disabling. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5201, 5202 (2003). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law 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. The final rule implementing the VCAA is codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA (November 9, 2000), and to claims filed before the date of enactment but not yet final as of that date. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). First, VA has a duty to notify the veteran of the evidence and information necessary to substantiate his claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the February 2002 statement of the case, the RO provided the veteran with the text of the rating criteria for Diagnostic Codes 5200, 5201, 5202, and 5203, pertaining to scapulohumeral articulation, limitation of motion of the arm, other impairment of the humerus, and impairment of the clavicle or scapula. Second, VA has a duty to inform the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. In the February 2001 VCAA letter, the RO stated that it would make reasonable efforts to help the veteran obtain records relevant to his claim. The RO stressed that it was ultimately the veteran's responsibility for giving the RO the information or evidence to support his claim. Under a heading entitled "What Do You Need to Complete Your Claim," the RO stated that the veteran should submit dates and places of treatment at a military facility or VA facility since discharge, and reports from private physicians, if any, who had treated him since discharge. Under a heading entitled "What Evidence Will VA Request," the RO stated that it would obtain treatment reports from military or VA facilities, and that it was VA's responsibility to develop all relevant evidence in the custody of a federal department or agency, including VA medical records, Social Security Administration records, or evidence from other federal agencies, if the veteran notified the RO that those records exist. The RO also stated that it was VA's responsibility to develop for private records and lay or other evidence, and to provide an examination or obtain a medical opinion if necessary for the veteran's claim. Third, VA must 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. In this case VA has obtained the VA treatment records identified by the veteran. He has not indicated the existence of any additional records that would aid in substantiating his claim. For the reasons stated above, the Board finds that the requirements of the VCAA have been met. II. Factual Background Service connection for recurrent dislocation of the left glenohumeral joint was established in a 1961 rating decision. A 20 percent disability evaluation was assigned. In September 1996, the disorder was rated under Diagnostic Codes 5010 and 5202. In July 2000, the disorder was classified as recurrent dislocation of the left glenohumeral joint with degenerative joint disease. The 20 percent disability evaluation was continued. In February 2002, the disorder was reclassified as left glenohumeral joint with degenerative joint disease and tendonitis and a 30 percent disability evaluation was assigned under Diagnostic Code 5201. The Decision Review Officer reclassified the disorder to include ankylosis. The 30 percent disability evaluation was continued. In an April 2000 VA examination report, the veteran stated that his left shoulder locked up with quick movement, and that he had loss of range of motion and 7 out of 10 severity constant pain involving his entire joint, with radiation to the left scapula. At times the pain radiated down through the left axilla and into the left flank. For the prior three to four weeks he had intermittent burning of the left second digit. His pain was worse when he drove longer than 15 to 20 minutes, when he rested his left arm on top of a desktop for 15 minutes, when he attempted to fish, and when he slept on his left side. He reported that it was very difficult for him to dress because of the pain and loss of range of motion, and that the pain was relieved by sitting in a hot tub, taking Tylenol with codeine, and using a TENS unit. He stated that he was no longer able to reach beyond the level of his shoulder and had to give up obtaining firewood. He moved from a house to an apartment because of his inability to perform the necessary chores. He was unable to continue his work as an automotive mechanic. The examiner noted that the veteran sat slightly leaning with his torso to the right, elevating his left shoulder. He gave excellent effort and exhibited pain behavior at the maximum of his range of motion testing and with motor testing. Motor strength was 5 out of 5 with pain elicited with left shoulder testing. Deep tendon reflexes of the biceps was 2+, brachial radialis trace. Abduction was to 46 degrees, limited by pain. Flexion was to 92 degrees, limited by pain. Extension was to 23 degrees on the left, limited by pain. There was a nontender, nonadherent surgical scar. There was no muscle wasting. A July 1999 x-ray of the left shoulder showed moderate degenerative changes of the glenohumeral joint, with periarticular osteophytes, as well as some joint space narrowing. There was calcification of the supraspinatus tendon, with a small lucent area with a sclerotic rim, and an adjacent dense area in the cortex, suggesting a prior old injury along the lateral border of the proximal humeral metaphysic. The impression was moderate degenerative changes of the glenohumeral joint, calcific supraspinatus tendonitis. The examiner noted that a May 2000 MRI of the left shoulder showed advanced arthritic change. The glenoid, humeral head and cartilaginous structures appeared to be thinned. There was osteophytosis about the inferior medial aspect of the humeral head. Superolaterally there was irregular erosion of the humerus. There were small subchondral cyst-like structures. The rotator cuff was quite thinned and there was hypertrophy of the acromioclavicular joint perhaps leading to an impingement upon the rotator cuff and subsequent thinning. In addition, there was increased signal in the supraspinatus tendon and there was fluid in the subdeltoid bursa suggesting there was perhaps a tear of the rotator cuff. The impression was chronic degenerative changes and cartilaginous thinning and also probably an impingement with degenerative changes of the rotator cuff with potential tear. The final diagnosis was traumatic arthritis with impingement and probably rotator cuff tear, calcific supraspinatus tendonitis. In a September 2000 post-operative report, the examiner noted that the veteran underwent a subacromial decompression of the left shoulder. Upon examination under anesthesia, the veteran had limited passive abduction to around 100 degrees; he had passively about 60 degrees of internal rotation and about 50 degrees of external rotation. The examiner noted that there was no evidence of a defect of the rotator cuff. The postoperative diagnosis was tendonitis of the rotator cuff on the left side and degenerative joint disease. In an October 2000 statement, the veteran asserted that his condition had worsened to the point that surgery was required. An October 2000 VA outpatient treatment report noted that the veteran was two weeks status post left shoulder acromioplasty, which was still sore but getting much better by the day. Upon objective examination, the wound looked good with no signs of infection. There was still limited range of motion. The plan was to start passive range of motion exercises only and pendulum swings. A November 2000 VA outpatient treatment report noted that the veteran still had some lingering pain which was diffuse. The veteran also had degenerative joint disease of the left shoulder, which was largely responsible for the decreased range of motion and ongoing pain. A December 2000 VA outpatient treatment report noted that the veteran still had some lingering discomfort about the shoulder, and range of motion was a bit better. The examiner noted that it would never be normal because of the degenerative joint disease in the shoulder joint itself. The examiner also noted some degenerative changes at the acromioclavicular joint which persisted. In a February 2001 VA outpatient treatment report, the veteran complained of continued pain in the shoulder, grade 7 to 8. The assessment was left shoulder impingement and degenerative joint disease, status post left shoulder acromioplasty. In an April 2001 VA outpatient treatment report, the veteran complained that he still had pain, and that about two months prior he rolled onto his left shoulder in bed and felt a snap, which was painful. He had a depression in the muscle. The examiner noted that there was a defect at the anterolateral aspect of the acromion, and that he had about 70 degrees of flexion and 70 degrees of abduction, with some weakness with external rotation. There was positive impingement. The examiner suspected that the veteran had avulsed the deltoid from the acromion and stated that he would like to rule out a cuff tear, as the veteran did not have one at the time of surgery. The examiner noted that the entire shoulder condition started after the episode in bed. A May 2001 VA outpatient treatment report noted that the veteran had an MRI that day and that the rotator cuff was intact. There were still some signal changes and signs of persistent impingement, worse than before. He had torn off some of his deltoid insertion which explained the soft tissue mass anteriorly. There was good strength in the cuff, but he still had some impingement signs. The examiner noted that the veteran needed to work on range of motion. In a June 2001 statement, the veteran asserted that in 1974 a private surgeon operated on and wired his shoulder, and that in September 2000 the VA Hospital in Spokane repaired his shoulder again. He stated that he was having so much pain that he went back and that after tests and an MRI it was found that the muscles on the top of his shoulder had torn loose. He stated that this caused excruciating pain and decreased use of his arm. An August 2001 VA outpatient treatment report noted that the veteran still had pain but was dealing with it. He still had limited range of motion, but was not anxious to have another surgery. The examiner noted that the veteran still had the deformity of the ruptured anterior deltoid and limited abduction; the assessment was status post multiple shoulder surgeries with muscle spasms and adhesions. A January 2002 VA outpatient treatment report noted that the veteran's main problem was his left shoulder, and that he had more pain since surgery. There was pain to palpation of the left shoulder. The assessment was status post left shoulder acromioplasty, left shoulder impingement and degenerative joint disease. In a February 2002 VA outpatient treatment report, the veteran reported constant pain at a 5 out of 10. The pain would be aggravated during the course of the day related to the activities of daily living, leading to pain at an 8 out of 10. The veteran experienced about three breakthrough episodes per day related to activities of daily living. The pain was in the left shoulder and the muscles in the left side of the neck. The breakthrough pain would resolve to an acceptable range of 5 out of 10 after about 30 to 45 minutes after taking codeine and cyclobenzaprine. Aggravating factors included sitting in one position for a long period, increased physical activity, lifting small objects, and lying on the left shoulder. The assessment was chronic left shoulder pain and degenerative joint disease. Current medications provided inadequate pain relief with limited beneficial impact on activities of daily living and quality of life. The veteran stated that he would like his pain to be treated more aggressively as it significantly impaired his quality of life, and that he was willing to take the risk associated with chronic use of opioids medications. In a March 2002 statement, the veteran asserted that he had constant pain in his left shoulder, and that sometimes the pain would be so bad that it would shoots towards his heart. He stated that the muscles had torn loose in his shoulder and that apparently no additional surgery would correct this condition. In a May 2002 VA outpatient treatment report, the veteran complained of chronic left shoulder pain, with the pain being a 5 to 6 out of 10. In a November 2002 VA examination report, the veteran reported having increasing recurrent dislocation of the left glenohumeral joint with degenerative joint disease and tendonitis. He reported that the shoulder hurt all the time. The examiner noted that there was functional impairment in that the veteran had permanent loss of movement of the shoulder. The examiner noted that the dominant hand was the right hand. The examiner also noted that there were two large incisions anteriorly on the left shoulder in circular fashion, 10 centimeters in length longitudinally and another healed incision, more anteriorly 8 centimeters parallel to the old incision. Flexion was to 90 degrees, abduction was to 60 degrees, external rotation was to 30 degrees, and internal rotation was to 40 degrees. The examiner stated that range of motion of the left shoulder was affected by pain, weakness, lack of endurance, "intolerance" and incoordination. Range of motion of the left shoulder was not additionally affected by fatigue. Ankylosis was present on the left. The examiner entered an assessment of degenerative arthritis and tendonitis of the left shoulder with frozen shoulder and ankylosis, status post multiple surgeries for recurrent dislocation, left glenohumeral joint, with a subjective factor of pain and an objective factor of decreased range of motion and left shoulder scars. In an addendum, the examiner noted that the flexion was unfavorable, and that the abduction, external rotation, and internal rotation were favorable. III. Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. See 38 U.S.C.A. § 1155 (West 2002). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2003). Under Diagnostic Code 5200, for the nondominant side, ankylosis of scapulohumeral articulation, when favorable, with abduction to 60 degrees and ability to reach mouth and head, warrants a 20 percent disability rating; intermediate between favorable and unfavorable warrants a 30 percent disability rating, and unfavorable, with abduction limited to 25 degrees from the side warrants a 40 percent disability evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5200 (2003). Under Diagnostic Code 5201, for the nondominant side, limitation of motion of the arm at shoulder level warrants a 20 percent disability evaluation, limitation of motion of the arm midway between side and shoulder level warrants a 20 percent disability evaluation, and limitation of motion of the arm to 25 degrees from the side warrants a 30 percent disability evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2003). Under Diagnostic Code 5202, for the nondominant side, malunion of the humerus with moderate or marked deformity warrants a 20 percent disability rating, recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes, and guarding of movement only at shoulder level, warrants a 20 percent disability rating, recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 20 percent disability rating, fibrous union of the humerus warrants a 40 percent disability rating, nonunion of the humerus (false flail joint) warrants a 50 percent disability rating, and loss of the head of the humerus (flail shoulder) warrants a 70 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2003). Disability evaluations are based on functional impairment. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2003). Functional impairment may be due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See id.; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of function due to pain on use, including during flare-ups. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Analysis The Board finds that the preponderance of the evidence is against a grant of an increased evaluation for left glenohumeral joint with degenerative joint disease, tendonitis, and ankylosis. The veteran currently has a 30 percent disability evaluation for left glenohumeral joint with degenerative joint disease, tendonitis, and ankylosis. In order to warrant a 40 percent disability evaluation, the next higher evaluation for the nondominant side, there must be scapulohumeral articulation, ankylosis of, unfavorable, abduction limited to 25 degrees from the side under Diagnostic Code 5200, or there must be fibrous union of the humerus under Diagnostic Code 5202. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202 (2003). Further, disability evaluations are based on functional impairment, which may be due to limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2003); DeLuca v. Brown, 8 Vet. App. 202 (1995). In the April 2000 VA examination report, abduction was to 46 degrees, limited by pain. In the September 2000 post-operative report, passive abduction was to around 100 degrees. In the April 2001 VA outpatient treatment report, abduction was to 70 degrees. In the November 2002 VA examination report, abduction was to 60 degrees, which the examiner noted was favorable. The foregoing shows that the veteran does not meet the criteria for an increased evaluation for left glenohumeral joint with degenerative joint disease, tendonitis, and ankylosis. Abduction was not limited to 25 degrees from the side; rather, the minimum abduction was to 46 degrees. Evidence of fibrous union of the humerus is not indicated in the May 2000 MRI report of the left shoulder or in the September 2000 post-operative report of a subacromial decompression of the left shoulder. The veteran consistently reported pain on movement, from a 5 out of 10 to an 8 out of 10, that he was in constant pain from his left shoulder condition, and that his activities of daily life were impaired by this pain. This functional impairment is already included in the current 30 percent disability evaluation. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2003); DeLuca v. Brown, 8 Vet. App. 202 (1995). It must be noted that the court has limited the DeLuca factors to limitation of motion codes. The appellant is already receiving the maximum evaluation for limitation of motion, which is 30 percent under Diagnostic Code 5201. See Johnston v. Brown, 10 Vet. App. 80 (1997). Although the veteran has asserted that his left glenohumeral joint with degenerative joint disease, tendonitis, and ankylosis has worsened, he does not have the requisite knowledge of medical principles that would permit him to render an opinion regarding matters involving medical diagnoses or medical etiology. See Espiritu v. Derwinksi, 2 Vet. App. 492, 494 (1992). Whether there is a fibrous union of the humerus is a matter of medical diagnosis. The Board acknowledges that the veteran is competent to say that his activities of daily living are curtailed by his shoulder condition, that it has significantly impaired his quality of life, and that he has had decreased range of motion in his left arm. In fact, the evidence supports his reports of pain, limitation of motion, and functional impairment. However, the Board finds the evidence of the medical reports, which document the actual abduction of the left arm to no less than 46 degrees, more probative of the veteran's range of motion and of the severity of his left shoulder disability. The Board also notes that the VA examiner determined that there was unfavorable ankylosis at 90 degrees flexion. The rating schedule is not based on the level of ankylosis at flexion. As such, the Board need not remand for an explanation of how there is ankylosis at 90 degrees yet motion from zero to 90 degrees of flexion. The Board notes that in the April 2000 VA examination report the examiner noted a nontender, nonadherent surgical scar, and in the November 2002 VA examination report the examiner indicated the presence of two scars on the left shoulder. There is no evidence that these scars were unhealed, tender or unstable. Therefore a separate evaluation for a scar is not warranted. In addition, there is no indication of dislocations at any time during the appeal period. therefore, consideration of the criteria governing dislocations does not assist the veteran. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of an increased evaluation for left glenohumeral joint with degenerative joint disease, tendonitis, and ankylosis, and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. Finally, review of the record reveals that the RO has expressly considered referral of this case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2003). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The RO, in the July 2000 rating decision, found that the evidence did not show that this case presented such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. ORDER Entitlement to an increased evaluation for left glenohumeral joint with degenerative joint disease, tendonitis, and ankylosis is denied. ____________________________________________ H. N. SCHWARTZ 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