Citation Nr: 0334077 Decision Date: 12/08/03 Archive Date: 12/16/03 DOCKET NO. 00-09 586A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hypertension, claimed as secondary to service-connected post-traumatic stress disorder. 2. Entitlement to service connection for esophageal reflux, claimed as secondary to service-connected post-traumatic stress disorder. 3. Entitlement to service connection for hiatal hernia, claimed as secondary to service-connected post-traumatic stress disorder. 4. Entitlement to service connection for teeth erosion, claimed as secondary to service-connected post-traumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from March 1959 to March 1979, including two combat tours of duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2001, the veteran testified at a video- teleconference, with the undersigned Veterans Law Judge presiding. During the hearing, the veteran noted that he also had submitted claims for service connection for cardiovascular disease, impotence and cataracts. Those issues have not been developed and are referred to the RO for appropriate action. While the case was at the Board on appeal, the Board took additional development on the issues, pursuant to 38 C.F.R. § 19.9(a)(2) (2003). New evidence was obtained for review and the Board provided the veteran notice as required by 38 C.F.R. § 20.903 (2003). A response has been received from the veteran, to include additional argument and evidence, as well as a written waiver of agency of original jurisdiction of such evidence and a request that the Board immediately proceed with the adjudication of his appeal. FINDINGS OF FACT 1. Service connection has been established for post- traumatic stress disorder (PTSD); eczema; diabetes mellitus, Type II, due to exposure of an herbicide; lipoma of the left shoulder; residuals of a right knee injury; and athletes foot. 2 The positive and negative evidence of record relevant to whether the veteran's post-service hypertension was proximately caused by or due to service-connected PTSD is in relative equipoise. 3. The positive and negative evidence of record relevant to whether the veteran's post-service gastroesophageal reflux disease (GERD) was proximately caused by or due to service- connected PTSD is in relative equipoise. 4. The positive and negative evidence of record relevant to whether the veteran's post-service hiatal hernia was proximately caused by or due to service-connected PTSD is in relative equipoise. 5. The positive and negative evidence of record relevant to whether the veteran's post-service teeth enamel erosion was proximately caused by or due to service-connected GERD is in relative equipoise. CONCLUSIONS OF LAW 1. With application of the benefit of the doubt rule, hypertension is proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2003). 2. With application of the benefit of the doubt rule, gastroesophageal reflux disease is proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2003). 3. With application of the benefit of the doubt rule, hiatal hernia is proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2003). 4. With application of the benefit of the doubt rule, teeth enamel erosion is proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), was signed into law. This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Act and implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. The Board finds that the correspondence sent to the veteran in April 2001, which notified him of the provisions of the VCAA, and multiple letters in June 2002, October 2002 and June 2003, describing what VA would do to assist the veteran, the evidence the veteran needed to provide, and the evidence the VA had, in conjunction with an April 2000 Statement of the Case, provided notice to the veteran of what the evidence of record revealed. Additionally, these documents advised the veteran why the evidence was insufficient to award the benefits sought. Thus, the veteran has been provided notice of what VA was doing to develop the claim, notice of what he could do to help his claim, and notice of how his claim was still deficient. Cf. Quartuccio v. Principi, 16 Fed App. 183 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). In addition, the veteran testified at a video teleconference hearing, with the undersigned presiding. In June 2003, the veteran submitted a written waiver of agency of original jurisdiction consideration of additional argument and evidence, which he submitted directly to the Board. As such, and because the veteran has specifically indicated that there is no additional evidence available, no further assistance is necessary to comply with the requirements of this new legislation, or any other applicable rules or regulations regarding the development of the pending claim. Subsequent to the Board's receipt of the veteran's written waiver, the Board notes that the United States Court of Appeals for the Federal Circuit provided specific criteria pertaining to the notification provisions and the time period in which the veteran could respond to VA. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02- 7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003). However, it would not be prejudicial to the veteran, given the favorable nature of the decision with regard to the issues currently before the Board, if there were any notification or duty to assist provisions deficiency. No further assistance in developing the facts pertinent to the claims is required. Service Connection A veteran seeking disability benefits must establish: (1) status as a veteran; (2) the existence of a disability; (3) a connection between the veteran's service and the disability; (4) the degree of the disability; and (5) the effective date of the disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. See 38 C.F.R. § 3.303(b); see also Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. See Savage, 10 Vet. App. at 495. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." See 38 C.F.R. § 3.303(b). If the disorder is not chronic, it may still be service connected if it is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. Again, whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question. Id. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in- service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board notes that a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a). Section 3.310(a) has been interpreted as authorizing a grant of service connection for disability caused by a service- connected disability, and for the degree of additional disability resulting from aggravation of a nonservice- connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). A. Hypertension Essentially, in correspondence and in his personal hearing testimony, the veteran asserts that he developed hypertension because of his service-connected PTSD, in that medical evidence consistently shows that stress and hypertension are linked in a causal relationship. In the alternative, he maintains he developed hypertension because of his use of Prednisone for treatment of his service-connected skin disease. Review of the veteran's service medical records fails to show any complaints or symptomatology associated with hypertension. His blood pressure readings were consistently within normal range. During his first post-service VA examination, conducted in October 1979, his blood pressure reading was still within normal range. It was not until early 1993 that one of the veteran's VA outpatient treatment reports notes borderline blood pressure, which needed to be monitored. Through follow-up outpatient treatment, hypertension was initially diagnosed in October 1993, with medication prescribed in 1994 for control of elevated blood pressure. Subsequent medical records continue the diagnosis of hypertension. These medical records also note he was being treated with Prednisone from 1982 to 1995 for his service-connected skin disorder. In September 1997, a VA physician was requested to offer an opinion as to whether PTSD caused the veteran's hypertension. Following review of the veteran's records, the physician confirmed the diagnosis of hypertension. As for the cause and relationship question, the physician offered that PTSD can definitely exacerbate the hypertension due to stress, but PTSD did not cause the hypertension. In a private medical statement, dated in January 1998, in response to the veteran's inquiry, a physician at Emory University, Department of Psychiatry and Behavioral Sciences, noted that because part of PTSD is depression, it is highly likely that PTSD also is a very serious risk factor for a number of medical disorders, including, but not limited to, cardiovascular disease, hypertension, gastrointestinal disorders, stroke and cancer. Therefore, it was the physician's opinion that the symptoms the veteran had described in his letter to the physician may well be a direct result of PTSD. In a medical statement from a VA physician's assistant, dated in January 2000, it is related that the veteran was being treated for hypertension, and that he has a diagnosis of PTSD. In the physician's assistant's opinion, it is more likely than not that the veteran's hypertension is, at times, exacerbated by his PTSD. In June 2001, the physician's assistant offered that the veteran's hypertension was possibly related to an injury, disease, or event concurring during the veteran's military service. No references were listed for the opinion; rather, the opinion was based on sixteen years of medical experience. During the veteran's video-teleconference, he testified he did not have hypertension during his many years active military service; rather, hypertension was first noted in either 1992 or 1993. The only treatment he has ever received for the disease was through the VA medical system, where he received his medication to control his elevated blood pressure. In a medical statement, dated in August 2001, the psychologist director of a VA PTSD clinical team related the veteran had approached him regarding his claim for service connected status for esophageal reflux, hypertension and impotence. The psychologist noted that those conditions were exacerbated by stress, and it was certainly possible that those conditions have been aggravated by the veteran's service-connected PTSD. Following VA examination in October 2001, the examining physician offered that in many cases of PTSD, after prolonged periods of hyper-alertness and fear, physical illnesses can supervene. The physician noted he had seen cases of hypertension, migraine headaches, gastrointestinal diseases, such as ulcer and GERD, follow the acute stress of PTSD. In the veteran's case, the physician offered that he believed PTSD has a causal relationship to the veteran's hypertension. The veteran submitted a letter, dated in July 2002, written to the Chief of Staff of a VA medical center noting his disabilities and treatment he received at various VA facilities. He requested the physician offer an opinion as to whether it was at least as likely as not that either his service-connected PTSD or steroids he received to treat his service-connected skin disease could either bring on or exacerbate his hypertension. In reply, the physician related "I concur with the 'as likely as not,' based on my medical knowledge." In a medical statement, also dated in July 2002, a private physician noted she was requested to offer a second opinion as to the causation of the veteran's hypertension. Following examination of the veteran, the physician's diagnoses included hypertension, currently controlled on two antihypertensive medications, with no evidence of renal dysfunction. The physician was requested to express opinions as to the question of the relationship between the veteran's hypertension and his PTSD, as well as the Prednisone he received as treatment for his service-connected eczema between 1982 and 1995. She noted that the veteran developed hypertension in 1992, and he was discontinued of his Prednisone in 1995. Prednisone could induce hypertension as a part of Cushing Syndrome and could exacerbate his diabetes; however, the fact that he has been off his Prednisone since 1995, with no resolution of his symptoms and no resolution of his diabetes, the Prednisone would have been an unlikely cause of his hypertension. As for the relationship between his hypertension and his PTSD, the physician noted she had explained to him that the anxiety portion of the PTSD would exacerbate his hypertension on occasion, but that PTSD would have been an unlikely cause of his hypertension. Following extensive review of the records , as well as examination of and discussion with the veteran, a VA physician, in November 2002, offered that, in response to whether it is at least as likely as not that either PTSD or diabetes mellitus caused the veteran's hypertension or aggravated the veteran's hypertension, he was not aware of any literature that documents the causative nature of hypertension as related to PTSD. Nevertheless, the physician further noted it would appear from the literature that stress does exacerbate hypertension and that recurring traumas will exacerbate hypertension; therefore, it seems extremely likely that it is possible that PTSD aggravates or can aggravate hypertension. In summation, he agreed with the earlier VA physician's medical opinion offered in September 1997. As for diabetes and hypertension, the physician noted that the fact they so frequently occur together makes it very difficult to ascertain as to whether diabetes can exacerbate hypertension or vice versa; certainly, when diabetes is present, then any end-organ complications of hypertension, or atherosclerotic development is exacerbated by the presence of the other condition. Analysis The Board reiterates that the service medical records, as well as the post-service records for many years subsequent to the veteran's discharge from active duty, are negative for any complaint, treatment, diagnosis or symptomatology associated with hypertension, and the veteran does not contend otherwise. Rather, the veteran maintains that service connection is warranted because he has this disability due to either his service-connected PTSD or, in the alternative, due to the use of VA prescribed steroids, namely Prednisone, for treatment of his service-connected skin disease. A review of the medical evidence makes clear that the veteran currently suffers from hypertension. As such, the issue is whether the hypertension was proximately due to or the result of a service-connected disability. As for steroids causing hypertension, the medical records show that he was treated with Prednisone from 1982 to 1995 for skin disease. When specifically requested to offer an opinion, following review of the record and examination of the veteran, a private physician, in July 2002, noted that the veteran developed hypertension in 1992, and he was discontinued of his Prednisone in 1995. Although Prednisone could induce hypertension as a part of Cushing Syndrome and could exacerbate diabetes, the fact that he has been off his Prednisone since 1995, with no resolution of his symptoms and no resolution of his diabetes, the Prednisone would have been an unlikely cause of his hypertension. As for PTSD causing hypertension, review of the medical evidence and numerous medical opinions offered, it appears that the medical opinions offered consistently indicate that PTSD does not directly cause hypertension; however, PTSD certainly aggravates hypertension and most certainly exacerbates hypertension due to stress. Further medical opinion offered notes that someone who has PTSD is at very serious risk for developing a number of medical disorders, including, but not limited to, cardiovascular disease, hypertension, gastrointestinal disorders, stroke, and cancer. As noted earlier, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a). Section 3.310(a) has been interpreted as authorizing a grant of service connection for disability caused by a service- connected disability, and for the degree of additional disability resulting from aggravation of a nonservice- connected disability by a service-connected disability. See Allen, 7 Vet. App. at 448. The positive and negative evidence with respect to whether the veteran's post-service hypertension was proximately caused by or due to service-connected PTSD is in relative equipoise in this case. Where the evidence on either side of a question is equally balanced, service connection must be granted. Hence, the benefit of the doubt rule applies. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Under the circumstances of this case, and with resolution of all reasonable doubt in the veteran's favor, the Board must conclude that the veteran's hypertension is proximately due to or the result of service-connected PTSD. B. Gastroesophageal Reflux Disease The veteran's service medical records do not reflect any complaints or symptomatology associated with gastroesophageal reflux disease (GERD). During his initial post-service VA examination, conducted in October 1979, there was no indication of any esophageal complaints. While hospitalized from July through September 1989, for treatment of PTSD, he complained of frequent abdominal distress and vomiting, although not actually noted during the VA hospital stay. His VA outpatient treatment records show that, in October 1995, he was diagnosed as having GERD. On VA examination in July 1996, he complained of vomiting, heartburn, and acid reflux. The examining physician noted that, without having reviewed the veteran's medical records, it would appear that the described symptoms were due to GERD. Subsequent medical records continue the diagnosis of GERD. The veteran underwent gastro-intestinal testing in September 1997. Barium swallow revealed a small sliding hiatal hernia and moderate gastroesophageal reflux. These findings were also noted following an upper gastrointestinal examination. A private physician's medical statement, dated in January 1998, offered that, because part of PTSD is depression, it is highly likely that PTSD also is a very serious risk factor for a number of medical disorders, including, but no limited to cardiovascular disease, hypertension, gastrointestinal disorders, stroke and cancer. It was the physician's opinion that the symptoms described by the veteran may well be a direct result of PTSD. A VA physician's assistant, in a June 2001 medical statement, offered that the veteran GERD is least as likely as not related to an injury, disease, or event occurring during the veteran's military service. No basis was given for the opinion, other than her sixteen years of medical experience. In response to the veteran's request for a nexus opinion, the psychologist director of a VA PTSD clinical team offered that the veteran's esophageal reflux, hypertension and impotence are exacerbated by stress, and it was certainly possible that those condition have been aggravated by the veteran's service connected PTSD. During the veteran's video-teleconference, he testified that he never was treated in service for GERD, but that his vomiting and intestinal distress became a concern in 1982. His condition was currently controlled with medication, and he was vomiting about twice a week. He also submitted a written statement from his wife, who essentially related that her husband's vomiting had become a daily occurrence shortly after his separation from active military service and has continued ever since. Analysis Essentially the veteran maintains that his service-connected PTSD has caused his GERD and admits that he did not experience the disability while he was on active duty service. The veteran's service medical records support the fact that he received no treatment for GERD, which was initially diagnosed in October 1995. The diagnosis was confirmed through gastro-intestinal testing in September 1997. Therefore, the issue is whether GERD was proximately due to or the result of a service-connected disability. In support of the veteran's contention, he has submitted a number of medical opinions essentially relating PTSD, particularly the stress factor involved with the disability, as a serious risk factor in developing GERD. At the very least, the veteran's PTSD exacerbates or aggravates a GERD condition. Competent medical evidence reflected in the records does show an etiological relationship between stress and depression, essential components of PTSD, and gastro- intestinal disorders. When, after considering all the evidence, a reasonable doubt arises regarding a determinative issue in a claim, the benefit of the doubt shall be given to the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Under the circumstances of this case, and with resolution of all reasonable doubt in the veteran's favor, the Board must conclude that the veteran's GERD is proximately due to or the result of a service-connected disability, in this case PTSD. See Allen, 7 Vet. App. at 448. C. Hiatal Hernia The veteran asserts, in correspondence and in testimony he presented during the video-teleconference, that his hiatal hernia was caused by his service-connected PTSD. The pertinent facts, as noted in the grant for GERD, are not in dispute and essentially also pertain to his claim for service connection, on a secondary basis, for hiatal hernia. Review of the records show that an hiatal hernia was first noted many years after the veteran's separation from active duty service. In September 1997, he underwent gastro- intestinal testing to determine the underlying pathology for his on-going, post-service complaints of frequent abdominal disturbance, vomiting, and heartburn. At that time, a small sliding hiatal hernia and moderate gastroesophageal reflux were revealed through barium swallow and upper gastrointestinal examination. Subsequent medical records continue the diagnosis. The VA's physician's assistant, in her June 2001 medical opinion, concluded that the veteran's hiatal hernia was possibly related to an injury, disease, or event occurring during the veteran's military service. No basis was given for the opinion, except sixteen years medical experience. Also, the private physician's January 1998 opinion noted that depression, a major component of PTSD, is a very serious risk factor for medical disorders including, but not limited to, gastrointestinal disorders. Under the circumstances, there is competent medical evidence reflected in the records that shows an etiological relationship between stress and depression, essential components of PTSD, and gastro-intestinal disorders, to include hiatal hernia. With resolution of all reasonable doubt in the veteran's favor, the Board must conclude that the veteran's hiatal hernia is proximately due to or the result of a service- connected disability, in this case PTSD. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Allen, 7 Vet. App. at 448. D. Teeth Enamel Erosion The veteran's contention, noted in correspondence and reiterated during his video-teleconference, is that acid reflux from his frequent vomiting due to GERD has seriously eroded the enamel on his teeth. The medical records do not show any such findings until many years after he was separated from active military service. In fact, it was not until July 1996, when he produced the medical findings from his private dentist, was the claimed enamel loss initially revealed. In that medical statement, the dentist noted that PTSD produces clinical symptoms of gastrointestinal distress, nausea, and regurgitation. Further, vomitus has an extremely acid Ph and continual vomiting bothers the teeth in an acidic medium, consequently eroding away the enamel. The dentist noted that the veteran's maxillary teeth have been eroded in just this manner and, in the dentist's opinion, secondary to the veteran's gastrointestinal problems. VA dental examination in August 1996 confirmed the veteran's loss of enamel tooth structure. In June 2001, a VA's physician's assistant offered her opinion that the veteran's teeth erosion was possibly related to an injury, disease, or event occurring during the veteran's military service. No basis for the opinion was given, other than her sixteen years of medical experience. Following VA dental examination in November 2002, the examining Chief, Dental Services, noted the veteran's loss of tooth structure. He concurred with the veteran's private dentist's statement concerning frequent gastric acid exposure having the potential to cause enamel erosion; however, the veteran has no symptomatology that requires any intervention. The examiner found no functional impairment and suggested that the veteran's dental records be explored to ascertain whether the enamel loss was present during military service. In December 2002, the veteran submitted a written statement from his wife, essentially relating that, post-service, the veteran complained of frequent abdominal distress and heartburn, to the point where everything he ate, he would vomit. This would occur as often as three-to-four times a day. Analysis The veteran is not contending that the teeth enamel erosion occurred during service; rather, he is asserting that the enamel loss is the result of his acid reflux and vomiting. As noted earlier in this decision, GERD was not diagnosed until many years after his separation from active military service. The medical consensus of record is that such reflux, with continual vomiting bothers the teeth in an acidic medium, consequently eroding away the enamel. Although the veteran's private dentist attributes the teeth enamel erosion to GERD, for which the Board has granted service connection in this decision, the VA Chief of Dental Services suggests that the condition may have been present during the veteran's military service. In any case, either the service-connected GERD, with frequent vomiting, has caused the teeth enamel erosion or has aggravated an on-going condition. As such, medical opinion has supported an etiological relationship between service-connected GERD and currently noted teeth enamel erosion. With resolution of all reasonable doubt in the veteran's favor, the Board must conclude that the veteran's teeth enamel erosion is proximately due to or the result of a service-connected disability. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. see also Allen, 7 Vet. App. at 448. ORDER Service connection for hypertension, secondary to service- connected disability is granted. Service connection for gastroesophageal reflux disease, secondary to service-connected disability is granted. Service connection for hiatal hernia, secondary to service- connected disability is granted. Service connection for teeth enamel erosion, secondary to service-connected disability is granted. ____________________________________________ N. R. ROBIN 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