judge_norm: JACQUELINE E MONROE

condition: back

text:
Citation Nr: 0334000
Decision Date: 12/05/03    Archive Date: 12/15/03

DOCKET NO.  01-04 207	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Indianapolis, Indiana

THE ISSUES

1.  Whether new and material evidence has been received to
reopen the claim for service connection for a low back
disability.

2.  Whether new and material evidence has been received to
reopen the claim for service connection for a cervical spine
disability.

REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney

ATTORNEY FOR THE BOARD

M. Tenner, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1944 to
December 1945, and from February 1951 to June 1952.

The Board of Veterans' Appeals (Board) previously denied
service connection for a low back disability in December
1986.  In October 1989, the Board concluded that the evidence
submitted by the veteran was not new and material, and his
claim for service connection for a low back disability was
not reopened.  The Board's October 1989 decision also denied
the veteran's claim for service connection for residuals of
an injury to the cervical spine.

These matters come before the Board from an October 2000
rating decision of the RO that held that new and material
evidence had not been submitted to reopen claims for service
connection for a low back disability or for residuals of an
injury to the cervical spine.  The veteran filed a notice of
disagreement in October 2000.  The RO issued a statement of
the case in March 2001, and, that same month, the RO received
the veteran's substantive appeal.

The Board issued a decision in October 2001 that denied
reopening the veteran's claims.  The veteran filed a timely
appeal to the United States Court of Appeals for Veteran's
Claims (Court).  In September 2002, the parties to the appeal
filed a Joint Motion for Remand and to Stay Further
Proceedings (joint motion).  By an Order dated in October
2002, the Court granted the motion and vacated the Board's
October 2001 decision and remanded the matters to the Board
for further proceedings consistent with the joint motion.

FINDINGS OF FACT

1.  All notification and development action needed to render
a fair decision on the claims on appeal has been
accomplished.

2.  By a decision in October 1989, the Board concluded that
new and material evidence had not been submitted to reopen
the veteran's claim for service connection for a low back
disability.

3.  Additional evidence associated with the claims file since
the October 1989 Board decision, namely a November 1988 VA
outpatient treatment note, was not previously considered, is
not cumulative or duplicative, and is so significant that it
must be considered in order to fairly decide the merits of
the claim for service connection for a low back disability.

4.  By decision dated in October 1989, the Board concluded
that a cervical spine disorder did not have its origin in
service.

5.  The evidence added to the record since the October 1989
Board decision is cumulative of the evidence previously
considered and is not so significant that it must be
considered in order to decide fairly the merits of the claim
for service connection for residuals of a cervical spine
injury.

CONCLUSIONS OF LAW

1.  The October 1989 Board decision that denied reopening the
veteran's claim for service connection for a low back
disability and denied service connection for a cervical spine
disability is final.  38 U.S.C.A. �� 7103, 7104 (West 2002);
38 C.F.R. � 20.1100 (2002).

2.  New and material evidence to reopen the veteran's claim
for service connection for a low back disability has been
received and the claim is reopened.  38 U.S.C.A. � 5108 (West
2002); 38 C.F.R. � 3.156 (2002).

3.  The evidence associated with the claims file since the
October 1989 Board decision is not new and material; thus,
the requirements to reopen the claim for service connection
for residuals of a cervical spine injury have not been met.
38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

At the outset, the Board notes that, during the pendency of
this appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A,
and 5107 (West 2002).  This liberalizing law is applicable to
this appeal.  See Karnas v. Derwinski, 1 Vet. App. 308, 312-
13 (1991).  To implement the provisions of the law, the VA
promulgated regulations published at 66 Fed. Reg. 45,620
(Aug. 29, 2001) (codified at 38 C.F.R. �� 3.102, 3.156(a),
3.159, 3.326(a) (2002)).  The VCAA and its implementing
regulations essentially eliminate the concept of the well-
grounded claim.  38 U.S.C.A. � 5107(a); 38 C.F.R. � 3.102.
They also include, upon the submission of a substantially
complete application for benefits, an enhanced duty on the
part of the VA to notify a claimant of the information and
evidence needed to substantiate a claim, as well as the duty
to notify the claimant what evidence will be obtained by
whom.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b).  In
addition, they define the obligation of the VA with respect
to its duty to assist a claimant in obtaining evidence.
38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159(c).

The Board points out that the VCAA expressly provides that
nothing in the Act "shall be construed to require [VA] to
reopen a claim that has been disallowed except when new and
material evidence is presented or secured, as described in
section 5108 of this title."  38 U.S.C. � 5103A(f).

In any event, the Board finds that all notification and
development action needed to fairly adjudicate the claims on
appeal has been accomplished.

By way of the October 2000 rating decision, the March 2001
Statement of the Case, the RO advised the veteran and his
representative of the basic laws and regulations governing
his claims and the bases for the denial of the claims.
Hence, the Board finds that they have been given notice of
the information and evidence needed to substantiate the
claims, and, as evidenced by various letters soliciting
information and/or evidence have been afforded opportunities
to submit such information and evidence.

Subsequent to filing of his claims, in October 2000, the RO
sent a letter to the veteran and his representative advising
him of the criteria necessary to reopen a finally disallowed
claim, the type of evidence that would be helpful for his
claims and further advising the veteran of his responsibility
to submit such evidence.  A report of contact dated October
16, 2000 indicates that RO personnel spoke with the veteran
and advised him that new and material evidence was required
to reopen his claims.  Furthermore, the veteran was advised
by letter of April 2001 of the changes in the law brought
about by passage of the VCAA.  The letter instructed the
veteran to provide authorization to enable it to obtain any
outstanding private medical records, and information to
enable it to obtain any outstanding relevant records.  The
veteran was advised that the RO would attempt to obtain
identified records, however it was ultimately his
responsibility to ensure that the records were sent to the
RO.  The veteran did not respond to the RO's letter.
Accordingly, in response to points raised by the parties in
the joint motion, the Board finds that the statutory and
regulatory requirement that VA notify a claimant what
evidence, if any, will be obtained by the claimant and which
evidence, if any, will be retrieved by the VA, has been met.
See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
(addressing the duties imposed by 38 U.S.C. � 5103(a) and 38
C.F.R. � 3.159(b)).

Additionally, the Board also finds that all necessary
development has been accomplished.  VA outpatient treatment
records have been associated with the claims file, and, as
indicated above, the RO has sought authorization to obtain
any outstanding private outpatient treatment records.
Significantly, neither the veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of either of the claims that has not been
obtained.

Under these circumstances, the Board finds that adjudication
of the claims under consideration at this juncture, without
directing or accomplishing any additional notification and or
development action, poses no risk of prejudice to the
veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394
(1993).  The claims are ready to be considered on the merits.

II.  Background

As noted above, in December 1986, the Board denied the
veteran's claim for service connection for a low back
disability.  Evidence then before the Board included the
veteran's service medical records that showed that the
veteran fell from a ladder and lacerated his scalp.  There
were no complaints of diagnosis of a back disorder.  A
separation examination in December 1945 was normal.  Post
service medical records included a 1985 VA examination and
treatment records that showed cervical spondylosis and
degenerative disease of the lumbar spine.  The Board found
that a low back disability was not demonstrated in service
and first appeared several years after military service.

In a Board decision in October 1989, the Board denied
reopening the claim for service connection for a low back
disability and denied the veteran's claim for service
connection for residuals of an injury to the cervical spine.
Evidence included a VA examination in March 1960 wherein the
reported that while aboard a ship in service, he fell down a
ladder and the back of his head struck the ladder. An
examination disclosed that the only musculoskeletal condition
found involved the bone defect in the mid occipital region.
The examiner indicated that this was, presumably, the result
of the fall in service.  No other musculoskeletal disease was
found.  There was no diagnosis pertaining to the low back or
cervical spine.

The veteran was admitted to a private hospital in August 1966
for unrelated complaints.  An examination of the back was
essentially normal.

Private medical records include complaints of back pain in
May 1978.  An X-ray study of the lumbosacral spine in
November 1978 revealed a degenerative disc at L2-L3.

The veteran was hospitalized by the VA in March 1985
primarily for unrelated complaints.  It was indicated that he
had been scheduled to be admitted the next day, but presented
to the emergency room due to severe sacroiliac back pain.
There were no pertinent findings or diagnoses.

On VA examination in June 1985, the veteran related that he
had arthritis in his back, from the neck to his spine.  He
stated that during service, he had a head injury that also
damaged his spine.  He reported that the ship he was on was
attacked and he was thrown down to the lower deck, and this
resulted in damage to his head and back.  On examination of
the musculoskeletal system, it was noted that the veteran was
post fracture of the cervical spine.  An X-ray study of the
cervical spine revealed cervical spondylosis.  The pertinent
diagnosis was cervical spondylosis.

VA medical records dated in 1985 have been associated with
the claims file.  In March 1985, an examination of the
veteran's lumbar and cervical spine was normal. There was
pain over the sacroiliac joints bilaterally.  There was full
range of motion of all joints and straight leg raising was
negative, bilaterally.  The pertinent impression was back
pain, probably sacroiliac joint pain.  An X-ray study of the
lumbar spine in September 1985 revealed osteoarthritic
changes.

The veteran was hospitalized by the VA for unrelated
complaints in May 1987.  The pertinent diagnoses were
cervical vertebra displacement, probably secondary to history
of probably degenerative joint disease and cervical
arthralgia.

VA outpatient treatment records disclose that the veteran was
seen in May 1987 and related that he had been having neck
pain for many years.  Following an examination, the pertinent
assessment was degenerative arthritis of the neck with neck
pain, with no evidence for radiculopathy.

A May 1988 hearing transcript, wherein the veteran relates
his spinal disorders to active service, is also of record.

In the October 1989 Board decision, the Board found that a
cervical spine disability was not present until several years
after service and was not etiologically due to the veteran's
military service.  The veteran was notified of the Board's
decision later that month.

In September 2000, the veteran moved to reopen the previously
denied claims for service connection for a low back and
cervical spine disability.

The evidence received since the October 1989 Board decision
includes VA outpatient treatment records and lay statements.

Of record is a duplicate of an X-ray study of the cervical
spine in June 1985.

VA medical records dated in 1988 were associated with the
claims file subsequent to the Board's October 1989 decision.
In March 1988, the veteran complained of chronic pain,
including pain in the back.  He reported a stiff neck in June
of that year, and it was indicated that a physician felt that
it was due to cervical spine arthritis.  The veteran was
hospitalized by the VA the following month, and it was noted
that he had fallen down four flights of stairs on the day
prior to admission.  The pertinent diagnosis on discharge was
pain in the back of unknown etiology.  In August 1988, the
veteran related that he had had pain in his lower back since
he fell earlier that month.  Following an examination, the
impression was impingement of the left lumbar roots.  A
clinic note dated in November 1988 reflects a pertinent
diagnosis of degenerative joint disease of the left hip and
low back with post-traumatic pain, 1944.

In a statement dated in October 2000, a VA physician related
that he followed the veteran for various problems, including
degenerative joint disease and chronic low back pain.

The veteran's sister, in a letter received in October 2000,
related that she recalled that after the veteran was
discharged from his first period of service, he had neck and
back pain. She added that he had experienced problems since
then.  She noted that he went to a clinic for his problems in
January 1946.

In a statement received in October 2000, L.T. related that
the veteran had been injured in service and that his medical
problems "occurred" in service.

Additional VA medical records dated in 1999 and 2000 are of
record.  These reflect continuing treatment for complaints
involving the neck and back.

III.  Analysis

When the Board disallows a claim, the disallowance is final
unless the Chairman determines that reconsideration is
warranted, or another exception to finality applies.
Otherwise, no claim based upon the same factual basis shall
be considered.  See 38 U.S.C.A. �� 7103, 7104 (West 2002);
38 C.F.R. � 20.1100 (2002).  As reconsideration of the
October 1986 and October 1989 Board decisions have not been
ordered, and no other exception to finality applies, those
decisions are final as to the evidence then of record.

Under pertinent law and VA regulations, VA may reopen and
review a claim that has been previously denied if new and
material evidence is submitted by or on behalf of the
veteran.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156(a); see also
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Pursuant to 38 C.F.R. � 3.156(a), new and material evidence
means evidence not previously before agency decision-makers
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
[Parenthetically, the Board notes that the regulations
implementing the VCAA includes a revision of 38 C.F.R.
� 3.156(a).  However, the revised version of 38 C.F.R.
� 3.156(a) is only applicable to claims filed on or after
August 29, 2001.  See 66 Fed. Reg. 45620-45632 (August 29,
2001).  Hence, the Board will apply the version of 3.156(a)
in effect at the time of the October 2000 denial (culminating
in the current appeal); that version appears in the 2001
edition of Title 38 of the Code of Federal Regulations.]

Thus, if the newly presented evidence is not "new," the
claim to reopen fails on that basis and no further analysis
of the evidence is required.  Similarly, if "new" evidence
is not "material," in the sense that, when considered by
itself or in connection with evidence previously assembled,
it is not so significant that it must be considered in order
to fairly decide the merits of the claim, the claim to reopen
fails on that basis and the inquiry ends.  If the evidence is
determined to be both new and material, VA reopens the claim
and evaluates the merits after ensuring that the duty to
assist has been fulfilled.  38 C.F.R. � 3.156.

The provisions of 38 U.S.C.A. � 5108 require a review of all
evidence received since the previously disallowed claim in
order to determine whether a claim must be reopened.  See
Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Furthermore,
for purposes of the "new and material" analysis, the
credibility of the evidence is presumed.  Justus v. Principi,
3 Vet. App. 510, 512-513 (1992).

Initially, the Board notes that it appears that certain
documents once contained in the claims file may have been
removed from the file and possibly destroyed by a former
Board employee.  It appears that some service medical records
have been removed from the file.  Every effort has been made
to secure duplicate or equivalent records and associate them
with the claims file.  In this regard, the Board notes that
the RO attempted to obtain additional service medical records
from the National Personnel Records Center.  However, in both
April 1993 and November 1996, the National Personnel Records
Center indicated that medical records had been sent.  It was
specifically indicated in November 1996 that all available
records had been forwarded to the VA.  The Board also
recognizes that there is a heightened obligation to explain
findings and conclusions and to consider carefully the
benefit of the doubt rule in cases, such as this, in which
records are presumed to have been or were destroyed while the
file was in the possession of the government.  Pruitt v.
Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1
Vet. App. 365, 367 (1991).  The Board's analysis of the
veteran's claim was undertaken with this duty in mind.  The
case law does not, however, lower the legal standard for
proving a claim for service connection but rather increases
the Board's obligation to evaluate and discuss in its
decision all the evidence that may be favorable to the
veteran. Russo v. Brown, 9 Vet. App. 46 (1996).

The Board notes that the veteran's claim for service
connection for a low back disability was denied in October
1989 on the basis that the additional evidence received since
the prior Board determination did not alter the basis of the
finding that a low back disorder was not present for many
years after service.  In addition, the claim for service
connection for a cervical spine disability was denied on the
basis that it was first documented many years after service.
It could not be concluded that a cervical spine disability
had its inception in service.

The evidence added to the record since the Board's October
1989 decision includes extensive VA medical records, some of
which were previously of record, and statements from the
veteran's sister and a long time acquaintance.

The veteran's sister and a long time friend related that the
veteran had back and neck problems upon his discharge from
service.  The veteran's sister further reported that he
sought treatment for his medical problems in January 1946.
It is significant to point out, however, that the veteran was
examined prior to his second period of service, and there
were no clinical abnormalities of the spine or neck.  In
addition, the Board notes the spine was normal on separation
examination in June 1952.  To the extent that the statements
of the veteran's sister and friend have been offered to
establish the presence of back and neck disabilities upon his
discharge from service, the Board finds that, since neither
is shown to have medical training or to expertise, neither is
competent to express a probative opinion on a medical matter.
See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing
Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992).  See
also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge").  Accordingly, where, as here,
resolution of the issue turns on a medical matter,
unsupported lay statements, even if new, cannot serve as a
predicate to reopen a previously disallowed claim.  See Moray
v. Brown, 5 Vet. App. 211, 214 (1993).  For those reasons,
the lay assertions are not so significant that they must be
considered to fairly decide the merits of the claim.

As for the medical records added to the claims file since
October 1989, the Board notes, initially, that all of these
records reflect treatment the veteran received for low back
and cervical spine complaints many years after service.

None of this evidence provides any basis to reopen the claim
for service connection for a cervical spine disability, as
none of the evidence establishes a medical nexus between any
current cervical spine disability and service.  As such, the
requirements for reopening the claim for service connection
for cervical spine disability have not been met, and the
October 1989 decision, as to the denial of that claim,
remains final.

However, as regards the claim for service connection for low
back disability, the Board finds that the November 1988
treatment note which includes a reference to "1944"
(suggesting that the veteran's low back problems began in
service) constitutes new and material evidence to reopen that
claim.  While the mere mention of a the year "1944" in and
of itself is not conclusive evidence of the etiology of the
veteran's back disorder, for purposes of reopening, the Board
presumes the credibility of the evidence notes that the
evidence need only, at a minimum, "contribute to a more
complete picture of the circumstances surrounding the origin
of the veteran's injury or disability", even where it will
not eventually convince VA to alter its decision.  See Hodge,
155 F.3d at 1363; 38 C.F.R. � 3.156.  As new and material
evidence has been submitted, the criteria for reopening the
claim for service connection for a low back disability have
been met.  See 38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.

ORDER

As new and material evidence has been received to reopen the
claim for service connection for a low back disability, to
this extent only, the appeal is granted.

As new and material evidence has not been received to reopen
the claim for service connection for a cervical spine
disability, the appeal as to that issue is denied.

REMAND

In light of the Board's conclusion that the claim of service
connection for a low back disability is reopened, the claim
must be reviewed on a de novo basis.  In order to ensure that
the veteran's procedural rights are protected insofar as he
is provided adequate notice and opportunity to present
argument and evidence on the underlying question of service
connection, a remand of the case to the RO is indicated.  See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

The Board also finds that additional development of this
claim is warranted.  The VCAA and implementing regulations
provide that VA examinations should be ordered to address
matters that require medical knowledge, to include the
question of nexus, if needed to resolve the issue on appeal.
See 38 U.S.C.A. � 5103A(d)(2); 38 C.F.R. � 3.159(c)(4)(i).
In this regard, there is no competent evidence of record
addressing the underlying issue of whether it at least as
likely as not that the veteran low back disability is related
to service.  Hence, further examination of the veteran is
warranted.

The veteran is herein advised that, in keeping with VA's duty
to assist, the purpose of any examination requested pursuant
to this remand is to obtain information or evidence that may
be dispositive of the appeal.  See Connolly v. Derwinski, 1
Vet. App. 566, 569 (1991).  If the veteran fails to report
for any scheduled examination, a decision shall be based on
the evidence of record.  See 38 C.F.R. � 3.655.

The action identified herein is consistent with the duties
imposed by the VCAA.  However, identification of specific
actions requested on remand does not relieve the RO of the
responsibility to ensure full compliance with the VCAA and
implementing regulations.  Hence, in addition to the action
requested above, the RO should also undertake any other
development and/or notification action deemed warranted by
the VCAA prior to adjudicating the veteran's service
connection claim.

Accordingly, this matter is hereby REMANDED to the RO for the
following actions:

1.  The RO should contact the veteran and
his attorney for the purpose of
determining whether there are any
additional arguments to present on the
veteran's behalf or evidence to submit in
support of his claim for service
connection, on the merits.

2.  If the veteran or his attorney
identifies (and provides sufficient
information, and, if necessary,
authorization for) additional,
outstanding pertinent medical evidence,
the RO should attempt to obtain such
evidence, following the procedures
prescribed in 38 C.F.R. � 3.159

3.  After the veteran and/or his attorney
responds and all records/responses from
each contacted entity have been
associated with the claims (or a
reasonable time period for the veteran's
response has expired), the RO should
arrange the veteran to undergo VA
orthopedic examination of the low back at
the appropriate VA medical facility.  The
entire claims file must be made available
to the physician designated to examine
the veteran and the examination report
should include discussion of the
veteran's documented medical history and
assertions.  All indicated studies and
tests should be accomplished, and all
clinical findings should be reported in
detail and clinically correlated to a
specific diagnosis.

Based on examination, review of the
record, and the veteran's assertions, the
examiner should render an opinion,
consistent with sound medical principles,
as to whether it is, at least as likely
as not, that any currently diagnosed low
back disability is the result of disease
or injury incurred or aggravated during
active military service.

The examiner should set forth all
examination findings, along with the
complete rationale for the opinions
expressed, in a typewritten report.

4.  If the veteran fails to report to the
scheduled examination, the RO should
obtain and associate with the record any
notice(s) from the pertinent VA medical
facility that informs the veteran of the
date and time of the examination.

5.  To help avoid future remand, the RO
must ensure that the requested action has
been accomplished (to the extent
possible) in compliance with this REMAND.
If any action is not undertaken, or is
taken in a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).

6.  The RO must also review the claims
file to ensure that any additional
notification and/or development required
by the VCAA has been accomplished.

7.  After completing the requested
action, and any additional notification
and/or development deemed warranted, the
RO should adjudicate the claim for
service connection for low back
disability, on the merits, in light of
all pertinent evidence and legal
authority.

8.  If the benefits sought on appeal
remain denied, the RO should furnish to
the veteran and his attorney an
appropriate SSOC (to include full reasons
and bases for the RO's determinations)
and afford him the appropriate period of
time for written or other response
thereto before the claims file is
returned to the Board for further
appellate consideration.

The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied.  The veteran need take
no action until otherwise notified, but he may
furnish additional evidence and/or argument during the
appropriate time frame.  See Kutscherousky v. West, 12 Vet.
App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996);
Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992).

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 Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West 2002) (Historical and Statutory
Notes).  In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court.  See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.

______________________________________________
	JACQUELINE E. MONROE
	Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

?	These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
?	In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.

 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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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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series: legacy

judge_norm: S KELLER

disposition: remanded

text: Prior to May 1, 2003, the Board's regulations provided that if further evidence, clarification of the evidence, correction of a procedural defect, or any other action was essential for a proper appellate decision, a Board Member or panel of Members could direct Board personnel to undertake the action essential for a proper appellate decision. See 38 C.F.R. § 19.9(a)(2) (2002). [is remanded]

text:
Citation Nr: 0335000
Decision Date: 12/15/03    Archive Date: 12/24/03

DOCKET NO.  97-08 366	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to an increased evaluation for a psychiatric
disorder.

REPRESENTATION

Appellant represented by:	Louis Demier. Attorney

ATTORNEY FOR THE BOARD

L. M. Barnard, Counsel

REMAND

On June 17, 2003, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case.  Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.

Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision.  See 38
C.F.R. � 19.9(a)(2) (2002).

However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. � 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV").  The Federal Circuit held that 38
C.F.R. � 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. � 20.1304, was inconsistent with 38
U.S.C. � 7104(a), because 38 C.F.R. � 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.

Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA).  VAOPGCPREC 1-03.  Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.

Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions.  In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. �� 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.

In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the
following:

1.  Request the following records
concerning the veteran be obtained:
records utilized in the Social Security
Administration's decision that the
veteran was under a disability; and
records utilized by the Commonwealth of
Puerto Rico in determining that the
veteran was not capable of administering
his funds and required a guardian.

2.  After the development requested above
has been completed to the extent
possible, the RO should again review the
record.  If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.

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 appellant need take no action
unless otherwise notified.

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 Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West 2002) (Historical and Statutory
Notes).  In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court.  See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.

	S. KELLER
	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) (2002).


judge_norm: P M DILORENZO

disposition: denied

condition: heart

text:
Citation Nr: 0401000
Decision Date: 01/12/04    Archive Date: 01/22/04

DOCKET NO.  03-06 649	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas

THE ISSUE

Entitlement to service connection for residuals of a heart
disorder.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

D. Orfanoudis, Counsel

INTRODUCTION

The veteran served on active duty from April 1953 to April
1955.

This case comes before the Board of Veterans' Appeals (Board)
on appeal from a March 2002 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Houston,
Texas, that denied the above claim.

FINDING OF FACT

A heart disorder did not have its onset during active service
or result from disease or injury in service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for
residuals of a heart disorder have not been met.  38 U.S.C.A.
�� 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R.
�� 3.303, 3.307, 3.309 (2003).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA has a duty to assist the appellant in the development of
facts pertinent to his claim.  On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
This law redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.

VA must notify the veteran of evidence and information
necessary to substantiate his claim and inform him whether he
or VA bears the burden of producing or obtaining that
evidence or information.  38 U.S.C.A. � 5103(a) (West 2002);
38 C.F.R. � 3.159(b) (2003); Quartuccio v. Principi, 16 Vet.
App. 183 (2002).  VA satisfied this duty by means of August
and October 2001 letters to the veteran and the discussions
in the March 2002 rating decision and January 2003 Statement
of the Case (SOC).

The notification letter sent to the veteran in August 2001
also properly notified him of his statutory rights.  See
Paralyzed Veterans of America, et. al. v. Secretary of
Department of Veterans Affairs (PVA), 345 F.3d 1334 (Fed.
Cir. 2003); Disabled American Veterans, et. al. v. Secretary
of Department of Veterans Affairs (DAV), 327 F.3d 1339 (Fed.
Cir. 2003).  That is, even though the letter did not specify
a period of time within which to provide any additional
information, it did indicate that the veteran would be
notified every 60 days until the claim had been decided.
Moreover, an amendment to the VCAA was recently enacted
clarifying that the one-year period within which evidence may
be submitted does not prohibit VA from making a decision on a
claim before expiration of that time period.  Veterans
Benefits Act of 2003, Pub. L. No. 108-183, � 701, 117 Stat.
2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. �
____)

VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. � 5103A(a) (West 2002); 38 C.F.R. � 3.159(c), (d)
(2003).  The RO obtained the veteran's separation examination
report.  However, the National Personnel Records Center
(NPRC) reported that no other service medical records were
available and were presumed destroyed in a fire at NPRC in
1973.  Further efforts to obtain these records would be
futile.  See 38 U.S.C.A. � 5103A(b)(3) (West 2002); 38 C.F.R.
� 3.159(c)(2) (2003).  The veteran has not reported receiving
any VA treatment, and his private treatment records were
obtained by the RO.

Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. � 5103A(d) (West 2002); 38 C.F.R. � 3.159(c)(4)
(2003).  The veteran was not afforded a VA examination.
There is no evidence that he actually had a heart disorder
during service.  In fact, the evidence indicates otherwise.
On separation examination in 1955, examination of his heart
was normal.

Because there is no competent evidence tending to show that
the veteran had a heart disorder during service, VA's duty to
assist is not triggered.  Cf. Charles v. Principi, 16 Vet.
App. 370 (2002).  Even taking into account the veteran's
statements, these criteria have not been met.  A heart
disorder is not the type of condition where the veteran's
statements alone could provide a link to active service.
This is because he lacks the education, training, or
experience to offer medical diagnoses or opinions.  See
Explanatory Statement on H.R. 4864, As Amended, 146 Cong.
Rec. H 9912, H 9915 (Oct. 17, 2000) (defining "competent
evidence" as "fit for the purpose for which it is
offered," meaning a lay person can provide evidence that he
has pain, such as pain in the knee, but not that he has, for
example, a torn ligament, because that diagnosis requires
more sophisticated information provided by special
examination or testing).  In this particular case, the
persistent or recurrent symptoms of such a condition are not
the type of things that can be observed by a lay person.  38
U.S.C.A. 5103A(d) (West 2002); 38 C.F.R. 3.159(c)(4)(A)
(2002).  See also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge"), aff'd sub nom. Routen
v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S.
Ct. 404 (1998).
Accordingly, the requirements of the VCAA have been met by
the RO to the extent possible.

Service Connection

Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service.  38 U.S.C.A. �� 1110, 1131 (West
2002); 38 C.F.R. � 3.303(a) (2003).

In order to prevail on the issue of service connection for
any particular disability, there must be medical evidence of
a current disability; medical evidence, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between an in-service injury or disease and the current
disability.  See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).

Service connection for certain chronic disorder, including
cardiovascular-renal disease, may be established based on a
legal "presumption" by showing that it manifested itself to
a degree of 10 percent or more within one year from the date
of separation from service.  38 U.S.C.A. � 1112 (West 2002);
38 C.F.R. �� 3.307, 3.309 (2003).

The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant.  See Masors
v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2
Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet.
App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Equal weight is not accorded to each piece of evidence
contained in the record; every item of evidence does not have
the same probative value.

The majority of the veteran's service medical records are
apparently unavailable, having been destroyed in a fire at
the National Personnel Records Center records center in 1973.
The Board recognizes that there is a heightened obligation to
assist a claimant in the development of his case, a
heightened obligation to explain findings and conclusions and
to consider carefully the benefit of the doubt rule in cases,
such as in this situation, in which records are presumed to
have been or were destroyed while the file was in the
possession of the government.  O'Hare v. Derwinski, 1 Vet.
App. 365, 367 (1991).

The veteran's available service medical records are negative
for any reports, treatment or diagnoses of any heart disorder
during his period of active service.  A report of medical
examination completed at separation in April 1955, shows that
upon clinical evaluation, his heart and vascular system were
normal.

Subsequent to service, a private diagnostic imaging and
outpatient treatment records dated from June 2000 to May 2001
show that the veteran was found to have mild cardiac
enlargement.  There was no active disease, coronary arteries
were normal and free of arteriosclerosis by angiographic
criteria.  The conclusions were dilated left ventricle with
estimated fraction of 50 percent, plus or minus 5 percent
with mild inferior, posterior basal, and apical wall
hypokinesis.  He had normal coronary arteries.  The diagnosis
was consistent with dilated cardiomyopathy, non ischemic.

After a careful review of the evidence of record, the Board
finds that the preponderance of the evidence is against the
veteran's claim of entitlement to service connection for
residuals of a heart disorder.  The available service medical
records that included a complete review of systems at
separation are negative for any complaints or findings of any
related heart disorder.  Post-service treatment records dated
from June 2000 show that the veteran had developed mild
cardiac enlargement, a 50 percent dilated left ventricle with
mild inferior, posterior basal, and apical wall hypokinesis.
However, there was no indication that this was in any way
related to service, nor is there indication that he had
developed a heart disorder until many years following his
separation from service, and such manifestation has not been
etiologically related to his period of active service.  As
such, there is no competent medical evidence of record that
the veteran has a current disability that has been
etiologically related to his period of active service.

Any contentions by the veteran that he has a current heart
disorder that is somehow related to his active service, even
if presented as sworn testimony, is not competent.  There is
no indication that he possesses the requisite medical
knowledge or education to render a probative opinion
involving medical diagnosis or medical causation.  See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

Similarly, the evidence has not shown that the veteran had
been diagnosed with  a heart disorder which had become
manifested to a degree of at least 10 percent within one year
following his separation from service.  A heart condition was
not demonstrated until many years after service.  As such,
service connection on a presumptive basis is not warranted.
See 38 U.S.C.A. � 1112 (West 2002); 38 C.F.R. �� 3.307, 3.309
(2003).

For the reasons and bases provided above, the evidence in
this case preponderates against the claim for service
connection for residuals of a heart disorder.  See Degmetich
v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown,
155 F.3d 1353 (Fed. Cir. 1998).  The evidence in this case is
not so evenly balanced so as to allow application of the
benefit of the doubt rule as required by law and VA
regulations.  See 38 U.S.C.A. �5107 (West 2002).

ORDER

Entitlement to service connection for residuals of a heart
disorder is denied.

____________________________________________
	P.M. DILORENZO
	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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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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judge_norm: H N SCHWARTZ

text:
Citation Nr: 0402000
Decision Date: 01/20/04    Archive Date: 01/28/04

DOCKET NO.  03-09 692	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines

THE ISSUE

Entitlement to service connection for the cause of the
veteran's death.

ATTORNEY FOR THE BOARD

K. Parakkal, Counsel

INTRODUCTION

The veteran served on active duty from September 1943 to
September 1945.  He died on July [redacted], 2000.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a November 2002 RO decision that denied the
appellant's claim of service connection for the cause of the
veteran's death.

It is noted that the appellant cancelled her Board hearing
and did not request that such be rescheduled; as such, the
Board may proceed with appellate review of her claim.

FINDINGS OF FACT

1.  The veteran died on July [redacted], 2000.

2.  At the time of his death, the veteran was not service-
connected for any condition.

3.  The causes of death, pulmonary arrest, community acquired
pneumonia, and chronic obstructive pulmonary disease (COPD)
are not attributable to a disease or injury in service.

CONCLUSION OF LAW

A disability incurred in or aggravated by service did not
cause death, and did not contribute substantially or
materially to the cause of death.  38 U.S.C.A. � 1310, 5102,
5103, 5103A, 5107 (West Supp. 2002); 38 C.F.R. � 3.159, 3.312
(2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

There has been a significant change in the law during the
pendency of this appeal with the enactment of the VCAA.
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2002).  Regulations implementing the VCAA are now
published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001)
(38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326).  Except as specifically
noted, the new regulations are effective November 9, 2000.
This law eliminates the concept of a well-grounded claim,
redefines the obligations of VA with respect to the duty to
assist, and supersedes the decision of the United States
Court of Appeals for Veterans Claims in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom.  Morton v. Gober,
No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order)
(holding that VA cannot assist in the development of a claim
that is not well grounded).  The new law also includes an
enhanced duty to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.

First, VA has a duty to notify the appellant and her
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. �� 5102, 5103.  The record shows that the
appellant was properly notified of the outcome of the
November 2002 rating decision that denied her claim of
service connection and of the reasons and bases for the
denial of her claim.  The Board concludes that the
discussions in the November 2002 rating decision, statement
of the case (issued in February 2003), and numerous letters
over the years (including the June 2002 VCAA letter) informed
the appellant of the information and evidence needed to
substantiate her claim and complied with VA's notification
requirements.  Specifically, the Board concludes that the RO
decision, SOC, and various letters informed her of:  why the
evidence on file was insufficient to grant service
connection; what evidence the record revealed; what VA was
doing to develop the claim; and what information and evidence
was needed to substantiate her claim.  The June 2002 VCAA
letter specifically informed her of what she should do in
support of the claim, where to send the evidence, and what
she should do if he had questions or needed assistance.
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  She was for
the most part informed to submit everything she had with
regard to her service connection claim.  Finally, it is noted
the VCAA letter was issued prior to the adverse decision.
Peligrini v. Principi, No. 01-944 (U.S. Vet. App. Jan. 13,
2004).  VA has met its duty to notify the appellant.

Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim.  38 U.S.C.A.
� 5103A.  VA has made efforts to develop the record and has
obtained all identified outstanding records.  In sum, the
Board find that the record contains sufficient evidence to
make a decision on the claim.  VA has fulfilled its duty to
assist.

In the circumstances of this case, a remand would serve no
useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).  VA has satisfied its duties to
notify and to assist the appellant in this case.  As such,
the Board will proceed with a discussion of the merits of the
appellant's claim.

To establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death.  For
a service-connected disability to be the cause of death, it
must singly or with some other condition be the immediate or
underlying cause, or be etiologically related.  For a
service-connected disability to constitute a contributory
cause, it is not sufficient to show that it casually shared
in producing death, but rather it must be shown that there
was a causal connection.  38 U.S.C.A. � 1310; 38 C.F.R. �
3.312.

In order to establish service connection for claimed
disability, the facts, as shown by the evidence, must
demonstrate that a particular disease or injury resulting in
disability was incurred in or aggravated by service.  38
U.S.C.A. � 1110; 38 C.F.R. � 3.303.  If a disability is not
shown to be chronic during service, service connection may
nevertheless be granted when there is continuity of
symptomatology post-service.  38 C.F.R. � 3.303(b).
Regulations also provide that service connection may be
granted for a disease diagnosed after service discharge when
all the evidence establishes that the disease was incurred in
service.  38 C.F.R. � 3.303(d).

The certificate of death shows that the immediate cause of
death was pulmonary arrest; the antecedent cause was
community pneumonia; and the underlying cause was COPD.  The
available service medical records do not show that the
veteran had pulmonary problems during service.  The veteran's
February 1946 separation examination report shows that his
lungs and chest x-rays were negative.  Private
hospitalization records (from Abon Health Care and Specialty
Clinic) dated in 2000 reveal the first post-service findings
of pulmonary problems.  (Other private records on file do not
address the veteran's causes of death.)  The records from
Abon Health Care are from several decades after service
separation, and there is nothing to link the veteran's
pulmonary problems to a disease or injury in service.

The issue of whether the cause of the veteran's death is
related to active service, in general, requires competent
evidence.  However, the appellant is not a medical
professional and any statements from her do not constitute
competent medical evidence that the veteran suffered from
pulmonary problems in service.  Generally, lay persons are
not competent to offer evidence that requires medical
knowledge.  Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992) (holding that a witness must be competent in order for
his statements or testimony to be probative as to the facts
under consideration).  The preponderance of the evidence is
against the claim and there is no doubt to be resolved.
Consequently, the appellant's claim of entitlement to service
connection for the cause of death is denied.

ORDER

Service connection for the cause of the veteran's death is
denied.

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

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

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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.

VA
FORM
JUN
2003
(RS)

4597
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2