judge_norm: THOMAS J DANNAHER

condition: knee

disposition: remanded

text:
Citation Nr: 0410000
Decision Date: 04/16/04    Archive Date: 04/21/04

DOCKET NO.  00-09 335A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little Rock,
Arkansas

THE ISSUES

1.  Entitlement to a compensable disability rating for residuals
of a fracture of the left lateral tibial plateau, with partial
ankylosis, effective from August 31, 1995 to May 17, 1998.

2.  Entitlement to an increased disability rating for residuals of
a fracture of the left lateral tibial plateau, with partial
ankylosis, evaluated as 10 percent disabling from May 18, 1998 to
February 26, 2003.

3.  Entitlement to an increased disability rating for residuals of
a left total knee arthroplasty, evaluated as 30 percent disabling
from May 1, 2004.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Theresa M. Catino, Counsel

INTRODUCTION

The veteran served on active military duty from July 1961 to July
1965 and from May 1967 to March 1968.

Previously, in August 1999, the Board of Veterans' Appeals (Board)
granted service connection for traumatic arthritis of the left
knee as secondary to the service-connected residuals of a right os
calcis fracture with degenerative arthritis on the basis of
aggravation.  By a September 1999 rating action, the Department of
Veterans Affairs Regional Office (RO) in No. Little Rock, Arkansas
effectuated the Board's decision and granted service connection,
on the basis of aggravation, of residuals of a fracture of the
left lateral tibial plateau with partial ankylosis due to the
service-connected residuals of a fracture of the right os calcis
with minimal degenerative arthritis of the right subtalor joint.
Also by this rating action, the RO assigned a noncompensable
evaluation, effective from August 31, 1995 and a 10 percent
disability evaluation, effective since May 18, 1998.

Following receipt of notification of the September 1999 rating
action, the veteran perfected a timely appeal with respect to the
initial ratings assigned to his service-connected left knee
disability.  In April 2001, the Board remanded the veteran's
rating claims to the RO for further evidentiary development.

After completing the development requested by the Board in its
April 2001 remand, the RO, by an April 2003 rating action,
redefined the veteran's service-connected left knee disability as
residuals of a left total knee arthroplasty.  Also, the RO
confirmed the noncompensable evaluation assigned to this
disability, effective from August 31, 1995 to May 17, 1998.
Further, the RO awarded a temporary total rating from February 27,
2003 to April 30, 2003 (pursuant to the provisions of 38 C.F.R. �
4.30) as well as a temporary total rating from May 1, 2003 to
April 30, 2004 (based on the provisions of 38 C.F.R. � 4.71a,
Diagnostic Code 5055).  In addition, the RO confirmed the 10
percent evaluation awarded to this disorder, effective from May
18, 1998 to February 26, 2003, and granted an increased rating of
30 percent for this disability, effective since May 1, 2004.

The noncompensable and subsequent 10 percent and 30 percent
evaluations assigned to the service-connected residuals of a left
total knee arthroplasty are based on an initial grant of service
connection for this disability.  As such, the entire period
associated with this service-connected disability will be
considered to ensure that consideration is given to the
possibility of staged ratings; that is, separate ratings for
separate periods of time based on the facts found.  See Fenderson
v. West, 12 Vet. App. 119 (1999).  Consequently, the rating issues
with regard to the service-connected residuals of a left total
knee arthroplasty are correctly characterized as listed on the
title page of this decision.

In statements dated in December 2003, January 2004, and March
2004, the veteran and his representative raised the issue of
entitlement to an effective date earlier than August 31, 1995 for
the grant of service connection for a left knee disability
(currently characterized as a left total knee arthroplasty).  This
matter is not developed for appellate review, and is referred to
the RO for appropriate action.

The issue of entitlement to an increased initial rating for the
service-connected residuals of a left total knee arthroplasty,
evaluated as 30 percent disabling since May 1, 2004, will be
addressed in the Remand portion of this decision.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the issues addressed in this decision has been obtained.

2.  Left knee dysfunction not attributable to service-connected
disability includes residuals of a fracture of the left lateral
tibial plateau, with favorable ankylosis between full extension
and 10 degrees flexion.

3.  During the period from August 31, 1995 to May 17, 1998, the
veteran's service-connected residuals of a fracture of the left
lateral tibial plateau, with partial ankylosis was manifested by
complaints of pain and with objective evaluation findings of some
uncomfortable crepitus with range of motion, and tenderness to
palpation along the medial joint line; but an asymptomatic scar,
no effusion, no erythema, no instability with stressing, a healed
fracture of the lateral tibial plateau, alignment of the joint,
and a neurovascularly intact system.

4.  During the period from May 18, 1998 to February 26, 2003, the
veteran's service-connected residuals of a fracture of the left
lateral tibial plateau, with partial ankylosis was manifested by
complaints of increasing discomfort and pain as well as objective
evaluation findings of flexion contracture to 15 degrees, and
significant degenerative joint disease; but also by an
asymptomatic scar, an old healed fracture of the proximal tibia, a
healed malunion of the proximal fibula, acceptable alignment in
the nonweight-bearing position, and no laxity to varus or valgus
stress or to AP translation.

CONCLUSIONS OF LAW

1.  The criteria for a compensable disability rating for the
service-connected residuals of a left total knee arthroplasty, for
the period from August 31, 1995 to May 17, 1998, have not been
met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. ��
3.321(b)(1), 4.71a, Plate II and Diagnostic Code 5256 (2003).

2.  The criteria for a disability rating greater than 10 percent
for the service-connected residuals of a left total knee
arthroplasty, for the period from May 18, 1998 to February 26,
2003, have not been met.  38 U.S.C.A. �� 1155, 5107 (West 2002);
38 C.F.R. �� 3.321(b)(1), 4.71a, Plate II and Diagnostic Code 5256
(2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

Initially, the Board notes that there was a substantial change in
the law during the pendency of this claim.  On November 9, 2000,
the President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA).  See, 38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West
2002).  In particular, this law redefines the obligations of VA
with respect to the duty to notify and to assist.  This change in
the law is applicable to all claims filed on or after the date of
enactment of the VCAA, or filed before the date of enactment but
not yet final as of that date.  VCAA, Pub. L. No. 106-475, � 7(a),
114 Stat. 2096, 2099-2100 (2001), 38 U.S.C.A. � 5107 note
(Effective and Applicability Provisions) (West 2002).  VA
regulations have also been revised as a result of these changes
and is effective from November 9, 2000, except that the amendment
to 38 C.F.R. � 3.156(a), the second sentence of 38 C.F.R. �
3.159(c), and 38 C.F.R. � 3.159(c)(4)(iii) apply to any claim to
reopen a finally decided claim received on or after August 29,
2001).  See 38 C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a)
(2003).

First, VA has a duty to notify the veteran of any information and
evidence needed to substantiate and to complete his claim.  38
U.S.C.A. �� 5102 and 5103 (West 2002); 38 C.F.R. � 3.159(b)
(2003).  See also, Quartuccio v. Principi, 16 Vet. App. 183 (2002)
and Charles v. Principi, 16 Vet. App. 370 (2002) (holding that
both the statute, 38 U.S.C.A. � 5103(a), and the regulation, 38
C.F.R. � 3.159, clearly require the Secretary to notify a claimant
which evidence, if any, will be obtained by the claimant and which
evidence, if any, will be retrieved by the Secretary).  In the
statement of the case issued in March 2000, a letter dated in
February 2002, and the supplemental statements of the case (SSOCs)
furnished in February 2003 and October 2003, the RO informed the
veteran of the specific provisions of the VCAA, the criteria used
to adjudicate his initial rating claims, the type of evidence
needed to substantiate these issues, as well as the specific
information necessary from him.

Furthermore, in Pelegrini v. Principi, No. 01-944 (U.S. Vet. App.
Jan. 13, 2004), the United States Court of Appeals for Veteran
Claims (Court) held, in part, that a VCAA notice, as required by
38 U.S.C.A.. � 5103(a), must be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ) decision
on a claim for VA benefits.  In the present case, the veteran
filed his claim for service connection for a left knee disability
in August 1995.  Furthermore, he did not file a notice of
disagreement with the initial ratings assigned to his subsequently
service-connected left knee disorder (following the Board's August
1999 and RO's September 1999 grants of the underlying service
connection issue) until March 2000 prior to the promulgation of
the VCAA.  Consequently, the Board finds that it was effectively
impossible for the RO to have provided him with the proper notice
prior to the initial denial of his initial rating claims.  In any
event, throughout the current appeal, the veteran has been
informed on multiple occasions of the type of evidence necessary
from him to support these initial rating issues.  Consequently,
the Board concludes that the veteran has not been prejudiced by
any notification errors.

Second, VA has a duty to assist the veteran in obtaining evidence
necessary to substantiate the claims.  38 U.S.C.A. � 5103A (West
2002); 38 C.F.R. � 3.159(c) (2003).  A review of the claims folder
indicates that the RO has obtained available and relevant post-
service treatment records adequately identified by the veteran.
Further, the veteran has been accorded a pertinent VA examination
during the current appeal.

Factual Background

Service medical records are negative for complaints of, treatment
for, or findings of a left knee disability.  A February 1968
Medical Board Report did not note a disability of the veteran's
left knee.  A June 1968 rating action granted service connection
for residuals of a fracture of the right os calcis, with
degenerative arthritis of the right subtalar joint, and assigned a
20 percent evaluation from May 1968.

A March 1973 VA examination of the veteran's right foot and ankle
demonstrated dorsiflexion to 10 degrees, plantar flexion to 20
degrees, practically no side-to-side motion, and a normal gait.
X-rays taken of the veteran's right foot and ankle showed a healed
fracture of the calcaneus and a rather notched appearance on the
posterior aspect.  The examiner diagnosed residuals of a fracture
of the right os calcis.

VA medical records dated from May 1985 to February 1989 reflect
periodic outpatient treatment for mild degenerative joint disease
of the left knee.  An October 1985 VA radiographic report includes
an impression of degenerative changes of the left knee "apparently
secondary to [an] old fracture and gunshot wound and possibly old
osteomyelitis."

At a VA examination conducted in May 1989, the veteran reported
having sustained an injury to his left knee in 1980 when he jumped
to avoid being hit by a car, hit his left knee against a curb, and
fractured his left tibia and knee.  A physical examination of the
veteran's left knee demonstrated no limp or gait abnormality, a
well-healed anterolateral parapatellar incisional scar, increased
crepitus (on the left side as compared to the right side), no
effusion, no ligamentous cruciate instability, active flexion of
135 degrees, and an absence of 5 degrees of extension.  X-rays
taken of the veteran's left knee at that time showed an old healed
fracture of the proximal left tibia.  The examiner diagnosed
residuals of a fracture of the left os calcis which was treated by
a closed reduction and pin fixation, residuals of a fracture of
the lateral tibial plateau of the left knee which was treated with
open reduction and internal fixation, and partial ankylosis of the
left knee which was secondary to the fracture of the lateral
tibial plateau of the left knee.  In addition, the examiner
expressed his opinion that the veteran's left knee injury "is in
no way connected to his right os calcis injury" and is "a
total[ly] separate entity which occurred outside the military
setting and strictly . . . on a civilian basis."

Between July 1993 and August 1995, the veteran underwent several
VA outpatient evaluations of the degenerative joint disease of his
left knee.  At a July 1993 treatment session, the examiner
provided impressions of right subtalar arthrosis and left knee
degenerative joint disease.  In addition, the examiner expressed
his opinion that these disabilities represented "debilitating
disease that probably exacerbated each other."  A physical
examination conducted on the veteran's left knee in August 1995
demonstrated extension to 15 degrees, flexion to 110 degrees, and
crepitance.  The examiner assessed moderate degenerative joint
disease of the left knee.

At a January 1996 VA examination, the veteran reported that, in
1980, he sustained an extensive injury to his left knee with
multiple fractures of the upper tibia and injury to the
surrounding soft tissues when he was struck by a car and that, in
1990, he underwent an arthroscopic evaluation of his left knee
which did not afford him significant relief.  A physical
examination of the veteran's left knee demonstrated limitation of
motion (including flexion to 95 degrees and extension to 10
degrees) as well as a 31 centimeter long scar (with varying width
and which is not raised, depressed, fixed, or tender) extending
from the knee joint down the anterior surface of the tibia.  In
pertinent part, the examiner provided impressions of repair of an
old left knee injury as well as ankylosis of the right ankle
secondary to an old fracture of the calcaneus and surgical repair.
Additionally, the examiner concluded that the veteran had had
increased discomfort particularly from his right ankle injury and
that the left knee injury "has had increasing discomfort and . . .
seemingly is aggravated with the presence of the injury of the
opposite extremity."

According to an April 1996 medical report, a private physician
explained that he had treated the veteran for post-traumatic
arthritis of his right ankle secondary to a previous fracture.
This doctor also noted that the veteran had had "exacerbations of
arthritis in his left knee causing difficulties with ambulation
with his chronic right heel pain due to changes in gait to favor
his previous foot and ankle fracture."  Although acknowledging the
veteran's remote history of trauma to his left knee, the physician
noted that the veteran had "developed difficulties recently with
his knee after his right foot pain developed interfering with his
gait."  In another medical report dated in the same month, this
doctor reiterated his opinion that the veteran's status post right
calcaneal fracture with secondary degenerative joint disease has
aggravated the degenerative joint disease of his left knee.

In subsequent medical record dated in November 1996, this
physician noted that a physical examination of the veteran's left
knee demonstrated obvious degenerative changes, no ellicitable
joint effusion, some uncomfortable crepitus with range of motion,
and no instability with stressing.  The doctor assessed
degenerative joint disease of the left knee which was aggravated
by the residuals of the right calcaneal fracture.  In a report
dated in December 1996, the physician noted that the veteran has
traumatic arthritis in his left knee and has difficulty ambulating
secondary to a previous calcaneal fracture in his right foot and
that this ambulation problem has caused "increased weight load on
his left knee with frequent exacerbations of arthritic
discomfort."

In March 1997, the veteran underwent another VA examination.  At
that time, he complained of left knee pain, particularly upon
walking or upon climbing up and down stairs.  A physical
examination of the left knee demonstrated a twelve inch sigmoid
incision starting laterally crossing the joint line and extending
to the anterior tibial crest, no joint effusion, alignment of the
joint, and an absence of extension of 8 degrees.  X-rays taken of
the veteran's left knee demonstrated a healed fracture of the
lateral tibial plateau, bicompartmental degenerative changes, and
the presence of a fabella.  In pertinent part, the examiner
provided an impression of left knee degenerative arthritis
secondary to the effects of fracture trauma.  In addition, the
examiner explained that the veteran's left knee function "is
impaired because of the fracture line across the joint surface and
[that] although the alignment was well restored, the cartilage was
irreversibly damaged resulting in an arthritic process with use."
The examiner concluded that the veteran's left knee fracture was
well-healed and was not impaired by a remote effect from the ankle
injury residuals.

An April 1998 VA outpatient treatment session noted the veteran's
complaints of left knee pain.  A physical examination of the
veteran's left knee demonstrated full range of motion, crepitus,
tenderness to palpation along the medial joint line, no erythema,
no effusion, and a neurovascularly intact system.  X-rays taken of
the veteran's left knee demonstrated post-traumatic degenerative
joint disease.  The examiner assessed post-traumatic degenerative
joint disease of the left knee as well as a painful right heel
which caused the veteran "to increase [his] weight bearing on
[his] left knee aggravating [his] degenerative joint disease."

On May 18, 1998, the veteran underwent another VA examination.  At
that time, he stated that he is able to walk with knee pain for a
distance of one block and that he has a harder time walking down
stairs than climbing stairs.  A physical examination of the left
knee demonstrated a 12-inch sigmoid incision extending laterally
to the anterior tibial crest, a well-healed donor site of the left
iliac crest, no joint effusion, acceptable alignment in the
nonweight-bearing position, stable cruciate systems, and a stable
collateral system.  X-rays taken of the left knee showed
bicompartmental degenerative changes as well as the presence of a
fabella.  In pertinent part, the examiner provided impressions of
degenerative arthritis of the left knee secondary to the effects
of a trauma fracture as well as a remote open reduction and
internal fixation of the left knee fracture.  Additionally, the
examiner expressed his opinion that the veteran's left knee
disorder "is related to attempted usage in a failing joint."  The
examiner acknowledged that the onset of the veteran's left knee
problems was the initial incident of trauma and also concluded
that, with regard to the veteran's left knee and right ankle
problems, "[e]ach one aggravates the other."

In an October 1998 record, the veteran's private physician stated
that he has continued to treat the veteran for his continued
difficulties with the post-traumatic arthritis of his right
calcaneus and the degenerative cartilage changes of his left knee.
Further, the doctor noted that the veteran "was felt to have
developed degenerative changes probably due to [a] change of gait
from his calcaneal fracture."

Thereafter, in August 1999, the Board considered this in-service
and post-service evidence.  Specifically, the Board concluded that
the veteran's service-connected right heel disability aggravates
the traumatic arthritis of his left knee.  As such, the Board
granted service connection for the aggravation of the post-service
left knee arthritis secondary to the veteran's service-connected
right heel disability.

By a rating action dated in the following month, the RO
effectuated the Board's decision.  In particular, the RO
determined that underlying left knee disability consisted of
residuals of a fracture of the left lateral tibial plateau, with
favorable ankylosis between full extension and 10 degrees flexion.
This was based upon findings from a 1989 VA examination report
that noted the extent of left knee disability following a post
service injury and which represented a "total[ly] separate entity
which occurred outside the military setting".  The RO assigned a
noncompensable evaluation to the service-connected left knee
disability, effective from August 31, 1995, and a 10 percent
rating for this disorder, effective from May 18, 1998.  It was
determined that the May 1998 examination which showed a flexion
contracture of 15 degrees represented a measurable increase in the
underlying disability (warranting a 40 percent rating under
Diagnostic Code 5256 minus the 30 percent rating for the pre-
existing disability).  Following receipt of notification of the
September 1999 rating action, the veteran perfected a timely
appeal with respect to the initial ratings assigned to his
service-connected left knee disability.

According to the relevant evidence received during the current
appeal, an April 1990 VA outpatient treatment record reflects a
diagnosis of degenerative joint disease of the left knee.  In July
1990, the veteran was hospitalized at a VA facility for several
days during which time he underwent a diagnostic arthroscopy of
his left knee.  His primary diagnosis was characterized as
degenerative joint disease of the left knee.  Additional medical
records indicate VA outpatient left knee treatment on several
occasions between April and July 1991 as well as both private and
VA outpatient treatment for this joint between July and October
1992.

Thereafter, in January 2003, the veteran underwent a VA joints
examination.  According to the report of this evaluation, a
physical examination of the veteran's left knee demonstrated 10
degrees of extension, 85 to 90 degrees of flexion, significant
pain with range of motion, patellar crepitus throughout the range
of motion, no laxity to varus or valgus stress, no laxity to AP
translation, some increased hyperesthesia to palpation over the
lateral aspect of the proximal tibia, a positive Tinels test
through the peroneal nerve distribution on the left tibia, and
small joint effusion.  X-rays taken of the veteran's left knee in
December 2002 demonstrated significant degenerative joint disease,
an old healed fracture of the proximal tibia, depression of the
lateral tibial plateau, a healed malunion of the proximal fibula,
some intramedullary calcification (which the examiner felt was a
remnant of the bone grafting in the tibia and also the
patellofemoral arthritis of the knee), osteophytes medially and
laterally at the patella, and significant joint space narrowing in
all three compartments and medial sublux of the tibia onto the
femur.

The examiner explained that, as a result of the veteran's right
foot and ankle disability, his gait cycle does require him to
place more stress on his left knee than someone who did not have
the right-sided pathology.  Consequently, the examiner concluded
that "it could be conceivable that . . . [the veteran] did
accelerate and aggravate the evolution of his degenerative joint
disease on the left simply secondary to his right ankle
disability."

Subsequently, on February 27, 2003, the veteran was hospitalized
at a VA medical facility for approximately one week.  During that
time, he underwent a left total knee arthroplasty.  He was
discharged on March 5, 2003.

At a follow-up VA outpatient treatment session conducted
approximately one week later in March 2003, the examiner noted
that the veteran's incisions were benign, that his staples were
removed, that his post-operative radiographic films looked
"excellent."  Further examination of the veteran's left knee
demonstrated an initial inability to do straight leg raising but
an ability to complete some straight leg raises with assistance.
The examiner recommended that the veteran's physical therapy be
extended for "probably another three to six weeks" but stated that
the veteran's need for further physical therapy would be re-
evaluated in approximately one month.

By an April 2003 rating action, the RO recharacterized the
veteran's service-connected left knee disability as a left total
knee arthroplasty.  Additionally, the RO denied the issue of
entitlement to a compensable disability evaluation for this
disorder, effective from August 31, 1995 to May 17, 1998.  The RO
also denied the issue of entitlement to a disability rating
greater than 10 percent for the service-connected left knee
disability, effective from May 18, 1998 to February 26, 2003.
Further, the RO awarded, for this disorder, a temporary total
rating from February 27, 2003 to April 30, 2003 pursuant to the
provisions of 38 C.F.R. � 4.30 as well as a temporary total rating
from May 1, 2003 to April 30, 2004.  In addition, the RO granted a
30 percent disability evaluation for the service-connected left
knee disability, effective from May 1, 2004.

Analysis

In evaluating the severity of a particular disability, it is
essential to consider its history.  38 C.F.R. �� 4.1 and 4.2
(2003).  However, where entitlement to compensation has already
been established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Since the present appeal arises from an initial rating decision
which established service connection and assigned an initial
disability rating, it is not the present level of disability which
is of primary importance, but rather the entire period is to be
considered to ensure that consideration is given to the
possibility of staged ratings; that is, separate ratings for
separate periods of time based on the facts found.  See Fenderson
v. West, 12 Vet. App. 119 (1999).

Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practicably be
determined, on the average impairment of earning capacity.  38
U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.1 (2003).  Each
service-connected disability is rated on the basis of specific
criteria identified by diagnostic codes.  38 C.F.R. � 4.27 (2003).

Review of the claims folder in the present case indicates that,
prior to the recharacterization of the veteran's service-connected
left knee disability as a left total knee arthroplasty, the RO had
defined this disorder as residuals of a fracture of the left
lateral tibial plateau with partial ankylosis.  Originally, the RO
evaluated this disability under the diagnostic codes which
evaluate impairment resulting from recurrent subluxation or
lateral instability of the knee joint and from ankylosis of the
knee joint.

The pertinent diagnostic code which evaluates impairment resulting
from recurrent subluxation or lateral instability of the knee
stipulates that evidence of slight symptomatology will result in
the assignment of a 10 percent disability evaluation.  38 C.F.R. �
4.71a, Diagnostic Code 5257 (2003).  The next higher rating of 20
percent necessitates evidence of moderate recurrent subluxation or
lateral instability.  Id.  The highest rating allowable under this
Diagnostic Code, 30 percent, requires evidence of severe recurrent
subluxation or lateral instability.  Id.

Ankylosis of the left knee, when extremely unfavorable, in flexion
at an angle of 45 degrees or more, will be assigned a 60 percent
rating.  When ankylosis is in flexion between 20 degrees and 45
degrees, a 50 percent rating is assigned.  When there is ankylosis
in flexion between 10 degrees and 20 degrees a 40 percent rating
is assigned; and when there is a favorable angle in full
extension, or in slight flexion, between 0 and 10 degrees, a 30
percent rating is assigned.  38 C.F.R. � 4.71a, Diagnostic Code
5256 (2003).

According to the relevant diagnostic code which rate impairment
resulting from limitation of flexion of the leg, evidence that
flexion of the leg is limited to 60 degrees warrants the
assignment of a noncompensable disability evaluation.  38 C.F.R. �
4.71a, Diagnostic Code 5260 (2003).  A 10 percent disability
rating requires evidence of limitation of flexion to 45 degrees.
Id.  Evidence of limitation of flexion of the leg to 30 degrees is
necessary for the grant of a 20 percent disability evaluation.
Id.  Evidence that flexion of the leg is limited to 15 degrees
will result in the assignment of a 30 percent disability rating.
Id.

According to the Diagnostic Code which evaluates impairment
resulting from limitation of extension of the leg, evidence that
extension of the leg is limited to 5 degrees warrants the
assignment of a noncompensable disability rating.  38 C.F.R. �
4.71a, Diagnostic Code 5261 (2003).  A compensable disability
evaluation of 10 percent requires evidence of limitation of
extension of the leg to 10 degrees.  Id.  Evidence of limitation
of extension of the leg to 15 degrees warrants the grant of a 20
percent disability rating.  Id.  Evidence of limitation of
extension of the leg to 20 degrees warrants the grant of a 30
percent disability rating.  Id.  Evidence of limitation of
extension of the leg to 30 degrees will result in the assignment
of a 40 percent disability rating.  Id.  Evidence of limitation of
extension of the leg to 45 degrees warrants the grant of a 50
percent disability evaluation.  Id.

Further, the Board notes that, although regulations recognize that
a part which becomes painful on use must be regarded as seriously
disabled, see 38 C.F.R. �� 4.40 and 4.45, these provisions are
qualified by specific rating criteria applicable to the case at
hand.  As the Board has discussed, evaluation of the veteran's
service-connected left knee disorder requires consideration of any
limitation of motion of this joint.  See, 38 C.F.R. � 4.71a, Plate
II and Diagnostic Codes 5260 and 5261 (2003).  Application of the
precepts enunciated in DeLuca v. Brown, 8 Vet. App. 202 (1995)
requires that problems such as pain on use be specifically
considered when evaluating the veteran's disability.
Specifically, when a Diagnostic Code provides for compensation
based on limitation of motion, the provisions of 38 C.F.R. �� 4.40
and 4.45 must also be considered, and the examinations upon which
rating decisions are based must adequately portray the extent of
the functional loss due to pain "on use or due to flare-ups."
DeLuca v. Brown, 8 Vet. App. 202 (1995).  Id.  See also, 38 C.F.R.
� 4.59 (2003).

Throughout the current appeal, the veteran has asserted that his
service-connected left knee disability is more severe than the
initial evaluations indicate.  The Board acknowledges that the
veteran's descriptions of this service-connected pathology are
deemed to be competent evidence.  Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).  Importantly, however, the veteran's descriptions
of his service-connected left knee disability must be considered
in conjunction with the clinical evidence of record as well as the
pertinent rating criteria.

In the April 2001 remand, the Board asked the RO to have the
veteran scheduled for a VA orthopedic examination to determine the
degree of left knee disability attributable to aggravation by the
service-connected right ankle disability.  Specifically, the Board
asked that the examiner who conducted the evaluation offer an
opinion regarding the degree of disability over and above the
degree of left knee disability existing prior to such aggravation
by the right ankle disorder.

In this regard, the Board notes that, pursuant to the April 2001
remand, the veteran was accorded a VA joints examination in
January 2003.  According to the report of this evaluation, the
examiner expressed his opinion that, as a result of the veteran's
right foot and ankle disability, his gait cycle requires him to
place more stress on his left knee than someone who did not have
the right-sided pathology.  Consequently, the examiner concluded
that "it could be conceivable that . . . [the veteran] did
accelerate and aggravate the evolution of his degenerative joint
disease on the left simply secondary to his right ankle
disability."  This statement from the physician appears to
associate the veteran's left knee disability "simply secondary" to
his service-connected right ankle disorder.  There is no basis for
determining additional disability manifested over and above that
which existed at the time of the 1989 VA examination is not due to
service-connected disability.  (Moreover, in the prior VA
examination conducted on May 18, 1998, the examiner expressed his
opinion that, with regard to the veteran's right ankle and left
knee disabilities, "[e]ach one aggravates the other."  In
addition, the examiner explained that "[i]t would be conjecture to
establish a degree of aggravation or disability for that matter.)
As such, in adjudicating the veteran's initial rating claims for
his service-connected left knee disability, the Board will grant
the benefit of the doubt to the veteran and will simply consider
the pathology associated with this disorder over and above that
demonstrated at the time of the 1989 VA examination.

A.  Entitlement To A Compensable Disability Rating For The
Service-Connected Left Knee Disability Between August 31, 1995 and
May 17, 1998

The Board has considered the veteran's complaints of increasing
discomfort and pain in his left knee, particularly upon walking or
upon climbing up and down stairs between August 31, 1995 and May
17, 1998.  In this regard, the Board also acknowledges the recent
objective evaluation findings, during this time period, of some
uncomfortable crepitus with range of motion, tenderness to
palpation along the medial joint line, and bicompartmental
degenerative changes.

Significantly, however, recent objective evaluation findings
between August 31, 1995 and May 17, 1998 have also shown, with
regard to the veteran's left knee, an asymptomatic scar extending
from the joint down the anterior surface of the tibia, full range
of motion, no effusion, no erythema, no instability with
stressing, a healed fracture of the lateral tibial plateau,
alignment of the joint, and a neurovascularly intact system.

This recent medical evidence reflects no instability of the
veteran's left knee.  With no evidence of even slight recurrent
subluxation or lateral instability of the veteran's left knee, a
compensable rating of 10 percent for such symptomatology is not
warranted.  See, 38 C.F.R. � 4.71a, Diagnostic Code 5257.

Moreover, the veteran's left knee did not exhibit more than 10
degrees of ankylosis during this period.  There was no basis for
assigning a higher evaluation pursuant to 38 C.F.R. � 4.71a,
Diagnostic Codes 5256.

Additionally, the Board acknowledges the veteran's complaints of
increasing discomfort and pain in his left knee, particularly upon
walking or upon climbing up and down stairs.  Also, evaluation of
the veteran's left knee has shown some uncomfortable crepitus with
range of motion as well as tenderness to palpation along the
medial joint line.  Significantly, however, objective examination
of the veteran's left knee has also shown an asymptomatic scar
extending from the joint down the anterior surface of the tibia,
full range of motion, no effusion, no erythema, no instability
with stressing, a healed fracture of the lateral tibial plateau,
alignment of the joint, and a neurovascularly intact system.

Thus, the Board concludes that these findings do not support the
grant of a compensable rating for the veteran's service-connected
left knee disability based upon objective evidence of increased
functional impairment.  See DeLuca, 8 Vet. App. at 204-207; see
also 38 C.F.R. �� 4.40, 4.45, 4.59.  Consequently, a compensable
rating for the service-connected left knee disability between
August 31, 1995 and May 17, 1998 is not warranted.  See, 38 C.F.R.
� 4.71a, Diagnostic Codes 5257, 5260, & 5261.

In exceptional cases where schedular evaluations are found to be
inadequate, the RO may refer a claim to the Under Secretary for
Benefits or the Director, Compensation and Pension Service, for
consideration of an extraschedular evaluation commensurate with
the average earning capacity impairment due exclusively to the
service-connected disability or disabilities.  38 C.F.R. �
3.321(b)(1).  The governing norm in these exceptional cases 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.  38 C.F.R. � 3.321(b)(1).

Although the Board has no authority to grant an extraschedular
rating in the first instance, it may consider whether the RO's
determination with respect to that issue was proper.  See
VAOPGCPREC 6-96; Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (the
Board may consider whether referral to "appropriate first-line
officials" for extra-schedular rating is required); see also
Bagwell v. Brown, 9 Vet. App. 337, 339 (1996) (the Board may
affirm an RO conclusion that a claim does not meet the criteria
for submission pursuant to 38 C.F.R. � 3.321(b)(1)).

A review of the claims folder in the present case indicates that
the RO has made a determination that the veteran's initial
compensable rating claim (for the period from August 31, 1995 to
May 17, 1998) does not meet the criteria for submission to the
Under Secretary for Benefits or the Director, Compensation and
Pension Service.  In this regard, the Board finds no evidence of
an exceptional disability as manifested by related factors such as
marked interference with employment or frequent hospitalizations
associated with the service-connected left knee disability.
Specifically, it is not shown by the evidence of record that the
veteran required any recent hospitalization for this disorder.
Also, the overall picture presented by the evidence in the claims
folder did not actually reflect "marked interference" in
employment due specifically to this service-connected disability.

In the absence of evidence presenting such exceptional
circumstances, the Board finds that the RO did not err in failing
to refer the veteran's initial compensable rating claim for his
service-connected left knee disability (for the period from August
31, 1995 to May 17, 1998) to the Under Secretary for Benefits or
the Director, Compensation and Pension Service for consideration
of the extraschedular provisions of 38 C.F.R. � 3.321(b)(1).  This
disability is appropriately rated under the schedular criteria.

B.  Entitlement To A Disability Rating Greater Than 10 Percent For
The Service-Connected Left Knee Disability Between May 18, 1998
And February 26, 2003

The Board has considered the veteran's continued complaints of
discomfort and pain in his left knee, particularly upon walking or
upon climbing up and down stairs between May 18, 1998 and February
26, 2003.  In this regard, the Board also acknowledges the
objective evaluation findings, during this time period, most
notably the 15 degrees flexion contracture reflected on the May
1998 VA examination report.  It was also noted that he had pain on
extremes of motion from 15 to 95 degrees of flexion, patellar
crepitus throughout the range of motion, some increased
hyperesthesia to palpation over the lateral aspect of the proximal
tibia, a positive Tinels test through the peroneal nerve
distribution on the left tibia, small joint effusion, significant
degenerative joint disease, depression of the lateral tibial
plateau, some intramedullary calcification, osteophytes medially
and laterally at the patella, significant joint space narrowing in
all three compartments, and medial sublux of the tibia onto the
femur.

However, recent objective evaluation findings between May 18, 1998
and February 26, 2003 have also shown, with regard to the
veteran's left knee, an asymptomatic scar extending laterally to
the anterior tibial crest, a well-healed donor site of the left
iliac crest, an old healed fracture of the proximal tibia, a
healed malunion of the proximal fibula, acceptable alignment in
the nonweight-bearing position, and no laxity to varus or valgus
stress.

With no evidence of even slight recurrent subluxation or lateral
instability of the veteran's left knee, a compensable rating of 10
percent for such symptomatology is not warranted.  See, 38 C.F.R.
� 4.71a, Diagnostic Code 5257.

The left knee had a flexion contracture of 15 degrees, but
ankylosis to 20 degrees was not exhibited or approximated.  See 38
C.F.R. � 4.71a, Diagnostic Code 5256.  Moreover, the veteran's
left knee has been found to have 15 degrees of extension and 85 to
95 degrees of flexion.  Evidence of limitation of extension to 15
degrees supports an award of 20 percent, but no more.  38 C.F.R. �
4.71a, Diagnostic Code 5261.  However, without evidence of
limitation of extension to 45 degrees, an increased disability
rating is not warranted.  38 C.F.R. � 4.71a, Diagnostic Codes 5260
and 5261.

Additionally, the Board acknowledges the veteran's continued
complaints of increasing discomfort and pain in his left knee,
particularly upon walking or upon climbing up and down stairs.
Also, recent evaluation of the veteran's left knee has shown some
limitation of motion, significant pain with range of motion,
patellar crepitus throughout the range of motion, some increased
hyperesthesia to palpation over the lateral aspect of the proximal
tibia, small joint effusion, and a positive Tinels test through
the peroneal nerve distribution on the left tibia.  Significantly,
however, objective examination of the veteran's left knee has also
shown acceptable alignment in the nonweight-bearing position as
well as no laxity to varus or valgus stress or to AP translation.

Thus, the Board concludes that the currently assigned disability
rating of 10 percent for the veteran's service-connected left knee
disability (for the period from May 18, 1998 to February 26, 2003)
contemplates any functional impairment, pain, and weakness that
the veteran experiences as a result of this disorder.  In other
words, this 10 percent evaluation reflects the extent of pain and
the related functional impairment that the veteran experiences as
a consequence of use of his left knee.  See DeLuca, 8 Vet. App. at
204-207; see also 38 C.F.R. �� 4.40, 4.45, 4.59.  Consequently, a
rating greater than 10 percent for the service-connected left knee
disability between May 18, 1998 and February 26, 2003 is not
warranted.  See, 38 C.F.R. � 4.71a, Diagnostic Codes 5257, 5260, &
5261.

In exceptional cases where schedular evaluations are found to be
inadequate, the RO may refer a claim to the Under Secretary for
Benefits or the Director, Compensation and Pension Service, for
consideration of an extraschedular evaluation commensurate with
the average earning capacity impairment due exclusively to the
service-connected disability or disabilities.  38 C.F.R. �
3.321(b)(1).  The governing norm in these exceptional cases 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.  38 C.F.R. � 3.321(b)(1).

Although the Board has no authority to grant an extraschedular
rating in the first instance, it may consider whether the RO's
determination with respect to that issue was proper.  See
VAOPGCPREC 6-96; Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (the
Board may consider whether referral to "appropriate first-line
officials" for extra-schedular rating is required); see also
Bagwell v. Brown, 9 Vet. App. 337, 339 (1996) (the Board may
affirm an RO conclusion that a claim does not meet the criteria
for submission pursuant to 38 C.F.R. � 3.321(b)(1)).

A complete and thorough review of the claims folder in the present
case indicates that the RO has made a determination that the
veteran's initial rating claim a evaluation greater than 10
percent for his service-connected left knee disability for the
period from May 18, 1998 to February 26, 2003 does not meet the
criteria for submission to the Under Secretary for Benefits or the
Director, Compensation and Pension Service.  In this regard, the
Board finds no evidence of an exceptional disability as manifested
by related factors such as marked interference with employment or
frequent hospitalizations associated with the service-connected
left knee disability.  Specifically, it is not shown by the
evidence of record that the veteran required any recent
hospitalization for this disorder.  Also, the overall picture
presented by the evidence in the claims folder did not actually
reflect "marked interference" in employment due specifically to
this service-connected disability.

In the absence of evidence presenting such exceptional
circumstances, the Board finds that the RO did not err in failing
to refer the veteran's initial compensable rating claim for his
service-connected left knee disability (for the period from May
18, 1998 to February 26, 2003) to the Under Secretary for Benefits
or the Director, Compensation and Pension Service for
consideration of the extraschedular provisions of 38 C.F.R. �
3.321(b)(1).  This disability is appropriately rated under the
schedular criteria.

ORDER

A compensable disability rating for residuals of a left total knee
arthroplasty, effective from August 31, 1995 to May 17, 1998 is
denied.

A disability rating greater than 10 percent, from May 18, 1998 to
February 26, 2003, for residuals of a left total knee arthroplasty
is denied.

REMAND

As the Board has previously noted in this decision, the RO, by the
April 2003 rating action, recharacterized the veteran's service-
connected left knee disability as a left total knee arthroplasty.
Additionally, the RO awarded for this disorder a temporary total
rating from February 27, 2003 to April 30, 2003 pursuant to the
provisions of 38 C.F.R. � 4.30 as well as a temporary total rating
from May 1, 2003 to April 30, 2004.  Further, the RO granted a 30
percent disability evaluation for the service-connected left knee
disability, effective from May 1, 2004.

The most recent records of left knee treatment that have been
obtained and associated with the claims folder are VA medical
reports dated in March 2003.  No more recent pertinent treatment
records have been procured.  Furthermore, according to the April
2003 rating action, a future examination would be scheduled in
April 2004.

In view of the lack of pertinent evidence in the claims folder to
evaluate the veteran's claim for a rating greater than 30 percent,
effective from May 1, 2004, for his service-connected left knee
disability, the Board concludes that a remand is necessary to
procure any such available evidence.  In particular, on remand,
the RO should attempt to obtain and to associate with the claims
folder copies of any pertinent inpatient and outpatient treatment
records and should have the veteran scheduled for a relevant VA
examination to determine the current nature and extent of his left
knee disability.

Accordingly, further appellate consideration will be deferred and
this case is REMANDED to the RO for the following actions:

1.  The RO should obtain copies of records of left knee treatment
that the veteran has received at the Little Rock VA Medical Center
since March 2003.  All such available documents should be
associated with the claims folder.

2.  Thereafter, the RO should make arrangements with the
appropriate VA medical facility for the veteran to be afforded a
VA orthopedic examination to determine the nature and extent of
his service-connected left total knee arthroplasty.  The claims
folder must be made available to the examiner in conjunction with
the examination.  Any testing deemed necessary, including X-rays,
should be performed.

The examiner should obtain from the veteran his detailed clinical
history.  All pertinent left knee pathology found on examination
should be noted in the report of the evaluation.  In particular,
the examiner should provide the ranges of motion of the veteran's
left knee and specifically state whether there is nonunion of his
left tibia and left fibula, loose motion, and/or the need to wear
a brace.  If the examiner finds any left knee ankylosis present,
he should provide the degree of such ankylosis.

3.  The RO should then adjudicate the claim of entitlement to an
increased disability rating, evaluated as 30 percent disabling
from May 1, 2004, for a left total knee arthroplasty.  If the
decision remains in any way adverse to the veteran, he and his
representative should be provided with a supplemental statement of
the case (SSOC).  The SSOC must contain notice of all relevant
actions taken on the claim for benefits, to include the applicable
law and regulations considered pertinent to the issue currently on
appeal as well as a summary of the evidence received since the
issuance of the statement of the case in October 2003.  An
appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board, if in order.
No action is required of the veteran until he is notified by the
RO; however, the veteran is advised that failure to report for the
scheduled examination may result in the denial of his claims.  38
C.F.R. � 3.655 (2003).  The veteran has the right to submit
additional evidence and argument on the matter that the Board has
remanded to the RO.  Kutscherousky v. West, 12 Vet. App. 369
(1999).

This claim must be afforded expeditious treatment by the RO.  The
law requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate action
must be handled in an expeditious manner.  See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, � 707(a), (b), 117
Stat. 2651 (2003) (to be codified at 38 U.S.C. �� 5109B, 7112).

____________________________________________
	THOMAS J. DANNAHER
	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)
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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)
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Page 2


series: legacy

judge_norm: MARK D HINDIN

text:
Citation Nr: 0411000
Decision Date: 04/27/04    Archive Date: 05/06/04

DOCKET NO.  02-11 584	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia

THE ISSUE

Entitlement to a higher (compensable) rating from December 6,
2001, for a low back disability, on appeal from the original grant
of service connection.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel

INTRODUCTION

The veteran served on active duty from May 1980 to December 2000.

This appeal comes before the Board of Veterans' Appeals (Board)
from a May 2000 rating decision of the Roanoke, Virginia, Regional
Office (RO) of the United States Department of Veterans' Affairs
(VA).  In that decision, the RO established service connection for
a low back disability and assigned staged ratings: 20 percent from
January 1, 2001, and 0 percent from December 6, 2001.  The veteran
has appealed the 0 percent rating, and is seeking a higher rating
for the period beginning December 6, 2001.

Statements from the veteran appear to raise a claim for service
connection for disability of the cervical spine.  This claim is
referred to the RO for appropriate action.

This claim is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.  VA will notify you if further action is
required on your part.

REMAND

Additional information regarding the veteran's low back disability
should be obtained.  His claims file contains the report of a
March 2001 VA medical examination, which revealed low back
tenderness, pain on motion, and x-ray findings of some changes.

The file also contains a December 2001 report from a private
chiropractor, who reported that he treated the veteran for severe
low back symptoms beginning in July 2001.  VA is required to seek
records of treatment reported by private medical professionals.
Massey v. Brown, 7 Vet. App. 204 (1994).

The chiropractor reported that the veteran's low back was
asymptomatic at the end of treatment in October 2001.  In
statements made subsequent to December 2001, the veteran reported
that his low back symptoms varied in intensity, but that some
level of symptoms was ongoing, and his low back problem had not
resolved.
The veteran is entitled to a new VA examination where there is
evidence that the condition has worsened since the last
examination.  Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey
v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

The rating schedule regarding back disabilities changed, in 2002,
and again in 2003.  See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002)
(codified at 38 C.F.R. � 4.71a, Diagnostic Code 5293); 68 Fed.
Reg. 51,454-51,458 (August 27, 2003) (to be codified at 38 C.F.R.
� 4.71a, Diagnostic Codes 5235 to 5243).  The examination of the
back should provide findings applicable to all of the rating
criteria that have been in effect since the veteran filed his
claim, so that the RO can evaluate the disability under the
criteria most favorable to the veteran.

Accordingly, this case is REMANDED for the following:

1.  The RO should take the necessary steps to obtain all records
of the veteran's treatment by Ken DeGiorgio, D.C., since July 24,
2001.

2.  The RO should schedule the veteran for an examination to
determine the current manifestation of his low back disability.

The examiner should include the ranges of forward flexion,
extension, left and right lateral flexion, and left and right
rotation, of the lumbar spine.  In recording the ranges of motion,
the examiner should indicate whether motion is further limited by
pain on motion.  The examiner should characterize the limitation
of motion of the lumbar spine as slight, moderate, or severe.  The
examiner should indicate whether the veteran has intervertebral
disc syndrome.

The examiner should note the number and duration of any episodes
of doctor prescribed bed rest during the twelve months preceding
the examination.  The examiner should indicate whether examination
reveals muscle spasm, sciatic neuropathy, or other neurological
findings appropriate to the site of any diseased disc.

2.  The RO should then readjudicate the claim considering the new
and old version of the rating schedule.  If the benefit sought
remains denied, the RO should issue a supplemental statement of
the case that informs the veteran of the rating criteria adopted
in August 2002, and 2003.

Thereafter, the case should be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of this
case.  The veteran has the right to submit additional evidence and
argument on the matter that the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment by the RO.  The
law requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner.  See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, � 707(a), (b), 117
Stat. 2651 (2003) (to be codified at 38 U.S.C. �� 5109B, 7112).

_________________________________________________
	Mark D. Hindin
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board
of Veterans' Appeals is appealable to the United States Court of
Appeals for Veterans Claims.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2003).


judge_norm: H N SCHWARTZ

text: This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).

text:
Citation Nr: 0412000
Decision Date: 05/07/04    Archive Date: 05/14/04

DOCKET NO.  03-19 014	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen a claim for service connection for bilateral hearing
loss.

2.  Entitlement to service connection for diabetes mellitus.

3.  Entitlement to service connection for declining eyesight
as secondary to diabetes mellitus.

4.  Entitlement to nonservice-connected pension.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

L. M. Davis, Associate Counsel

INTRODUCTION

The veteran served on active duty from February 1972 to
February 1975.  The veteran also served in the National
Guard.

This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a November 2002 rating decision of the
Columbia, South Carolina, Department of Veterans Affairs (VA)
Regional Office (RO).  The RO denied service connection for
diabetes mellitus and declining eyesight, denied entitlement
to nonservice-connected pension, and denied the claim to
reopen for service connection for bilateral hearing loss.

REMAND

Records in the claims file indicated that the veteran served
in the National Guard.  However, the records do not indicate
the dates of active duty for training (ACDUTRA).  These dates
are necessary in order to decide the veteran's claim.
Accordingly, this case is hereby REMANDED for the following
actions:

1.  Request the veteran's service records
from the South Carolina National Guard,
including records noting specific dates
of ACDUTRA.

2.  The veteran is informed that he must
submit the following evidence:
	Evidence showing a relationship
between hearing loss, diabetes mellitus
and eye disability and service; evidence
of permanent and total disability;
evidence of when hearing loss and
diabetes mellitus were first identified;
and a statement from his last employer as
to the date the veteran last worked, the
reason for leaving, and wages.

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).

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, � 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. �� 5109B, 7112).

_________________________________________________
	H. N. SCHWARTZ
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2003).


judge_norm: RONALD R BOSCH

disposition: denied

condition: tinnitus

text:
Citation Nr: 0413000
Decision Date: 05/19/04    Archive Date: 05/25/04

DOCKET NO.  04-07 552	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota

THE ISSUE

Entitlement to a separate disability evaluation of 10 percent
for tinnitus of each ear.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of
the United States

ATTORNEY FOR THE BOARD

Mark J. Swiatek, Counsel

INTRODUCTION

The veteran had active military service from July 1942 to
January 1946.

The claims file contains a report of a rating decision dated
in November 2002 wherein entitlement to service connection
for tinnitus with the assignment of a 10 percent evaluation
effective August 13, 2002 was granted.

The current appeal to the Board of Veterans' Appeals (Board)
arose from a January 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St. Paul,
Minnesota.  The RO denied entitlement to a separate 10
percent evaluation for each ear for tinnitus.

The RO construed the representative's January 2003
correspondence as a claim for increase, wherein the claim was
made that the veteran should receive a separate evaluation of
10 percent for tinnitus of each ear.

In May 2004 the Board granted the veteran's motion to advance
his appeal on the Board's docket.

FINDING OF FACT

The 10 percent schedular evaluation for tinnitus is the
maximum evaluation provided in the rating schedule for
unilateral or bilateral tinnitus.

CONCLUSION OF LAW

A schedular evaluation in excess of 10 percent for bilateral
tinnitus is not warranted as a matter of law.  38 U.S.C.A.
�� 1155, 5107, 5103, 5103A, 5107A, 7104(c) (West 2002);
38 C.F.R. �� 3.159, 4.1, 4.87, Diagnostic Code 6260 (2002)
and as amended at 68 Fed. Reg. 25823, May 14, 2003; Sabonis
v. Brown, 6 Vet. App. 426 (1994).

REASONS AND BASES FOR FINDING AND CONCLUSION

Criteria

The rating schedule is primarily a guide in the evaluation of
disability resulting from all types of diseases and injuries
encountered as a result of or incident to military service.
The percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity
resulting from such diseases and injuries and their residual
conditions in civil occupations.  38 C.F.R. � 4.1.  Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating.  Otherwise, the lower rating will
be assigned.  38 C.F.R. � 4.7.

Although a review of the recorded history of a disability is
necessary in order to make an accurate evaluation, see 38
C.F.R. �� 4.2, 4.41, the regulations do not give past medical
reports precedence over current findings where such current
findings are adequate and relevant to the rating issue.  See
Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13
Vet. App. 117 (1999).

In a claim for a greater original rating after an initial
award of service connection, all of the evidence submitted in
support of the veteran's claim is to be considered.  In
initial rating cases, separate ratings can be assigned for
separate periods of time based on the facts found, a practice
known as "staged" ratings.  See Fenderson v. West, 12 Vet.
App. 119 (1999); 38 C.F.R. � 4.2 (2003).

Both the use of manifestations not resulting from service-
connected disease or injury in establishing the service-
connected evaluation, and the evaluation of the same
manifestation under different diagnoses are to be avoided.
38 C.F.R. � 4.14.

Tinnitus, recurrent 10 percent.  Note (1): A separate
evaluation for tinnitus may be combined with an evaluation
under diagnostic codes 6100, 6200, 6204, or other diagnostic
code, except when tinnitus supports an evaluation under one
of those diagnostic codes.

Note (2): Assign only a single evaluation for recurrent
tinnitus, whether the sound is perceived in one ear, both
ears, or in the head. Note (3): Do not evaluate objective
tinnitus (in which the sound is audible to other people and
has a definable cause that may or may not be pathologic)
under this diagnostic code, but evaluate it as part of any
underlying condition causing it.  38 C.F.R. � 4.87 (2003), as
amended at 68 Fed. Reg. 25823, May 14, 2003.

Diagnostic Code 6260 (currently codified at 38 C.F.R.
� 4.87), as in effect prior to June 10, 1999, and as amended
as of that date, authorized a single 10 percent disability
rating for tinnitus, regardless of whether tinnitus is
perceived as unilateral, bilateral, or in the head.  Separate
ratings for tinnitus for each ear may not be assigned under
DC 6260 or any other diagnostic code.  VAOPGCPREC 2-03.

The Board shall be bound in its decisions by the regulations
of the Department, instructions of the Secretary, and the
precedent opinions of the chief legal officer of the
Department.  38 U.S.C.A. � 7104(c).

Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience.  To
accord justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities.  The governing
norm in these exceptional cases 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.  38 C.F.R. � 3.321(b)(1) (2003).

When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied.  Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary.  When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of the matter, the Secretary shall give the
benefit of the doubt to the claimant.  38 U.S.C.A. � 5107
(West 2002); 38 C.F.R. �� 3.102, 4.3 (2003).

Analysis

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000), among other things,
redefined 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 change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date.  VCAA,
Pub. L. No. 104-475, � 7(b), 114 Stat. 2096, 2099-2100
(2000); 38 U.S.C.A. � 5107 note (Effective and Applicability
Provisions).

VA has long recognized that the Department has a duty to
assist claimants in developing evidence pertinent to their
claims.  See the former version of 38 U.S.C.A. � 5107 (West
2002); 38 C.F.R. � 3.103(a) (2003).

The recent changes in law have amended the requirements as to
VA's development efforts in this, and other pending cases,
modifying and clarifying VA's duty to assist a claimant in
evidentiary development.  Kuzma v. Principi, 341 F.3d 1327
(Fed. Cir. 2003).

VA has published implementing regulations now codified as
amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a)
(2003).  The VCAA would be clearly applicable to this pending
claim if the effective date of the new law were the sole
consideration.  However, though seemly ubiquitous in its
application this case presents one of the judicially
recognized exceptions.

Here the extant law regarding compensation for tinnitus
controls the appellant's situation and no amount of
assistance or additional notice from VA will change the
outcome.  See generally, Smith v. Gober, 14 Vet. App. 227,
231-32 (2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149
(2001) (holding that statutory interpretation questions not
affected by enactment of VCAA).  See also Kane v. Principi,
17 Vet. App. 103 (2003) (extending nonapplication to
regulatory interpretation questions).  See also Sabonis v.
Brown, 6 Vet. App. 426 (1994).

Regarding argument referencing the VCAA, the Board directs
the representative's attention to VAOPGCPREC 2-04 wherein the
VA General Counsel concluded that under 38 U.S.C.A.
� 5103(a), VA is not required to provide notice of the
information and evidence necessary to substantiate a claim
for separate disability ratings for each ear for bilateral
service-connected tinnitus because there is no information or
evidence that could substantiate the claim, as entitlement to
separate ratings is barred by current Diagnostic Code (DC)
6260 and by the previous versions of DC 6260 as interpreted
by a precedent opinion of the General Counsel that is binding
on all Department officials and employees.

Turning to the merits of the claim, this matter turns on the
application of law, as the facts are not in dispute.
Basically, the 10 percent evaluation resulted from the RO
rating decision in November 2002 that represented the initial
rating from the grant of service connection.

The RO received the initial claim for tinnitus in August 2002
and determined that date was the effective date for service
connection and compensation.  The VA examiner in late 2002
noted the veteran complained of bilateral tinnitus.  The
subsequently filed claim for increase was based upon a
separate evaluation of 10 percent for each ear.
The rating he currently receives is the maximum schedular
evaluation for unilateral or bilateral tinnitus and the
statement of the case explained, in essence, that the grant
of service connection and the 10 percent evaluation
recognized a bilateral disorder.

The argument for a higher rating as reflected in the
representative's presentations is grounded generally in the
holding in Wanner v. Principi, 17 Vet. App. 4 (2003) and its
interpretation of the regulations, specifically section
4.25(b) and the applicable diagnostic code in the rating
schedule.  The Board will rely on the reasoning the VA
General Counsel provided in the precedent opinion, VAOPGCPREC
2-03 as it disposes of the claim grounded on an increased
schedular evaluation and responds adequately to the various
legal arguments made on appeal.

Therein the VA General Counsel explained that neither the
prior nor the amended regulation contained any language
suggesting that a separate tinnitus rating could be awarded
for each ear, nor does any other rating schedule provision in
effect prior to or after 1999 suggest that such separate
ratings may be awarded.  For example, 38 C.F.R. � 4.124a,
Diagnostic Code 8046, has long provided that, for purposes of
rating cerebral arteriosclerosis, "[p]urely subjective
complaints such as headache, dizziness, tinnitus, insomnia
and irritability . . . will be rated 10 percent and no more
under diagnostic code 9305."  In such cases, the condition
of tinnitus is taken into account as a rating factor which
may give rise to a maximum 10% disability rating without
regard to whether the condition is unilateral or bilateral in
nature.

The VA General Counsel found that the final amended rule
published in May 2003 pointed out that the intended effect of
this action is to codify current standard VA practice by
stating that recurrent tinnitus will be assigned only a
single 10-percent evaluation whether it is perceived in one
ear, both ears, or somewhere in the head.  As was stated in
the notice of proposed rulemaking, the amendment involved no
substantive change and was consistent with current practice.

Thus, the amendment restated in more explicit terms the rule
reflected in prior VA regulations that only a single 10%
rating for tinnitus is authorized regardless of whether
tinnitus is perceived as unilateral, bilateral, or in the
head.

The VA General Counsel explained that the 1999 amendment did
not reflect any change in view as to the nature of tinnitus
itself.  Thus, the most recent amendment DC 6260 in 2003
definitively stating that only a single 10% disability rating
is authorized for tinnitus merely restates the law as it
existed both prior to and after the 1999 amendment.
Accordingly, the rule that only a single 10% disability
rating is authorized for tinnitus regardless of whether the
tinnitus is perceived as unilateral, bilateral, or in the
head is for application in cases arising both before and
after the 1999 amendment.

Thus, there is no basis for a higher award under the rating
schedule.  Although the Board appreciates the argument on
behalf of the appellant, the Board is bound by the precedent
opinion of the VA General Counsel that addresses the matter
at hand.  38 U.S.C.A. � 7104(c).

Extraschedular Consideration

The Board is precluded by regulation from assigning an
extraschedular evaluation under 38 C.F.R. � 3.321(b)(1) in
the first instance.  Floyd v. Brown, 9 Vet. App. 88 (1996).
The Board, however, is still obligated to seek all issues
that are reasonably raised from a liberal reading of
documents or testimony of record and to identify all
potential theories of entitlement to a benefit under the law
or regulations.  Here the RO has provided the regulation and
obviously considered it, but did not grant compensation
benefits on this basis.

In Bagwell v. Brown, 9 Vet. App. 337 (1996), the United
States Court of appeals for Veterans Claims (CAVC) clarified
that it did not read the regulation as precluding the Board
from affirming an RO conclusion that a claim does not meet
the criteria for submission pursuant to 38 C.F.R.
� 3.321(b)(1), or from reaching such conclusion on its own.

The Board must address referral under 38 C.F.R. � 3.321(b)(1)
only where circumstances are presented which the VA Under
Secretary for Benefits or the Director of the VA Compensation
and Pension Service might consider exceptional or unusual.
Shipwash, 8 Vet. App. at 227.

The Board does not find the veteran's disability picture to
be unusual or exceptional in nature as to warrant referral of
his case to the Director or Under Secretary for review for
consideration of extraschedular evaluation under the
provisions of 38 C.F.R. � 3.321(b)(1).

In this regard, the Board notes that the RO has provided the
applicable regulation but no argument has been expressed by
the veteran for an extraschedular evaluation.  Nor do his
statements on appeal, as well as those of his representative,
imply that extraschedular evaluation is sought in the spirit
of the basic underlying claim for increased compensation
benefits for tinnitus.  Indeed, the argument has been
directed solely to the interpretation of the schedular
criteria.  Thus, the Board finds that it is not material to
the determination in this case.  Having reviewed the record
with these mandates in mind, the Board finds no basis for
further action on this question.

ORDER

Entitlement to a separate disability evaluation of 10 percent
for tinnitus of each ear is denied.

____________________________________________
	RONALD R. BOSCH
	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
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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.

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