judge_norm: S KELLER

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: 0330000
Decision Date: 10/31/03    Archive Date: 11/05/03

DOCKET NO.  99-16 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama

THE ISSUES

1.  Entitlement to a disability rating greater than
30 percent for service-connected residuals of an injury of
the right hand and wrist.

2.  Entitlement to a total disability rating based on
individual unemployability.

REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Esq.

ATTORNEY FOR THE BOARD

C. Hancock, Counsel

REMAND

In September 2002, 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.  Ask the veteran to provide a list (including
dates and locations) of all non-VA health care
providers who have rendered treatment to him for
his right hand and wrist since January 1997.  The
Board is particularly interested in records of
right hand and wrist treatment that the veteran
received from Dr. Stephen E. Werner of Bloomfield
Hand Specialists, P.C. since January 1997 and from
Dr. Kenneth K. Chun at 1695 Woodward Avenue, Suite
105, Bloomfields Hills, Michigan 48302 since
January 1997.  After furnishing the veteran the
appropriate release forms, obtain the complete
clinical records from each health care provider
identified by the veteran that have not been
previously procured and associated with the claims
folder.

2.  Please obtain the veteran's complete clinical
records from the VA Clinic in Birmingham, Alabama
since January 2001.

3.  Following completion of the above development,
make arrangements with the appropriate VA medical
facility for the veteran to be afforded a VA
orthopedic examination to determine the extent of
the service-connected residuals of an injury of his
right hand and wrist.  The claims folder must be
made available to the examiner in conjunction with
the examination.  Any testing deemed necessary,
including x-rays of the veteran's right hand and
wrist, should be performed.

The examiner should obtain from the veteran his
detailed clinical history.  All pertinent right
hand and wrist pathology found on examination to be
associated with the service-connected disability
should be noted in the report of the evaluation.
Specifically, the examiner should discuss the range
of motion of the veteran's right wrist as well as
the extent of any pain and tenderness associated
with the service-connected right hand and wrist
disability (to include a discussion of whether the
veteran's right hand and wrist exhibits weakened
movement, excess fatigability, or incoordination
attributable to the service-connected disability as
well as an opinion as to the degree to which the
veteran's right hand and wrist pain could
significantly limit his functional ability during
flare-ups or on repeated use over a period of
time).  In addition, the examiner should
specifically state whether the veteran has
unfavorable ankylosis of his right wrist in any
degree of palmar flexion or with ulnar or radial
deviation.  Also, the examiner should express an
opinion as to the effect of the service-connected
residuals of an injury of the veteran's right hand
and wrist on his ability to obtain and maintain
gainful occupation.

4.  In addition, make arrangements with
the appropriate VA medical facility for
the veteran to be afforded a VA
psychiatric examination to determine the
extent of his service-connected dysthymic
disorder.  The claims folder must be made
available to the examiner in conjunction
with the examination.  Any testing deemed
necessary should be performed.

The examiner should obtain from the
veteran his detailed clinical history.
All pertinent psychiatric pathology found
on examination to be associated with the
service-connected dysthymic disorder
should be noted in the report of the
evaluation.  Also, the examiner should
express an opinion as to the effect of
the service-connected dysthymic disorder
on the veteran's ability to obtain and
maintain gainful occupation.

5.  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. 8.43 and 38.02.

	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).


series: legacy

judge_norm: J E DAY

disposition: granted

disposition: denied

condition: skin

disposition: remanded

text:
Citation Nr: 0331000
Decision Date: 11/10/03    Archive Date: 11/17/03

DOCKET NO.  99-20 362	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York

THE ISSUES

1.  Entitlement to service connection for coronary artery
disease secondary to posttraumatic stress disorder (PTSD).

2.  Entitlement to an increased rating for residuals of a
gunshot wound of the right leg with injury of muscle group
XI, currently rated as 30 percent disabling.

3.  Entitlement to a compensable rating for residuals of a
fracture of the left fibula.

4.  Entitlement to a higher initial rating for PTSD,
currently rated as 30 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

C. Fetty, Counsel

INTRODUCTION

The veteran had honorable active service from February 1968
to December 1970.  He received a Purple Heart for wounds
suffered in combat.

This appeal arises from an August 1999 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York, that granted service connection for
PTSD and assigned a 30 percent evaluation, denied service
connection for left hip degenerative joint disease, and
denied increased ratings for right leg residuals of gunshot
wound (30 percent) and for residuals of a left fibula
fracture (noncompensable).  The RO subsequently granted
service connection for the left hip and that issue is no
longer before the Board.  In an April 2000 rating decision,
the RO denied service connection for coronary artery disease
secondary to PTSD.  The veteran has appealed to the Board of
Veterans' Appeals (Board) for favorable resolution of these
issues.

In cases such as this where the veteran has appealed the
initial rating assigned after service connection is
established, the Board must consider the initial rating,
and, if indicated, the propriety of a staged rating from the
initial effective date forward.  See Fenderson v. West,
12 Vet. App. 119, 126-7 (1999).  The Board has therefore
recharacterized the appeal for a higher PTSD rating to
reflect the veteran's dissatisfaction with the initial
rating assigned by the RO.

The evidence suggests that the veteran's PTSD and other
service-connected disabilities might preclude employment.
The veteran has not specifically applied for a total
disability rating for compensation purposes based on
individual unemployability (TDIU) and the issue is not
inextricably intertwined with the issue of an increased
rating for PTSD.  It is therefore referred to the RO for
appropriate action.

The issue of secondary service connection for coronary
artery disease will be addressed in the remand portion of
the decision.  Although the Board has addressed the ratings
for the right and left legs below, the issue of a separate
rating for service-connected right leg gunshot wound scars
will be addressed in the remand portion of the decision.

FINDINGS OF FACT

1.  The veteran's PTSD is manifested by impaired judgment,
obsessional features, intrusive memories, sleep
disturbances, depression, anxiety, increased startle
response, irritability, and inability to establish and
maintain effective relationships.

2.  Injury to Muscle Groups XI, XII, and XIII of the right
leg is no more than moderately severe.

3.  A 30 percent rating for the right leg has been in effect
for more than 20 years.

4.  The residuals of left fibula fracture have been
manifested throughout the appeal period by complaint of pain
on weight-bearing and diffuse left calf tenderness; there is
no evidence of bone or muscle deformity, malunion, or
shortening of a long bone.  The effect on function is
equivalent to no more than a slight ankle disability.

CONCLUSIONS OF LAW

1.  The criteria for a 70 percent schedular rating for PTSD
are met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R.
�� 4.1, 4.3, 4.7, 4.10, 4.126, 4.130 Diagnostic Code 9411
(2003).

2.  The criteria for a rating higher than 30 percent for
residuals of a gunshot wound of the right leg (except for
scars) are not met.  38 U.S.C.A. �� 1155, 5107 (West 2002);
38 C.F.R. �� 4.1, 4.3, 4.7, 4.10, 4.55, 4.56, 4.73
Diagnostic Codes 5311, 5312, 5313 (2003).

3.  The criteria for a 10 percent schedular rating for
residuals of a left fibula fracture are met.  38 U.S.C.A.
�� 1155, 5107 (West 2002); 38 C.F.R. �� 4.1, 4.3, 4.7, 4.10,
4.21, 4.40, 4.71a, Diagnostic Code 5262 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA

During the pendency of this appeal, the VCAA was signed into
law.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002); 38 C.F.R. �� 3.102, 3.156(a), 3.159
and 3.326) (2002).  The VCAA and the implementing
regulations are liberalizing and are therefore applicable to
the issues on appeal.  See Karnas v. Derwinski, 1 Vet. App.
308, 312-13 (1991).

The VCAA and the implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim.  The VCAA requires VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary (i.e., to VA) that is necessary to
substantiate the claim.  VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain
on behalf of the claimant.  Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002).

In Karnas, supra, the United States Court of Appeals for
Veterans Claims (hereinafter referred to as the Court) held
that where a law or regulation changes after a claim has
been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version most
favorable to the veteran should and will apply unless
Congress provides otherwise or permits the Secretary to do
otherwise.  The Court has also held that where a Board
decision addresses a question that had not been addressed by
the RO, it must consider whether the claimant has been given
adequate notice of the need to submit evidence or argument
on that question and an opportunity to submit such evidence
and argument and to address that question at a hearing, and,
if not, whether the claimant has been prejudiced thereby.
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

The Board finds that the veteran is not prejudiced by its
consideration of these claims insofar as VA has already met
all notice and duty to assist obligations under the new law,
to include as delineated under the newly promulgated
implementing regulations.

The veteran and his representative have been notified of the
laws and regulations governing the evaluation of PTSD and of
residuals of a right let gunshot wound and a left leg fibula
fracture.  He has, by information letters, rating actions, a
statement of the case and supplemental statements of the
case, been advised of the evidence considered in connection
with his claims, and what evidence that is potentially
probative or not probative of the claims.  38 C.F.R. �
3.159(b)(1), (e).  The RO has attempted to obtain all
pertinent service records, VA medical records, and the
private medical records identified by the veteran.

The Board emphasizes that by letter dated in November 2002,
the RO notified the veteran of the provisions of the VCAA
and its potential impact on his claims, allowing him a one-
year period of additional time in which to present evidence
and/or argument in support of the appeal.  The veteran has
responded to the letter.

In a decision promulgated on September 22, 2003, Paralyzed
Veterans of America v. Secretary of Veterans Affairs, No.
02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the
United States Court of Appeals for the Federal Circuit
(hereinafter referred to as the Court) invalidated a 30-day
response period contained in 38 C.F.R. � 3.159(b)(1) as
inconsistent with 38 U.S.C.� 5103(b)(1).  The Court made a
conclusion similar to the one reached in Disabled Am.
Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339,
1348 (Fed. Cir. 2003) (reviewing a related Board regulation,
38 C.F.R. � 19.9).  The Court found that the 30-day period
provided in � 3.159(b)(1) to respond to a VCAA duty to
notify is misleading and detrimental to claimants whose
claims are prematurely denied short of the statutory one-
year period provided for response.  In this case, in its
letter to the veteran the RO has allowed a full year to
respond to the VCAA notice.  Thus, a remand for this
consideration is not necessary.

II.  Factual Background

A.  PTSD

The veteran's DD-214 reflects service in Vietnam.  In March
1999, the veteran requested service connection for PTSD,
reporting nightmares of combat.

An April 1999 VA mental disorders examination report
reflects a primary Axis I diagnosis of chronic, severe PTSD,
with alcohol problems in remission but nevertheless felt to
be secondary to PTSD.  The veteran reported having held many
jobs since active service, although his present job with the
Post Office had lasted 23 years.  He reported problems with
his superiors at work and having had a failed marriage.  The
examiner noted normal but sometimes loud speech and stated
that the veteran's judgment appeared to be fair.  The
examiner noted on Axis IV that the veteran had obsessional
features involving his PTSD with intrusive memories and
nightmares of war.  The examiner assigned a Global
Assessment of Functioning (GAF) score of 46 (according to
the American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders (hereinafter DSM-IV),
a score of 41 to 50 is indicative of serious symptoms, or
serious difficulty in social, occupational, or school
functioning, i.e., no friends, unable to keep a job).  The
examiner also added that the veteran "has been greatly
affected by his PTSD condition."

In April 1999, the veteran underwent a VA social survey that
noted that he still worked for the Post Office but that he
tended to keep to himself and not develop relationships with
others.  He felt depressed because he shared no common
interests with those with whom he worked.  He reported
startle response to loud noise and having been reprimanded
for untimely work.  He took Wellbutrin, 150 mg, twice per
day.  The surveyor noted that the veteran had no real
friends, either at or outside of work, and concluded by
opining that the veteran suffered from PTSD.

The veteran's spouse had submitted a letter for the VA
social survey in which she stated that the veteran had many
PTSD symptoms, such as nightmares, anxiety, stress,
decreased concentration and memory, and that he was
depressed.

In August 1999, the RO granted service connection for PTSD
and assigned a 30 percent rating under Diagnostic Code 9411.

According to a June 2000 VA psychosocial assessment, the
veteran had avoided attaining a supervisory position and had
avoided making friends because of his PTSD.  His main
problems were anger and rage and ability to concentrate.
The clinical social worker who authored the report felt that
the veteran's health problems were permanently and totally
disabling and also opined that the veteran's PTSD,
dissociative behavior, and lack of concentration would
preclude him from working.

In his September 2000 substantive appeal, the veteran argued
that his labor union protected his Post Office job or else
he would have lost it because of his behavior in the
workplace.  He implied that during his employment he had
intentionally aggravated his superiors.

According to various VA outpatient treatment reports dated
in 2001 and 2002, the veteran continued taking medication
for depression.

According to a September 2002 VA PTSD counseling report, the
veteran had medically retired from the Post Office and had
been taking local VA vocational rehabilitation classes.  The
report notes that the veteran started the counseling program
in October 1999 with poor adjustment ability and poor
working relationships.  The veteran had made gains since
beginning the program; however, his prior counselor had
left.  The current counselor felt that the veteran's social
and family function had improved while distressing thoughts
of Vietnam had diminished.  Anxiety, irritability, and other
symptoms had also diminished considerably.  The examiner
noted that the veteran took Paxil, 60 mg.  The diagnosis was
chronic, mild PTSD.  The GAF score was felt to be 80
[according to DSM-IV, a score of 71 to 80 is indicative of
transient, if any, symptoms that are expectable reactions to
psychosocial stressors resulting in no more than slight
impairment in social, occupational, or school functioning,
i.e., temporarily falling behind in schoolwork.  38 C.F.R.
� 4.125 (2003)]

In January 2003, the RO received a letter from the veteran's
spouse to the effect that the veteran continued to have
considerable anxiety and sleep problems due to PTSD.

The veteran underwent a VA PTSD examination in March 2003.
The examiner reviewed the claims file and the April 1999
PTSD examination report.  The veteran currently took Paxil(r)
for nervousness and Ambien for better sleep.  The veteran
had retired from his Post Office position in June 1999
because of heart and hip problems.  He reported no
suicidal/homicidal ideation but he did continue to have
sleep disturbances.  His judgment appeared to be fair but he
remained quite anxious and overwhelmed by internal distress.
The examiner assigned an Axis I diagnosis of chronic, severe
PTSD and, on Axis IV, noted nightmares almost every other
night.  The examiner assigned a GAF score of 43, noting that
the veteran's interpersonal relationships suffered.

In May 2003, a private psychologist noted increased anxiety,
stress, and irritability and felt that an additional
diagnosis of adjustment reaction with mixed emotional
features was warranted.  The psychologist felt that overall
the veteran's level of functioning had decreased in
effectiveness since 2002 and felt that the GAF should be 65.

B.  Residuals of Gunshot Wound of the Right Leg and of Left
Fibula Fracture (except for scars)

A service medical record (SMR) dated December 8, 1968,
reflects that an AK-47 bullet passed through the veteran's
right calf and thigh.  The wound was debrided at Da Nang and
the veteran was evacuated for additional treatment.  There
was an entrance and an exit wound.  The exit wound was on
the lateral aspect of the right thigh and measured 20 cm by
6 cm.  Thigh muscle protruded from the exit wound.  Primary
closure of the wound was delayed until December 17, 1968.
X-rays of the leg, ankle, and knee showed no other
abnormality.  The final diagnosis was through and through
gunshot wound of the right thigh.

An October 1970 SMR notes complaint of right leg pain with
soft tissue defect of the right calf and muscle spasm.  The
veteran also reported pain in the area of the left fibula
fracture.  An X-ray showed a healed fracture of the upper
third of the left fibula.

A November 1970 SMR reflects that X-rays showed a healed
fracture of the left fibula and a soft tissue defect in the
right calf but no bony involvement.

A December 1970 separation examination report reflects
normal lower extremities except for a 6-inch scar of the
right lower leg.

VA X-rays in March 1971 showed an old fracture of the
proximal third of the left fibula.  A March 1971 VA
examination report reflects two well healed right leg scars.
There was a 5-1/2 inch scar on the posteromedial aspect of the
right leg and a 3-inch scar on the lateral aspect of the
right calf.  The veteran had difficulty with his right calf
while attempting to walk on his tiptoes.  The veteran
reported tenderness in the middle third of the left tibia.
The examiner felt that the right leg symptoms were due to
residuals of a gunshot wound and the left leg symptoms were
residuals of a fibula fracture.

In a May 1971 rating decision, the RO established service
connection for residuals of a shell fragment wound of the
right leg and assigned a 30 percent rating under Diagnostic
Code 5311.  The decision notes that the right leg wound
involved moderately severe injury to muscle groups XI and
XII.  The RO also established service connection for a left
fibula fracture and assigned a noncompensable rating under
Diagnostic Code 5299 on the basis of the veteran's claim of
a stress fracture while in basic training.

In November 1993, the veteran requested that the left leg be
reevaluated.  He reported that it had worsened and that it
had been treated at VA Medical Center Erie and VA Medical
Center Buffalo.  The RO subsequently received VA outpatient
treatment reports from those locations that note complaint
of left leg pain in October 1993.  A January 1994 report
notes left calf pain.

In a January 1995 rating decision, the RO denied a
compensable rating for the left leg, assigned a diagnostic
code of 5299-5262.  The veteran did not appeal that
decision.

In June 1998, the veteran reported that both legs had
worsened and requested increased ratings.

The veteran underwent a VA orthopedic compensation and
pension examination in August 1998.  The veteran reported
that he fell during basic training in March 1968 and
suffered a left fibula fracture.  No cast was ever worn.  He
also reported a gunshot wound in Vietnam with an entry and
exit wound of the right calf for which he was hospitalized
for one month and returned to duty.  During the examination,
the veteran reported almost constant right calf pain since
discharge from active service, although he had not lost any
work because of it.  The examiner noted a 6-inch scar and a
4-inch scar of the right calf.  The scars were well healed,
nontender, and non-adherent to underlying tissue.  Right
foot range of motion and strength were graded as 5/5.  The
examiner noted minimal damage to the calf muscle.

The veteran also reported left calf diffuse tenderness.  The
examiner found no evidence of bone or muscle deformity that
might account for the pain.  The diagnoses were simply
residuals of left fibula fracture and residuals of right
calf gunshot wound.

In an August 1999 rating decision, the RO continued a 30
percent rating under Diagnostic Code 5311 for the right leg
based on a protected rating in effect for over 20 years.
The RO continued the noncompensable rating for the left leg
under Diagnostic Code 5299-5262 based on no evidence of bone
or muscle deformity.

In his substantive appeal, the veteran argued that left and
right calf pain had not been considered.

The veteran underwent a VA orthopedic compensation and
pension examination in July 2000.  The examiner noted a
review of the claims file but also noted that a gunshot
wound to the left leg resulting in a left fibula fracture
and that the veteran had suffered an unrelated right leg
laceration injury that required surgical repair.  The
veteran's gait was normal.  The right leg scar was well
healed.  The relevant diagnoses were lower leg muscle injury
with left fibula fracture and right leg gunshot wound with
damage to muscle group XI.  .

In May 2003, the veteran reported constant pain in his
proximal left fibula area while walking and he reported that
VA had recently issued a wheel chair to aid in extended
walking and standing.

III.  Legal Analysis

Disability evaluations are determined by comparing present
symptomatology with the criteria set forth in VA's Schedule
for Rating Disabilities, which is based on average
impairment in earning capacity.  See 38 U.S.C.A. � 1155
(West 2002); 38 C.F.R. Part 4 (2002).  When a question
arises as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
38 C.F.R. � 4.7.  After careful consideration of the
evidence, any reasonable doubt remaining is resolved in
favor of the veteran.  38 C.F.R. � 4.3.  The veteran's
entire history is reviewed when making disability
evaluations.  38 C.F.R. � 4.1; Schafrath v. Derwinski,
1 Vet. App. 589, 592 (1995).  In cases such as this where
the veteran has appealed the initial rating assigned after
service connection is established, the Board must consider
the initial rating, and, if indicated, the propriety of a
staged rating from the initial effective date forward.
Fenderson, 12 Vet. App. at 126-7.

VA regulations also require that disability evaluations be
based upon the most complete evaluation of the condition
that can be feasibly constructed with interpretation of
examination reports, in light of the whole history, so as to
reflect all elements of disability.  The medical as well as
industrial history is to be considered, and a full
description of the effects of the disability upon ordinary
activity is also required.  38 C.F.R. �� 4.1, 4.2, 4.10,
4.40.

A.  PTSD Rating

When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of
psychiatric symptoms, the length of remissions, and the
veteran's capacity for adjustment during periods of
remission.  The rating agency shall assign an evaluation
based on all the evidence of record that bears on
occupational and social impairment rather than solely on the
examiner's assessment of the level of disability at the
moment of the examination.  38 C.F.R. �  4.126(a) (2003).

When evaluating the level of disability from a mental
disorder, the rating agency will consider the extent of
social impairment, but shall not assign an evaluation solely
on the basis of social impairment.  38 C.F.R. � 4.126(b)
(2003).

Under 38 C.F.R. � 4.130, Diagnostic Code 9411 (2003), PTSD
will be evaluated in accordance with the General Rating
Formula for Mental Disorders.  Under that formula, a 30
percent evaluation is warranted for occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due
to such symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or less often),
chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events).

A 50 percent evaluation is warranted for occupational and
social impairment with reduced reliability and productivity
due to such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short-and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.

A 70 percent evaluation is warranted for occupational and
social impairment with deficiencies in most areas, such as
work, school, family relationships, judgment, thinking or
mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near-continuous panic or depression affecting ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect
of personal appearance and hygiene; difficulty in adapting
to stressful circumstances (including work or a worklike
setting); and inability to establish and maintain effective
relationships.

A 100 percent evaluation is warranted for total occupational
and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent
delusion or hallucination; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
ability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; and memory loss for names of closes
relatives, own occupation, or own name.

The veteran's PTSD has been manifested throughout the appeal
period by impaired judgment, obsessional features, intrusive
memories, sleep disturbances, depression, anxiety, increased
startle response, irritability, and inability to establish
and maintain effective relationships.

Comparing the symptoms attributed to PTSD with the criteria
of the rating schedule, the Board finds that the criteria
for a 70 percent disability rating under Diagnostic Code 941
are more nearly approximated.  The VA compensation and
pension examination reports reflect GAF scores of 43 and 46
whereas a psychologist has assigned GAF scores of 65 and 80.
The lower scores denote deficiencies in most areas that
would result in severe occupational and social impairment.
A June 2000 VA counseling report strongly suggests that PTSD
in itself would likely preclude the veteran from working,
although the veteran did work during the appeal period until
he retired for other health reasons.  Although another PTSD
counselor later assigned a GAF score of 80, this does not
reflect all the evidence that bears on occupational and
social impairment.  Rather, it is an assessment of the level
of disability at the moment.  The Board is reminded that the
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment
of the level of disability at the moment of the examination.
38 C.F.R. � 4.126(a).

Thus, the Board finds that the evidence favors a 70 percent
rating for PTSD, but no more, and it is so granted.

B.  Right Leg Rating (except for scars)

The right leg has been rated 30 percent disabling under
Diagnostic Code 5311 during the entire appeal period.
Diagnostic Code 5311 refers to Muscle Group XI.  The muscles
of Muscle Group XI control plantar flexion of the foot and
toes, stabilization of the arch, and flexion of the knee to
some extent.  The muscles of Muscle Group XII act in
opposition to Muscle Group XI and control dorsiflexion of
the foot and toes, and stabilization of the arch.

The initial RO rating in May 1971 established service
connection for severe injury to Muscle Groups XI and XII;
however, since that time, Muscle Group XII has not been
mentioned in any rating decision.  The SMRs note that the
missile passed through the veteran's right calf and thigh
muscles and specifically reflect that thigh muscle protruded
from the exit wound.  The thigh muscles are included in
Muscle Group XIII.  Thus, the Board will consider Muscle
Groups XI, XII, and XIII in the rating to be assigned for
residuals of a gunshot wound of the right leg.

When rating multiple muscle groups the principles of
combined ratings for muscle injuries must be considered.
See 38 C.F.R. � 4.55 (2003).  A muscle injury rating will
not be combined with a peripheral nerve paralysis rating of
the same body part, unless the injuries affect entirely
different functions.  38 C.F.R. � 4.55(a) (2003).  The
combined evaluation of muscle groups acting upon a single
unankylosed joint must be lower than the evaluation for
unfavorable ankylosis of that joint.  38 C.F.R. � 4.55(d)
(2003).  Where compensable muscle group injuries are in the
same anatomical region but do not act on the same joint, the
evaluation for the most severely injured muscle group will
be increased by one level and used as the combined
evaluation for the affected muscle groups.  38 C.F.R.
� 4.55(e) (2003).  For muscle group injuries in different
anatomical regions that do not act upon ankylosed joints,
each muscle group injury shall be rated separately and the
ratings combined under the provisions of 38 C.F.R. � 4.25.
38 C.F.R. � 4.55(f) (2003).

The Board must determine which of the above-mentioned rules
apply.  The Board notes that the calf and the thigh are in
the same anatomical area, i.e., the leg.  Moreover, calf and
thigh muscles do not act on the same joint, as calf muscles
act primarily on the foot and toes, whereas thigh muscles
act on the knee.  Therefore, 38 C.F.R. � 4.55(e) applies,
which requires that the most severely injured muscle group
be increased by one level and used as the combined
evaluation for all three affected groups.  We next turn to
� 4.56.

According to � 4.56, an open or comminuted fracture with
muscle or tendon damage will be rated as a severe injury of
the muscle group involved, unless for certain locations the
evidence establishes that the muscle damage is minimal.
38 C.F.R. � 4.56(a) (2003).  In this case, because no open
or comminuted fracture has been attributed to the gunshot
wound, this subsection does not apply.

A through-and-through injury with muscle damage shall be
evaluated as no less than a moderate injury for each group
of muscles damaged.  38 C.F.R. � 4.56(b) (2003).  This
section appears to apply to the instant case, as the
evidence establishes a through and through injury with
damage to Muscle Groups XI, XII, and XIII. Thus, the
residuals must be evaluated as no less than a moderate
injury.

The type of injury associated with a moderate muscle
disability is described as being from a through-and-through
or deep penetrating wound of short track from a single
bullet, small shell or shrapnel fragment, without explosive
effect of high velocity missile, residuals of debridement,
or prolonged infection.  History should include evidence of
in-service treatment for the wound, as well as a record of
consistent complaints of symptoms of muscle wounds,
particularly lower threshold of fatigue after average use,
affecting the particular functions controlled by the injured
muscles.  Objective findings should include small or linear
entrance and (if present) exit scars, indicating short track
of missile through muscle tissue, and some loss of deep
fascia or muscle substance or impairment of muscle tonus and
loss of power or lowered threshold of fatigue when compared
to the sound side.  38 C.F.R. � 4.56(d)(1),(2) (2003).
According to 38 C.F.R. � 4.73, Diagnostic Codes 5311, 5312,
and 5313, moderate disability to any of these muscle groups
warrants a 10 percent rating.

The type of injury associated with a moderately severe
muscle disability is described as being from through-and-
through or deep penetrating wounds by a small high-velocity
missile or a large low-velocity missile, with debridement,
prolonged infection, or sloughing of soft parts, and
intermuscular scarring.  History should include prolonged
hospitalization in service for treatment of the wound and
consistent complaints of the cardinal signs and symptoms of
muscle disability, and, if present, evidence of inability to
keep up with work requirements.  Objective findings should
include entrance and (if present) exit scars indicating the
track of the missile through one or more muscle groups.
Tests of strength, endurance, or coordination movements
compared with the corresponding muscles of the uninjured
side demonstrate positive evidence of impairment.  Palpation
of the muscles shows loss of deep fascia or of muscle
substance or soft flabby muscles in the wound area, with
moderate loss of deep fascia, muscle substance, or normal
firm resistance of muscles as compared with the sound side.
38 C.F.R. � 4.56(d)(3) (2003).  According to Diagnostic
Codes 5311, 5312, and 5313, a moderately severe muscle group
injury warrants a 20 percent rating.

The type of injury associated with a severe disability of
muscles includes a through and through or deep penetrating
wound due to high velocity missile, or large or multiple low
velocity missiles, or with a shattering bone fracture or
open comminuted fracture with extensive debridement,
prolonged infection, or sloughing of soft parts,
intermuscular binding and scarring.  The history and
complaint should include cardinal signs and symptoms of
muscle disability (loss of power, weakness, lowered
threshold of fatigue, fatigue-pain, impairment of
coordination, and uncertainty of movement) worse than those
shown for moderately severe muscle injuries, and, if
present, evidence of inability to keep up with work
requirements.  Objective findings show ragged, depressed,
and adherent scars indicating wide damage to muscle groups
in the track of the missile.  Tests of strength, endurance,
or coordinated movements compared with the corresponding
muscles of the uninjured side indicate severe impairment of
function.  Palpation of the muscles shows loss of deep
fascia or of muscle substance or soft flabby muscles in the
wound area.  38 C.F.R. � 4.56(d)(4) (2003).  According to
Diagnostic Codes 5311, 5312, and 5313, a severe disability
of these muscles warrants a 30 percent rating.

For VA rating purposes, the cardinal signs and symptoms of
muscle disability are loss of power, weakness, lowered
threshold of fatigue, fatigue-pain, impairment of
coordination, and uncertainty of movement.  38 C.F.R. �
4.56(c) (2003).  The veteran's chief complaint concerning
the right leg has been pain on use; thus, the Board finds
that fatigue-pain, a cardinal sign of muscle disability, is
shown.  Moreover, the SMRs reflect a through and through or
deep penetrating wound due to high velocity missile,
extensive debridement and prolonged infection, but no
sloughing of soft parts or intermuscular binding and
scarring.  Objective findings do not show ragged, depressed,
and adherent scars indicating wide damage to muscle groups
in the track of the missile.  Tests of strength, endurance,
or coordinated movements compared with the corresponding
muscles of the uninjured side do not indicate severe
impairment of function.  Palpation of the muscles does not
show loss of deep fascia or of muscle substance or soft
flabby muscles in the wound area.  Thus, the Board finds no
more than moderately severe muscle damage to any muscle
group.

Applying the above rules, the Board finds that the
requirements for a single 30 percent rating are met, as the
moderately severe injuries (20 percent) must be increased by
one level and used as the combined evaluation for all the
groups.  The Board also notes that the previously assigned
30 percent rating is protected by 38 C.F.R. � 3.951(b)
(2003) and cannot be lowered, as it has been in effect over
20 years.

There is no evidence that the residual of a right leg
gunshot wound have caused any nerve or vascular disability.
Thus, the Board finds that the  preponderance of the
evidence is against the claim for an increased rating for
the right leg (except for scars) and the benefit of the
doubt doctrine is not for application.  See 38 U.S.C.A.
� 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 58
(1991).  The claim for a rating higher than 30 percent for
residuals of gunshot wound of the right leg is denied
(except for scars).

C.  Left Leg Rating

When applying the rating schedule, it is not expected,
especially with the more fully described grades of
disabilities, that all cases will show all the findings
specified.  Findings sufficiently characteristic to identify
the disease and the disability therefrom, and above all,
coordination of rating and impairment of function will,
however, be expected in all instances.  38 C.F.R. � 4.21
(2003).

Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination and
endurance.  It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all,
of the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion.  Weakness
is as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled.  A little used part of the musculoskeletal system
may be expected to show evidence of disuse, either through
atrophy, the condition of the skin, absence of normal
callosity or the like.  38 C.F.R. � 4.40 (2003).

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the CAVC held
that in evaluating a service-connected disability, the Board
erred in not adequately considering functional loss due to
pain under 38 C.F.R. � 4.40 and functional loss due to
weakness, fatigability, incoordination or pain on movement
of a joint under 38 C.F.R. � 4.45.  The Court also held that
a diagnostic code based on limitation of motion does not
subsume 38 C.F.R. �� 4.40 and 4.45 and that the rule against
pyramiding set forth in 38 C.F.R. � 4.14 does not forbid
consideration of a higher rating based on a greater
limitation of motion due to pain on use, including use
during flare-ups.  The Court remanded the case to the Board
to obtain a medical evaluation that addressed whether pain
significantly limits functional ability during flare-ups or
when the joint is used repeatedly over a period of time.
The Court also held that the examiner should be asked to
determine whether the joint exhibited weakened movement,
excess fatigability or incoordination; if feasible, these
determinations were to be expressed in terms of additional
range-of-motion loss due to any weakened movement, excess
fatigability or incoordination.

Malunion of the tibia and fibula of either lower extremity
warrants a 10 percent evaluation when the disability results
in slight knee or ankle disability.  A 20 percent evaluation
requires that the malunion produces moderate knee or ankle
disability.  A 30 percent evaluation requires that the
malunion produce marked knee or ankle disability.  38 C.F.R.
� 4.71a, Diagnostic Code 5262 (2003).

The residuals of left fibula fracture have been manifested
throughout the appeal period by complaint of pain on weight-
bearing and diffuse left calf tenderness; there is no
evidence of bone or muscle deformity, malunion, or
shortening of a long bone.

Comparing the symptoms attributed to residuals of a left
fibula fracture with the criteria of the rating schedule,
the Board finds that the criteria for a compensable rating
under Diagnostic Code 5262 are more nearly approximated.  No
osseous abnormality is shown.  No shortening of a long bone
is shown.  The veteran's chief complaint is left calf pain
on weight bearing.  38 C.F.R. � 4.40 states that functional
loss may be due to pain and a part that is painful on use
must be regarded as seriously disabled (emphasis added).
Moreover, in DeLuca, the CAVC appears to authorize a
compensable rating for musculoskeletal pain on use even
where the rating schedule itself does not warrant one.
Therefore, the Board will resolve any remaining doubt in
favor of the veteran and will grant a 10 percent rating for
painful residuals of a left fibula fracture, equivalent to
no more than slight ankle disability.

D.  Extraschedular Consideration

The Board will defer consideration of an extraschedular
rating under 38 C.F.R. � 3.321(b) (2003) until the matter of
a TDIU and other matters addressed in the remand are
adjudicated by the RO.

ORDER

1.  A 70 percent evaluation for PTSD is granted, subject to
the laws and regulations concerning the payment of monetary
benefits.

2.  A rating greater than 30 percent for residuals of a
gunshot wound of the right leg is denied (except for scars).

3.  A 10 percent evaluation for residuals of a left fibula
fracture is granted, subject to the laws and regulations
concerning the payment of monetary benefits.

REMAND

The veteran has claimed service connection for coronary
artery disease secondary to PTSD.  He has submitted a
medical opinion tending to link the two; however, the
opinion is ambiguous as to whether PTSD directly caused
coronary artery disease or whether PTSD is felt to be an
aggravating factor.  Thus, further information would be
helpful to properly adjudicate this claim.

According to a VA Form 9 submitted in September 2000, the
veteran also submitted a study that tends to link PTSD with
coronary artery disease and a business card of someone
associated with that study.  He requested that the RO
consider those items in connection with his service
connection claim.  Neither of these items appears to be
associated with the claims file.  During the remand, the RO
should attempt to locate and associate them with the claims
file.  Following that, the claims file should be forwarded
to an appropriate physician for an opinion addressing
whether it is at least as likely as not that the veteran's
PTSD has either caused or aggravated his coronary artery
disease.  The veteran may be re-examined for this purpose if
necessary.

During the appeal period, the schedule for rating scars was
revised.  Thus, prior to considering a separate rating for
any service-connected scars, the former and the revised
rating schedule for scars should be supplied to the veteran
and he should be offered an opportunity to offer further
evidence or argument on the matter.  Following that
development, the veteran should be offered an appropriate
examination to determine the nature, the exact dimensions,
and the severity of all service-connected scars.

Accordingly, this case is remanded to the RO for the
following:

1.  The RO should request that the
veteran furnish information as to any
additional relevant treatment received
since August 2003.  The RO should then
take all necessary steps to obtain
copies of those records.  The RO should
also attempt to locate the study
submitted by the veteran that tends to
link PTSD with coronary artery disease
and associate it with the claims file.
The RO should advise the veteran if any
evidence sought is not obtained.

2.  The RO must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, as well
as 38 U.S.C.A. �� 5102, 5103, and 5103A,
(West 2002), and any other applicable
legal precedent.

3.  The claims file should be forwarded
to an appropriate specialist to
determine whether there is a causal
connection between the veteran's
coronary artery disease and his PTSD.
The claims file must be made available
to the examiner for review and the
examiner is asked to note such review in
the report.  The examiner is asked to
answer the following: Is it at least as
likely as not (that is, a probability of
50 percent or better) that the veteran's
PTSD has caused his coronary artery
disease?  If that answer is "no", then
the examiner is asked to answer the
following: Is it at least as likely as
not that the veteran's PTSD has
aggravated, that is made worse or made
harder to treat, the veteran's coronary
artery disease?  Any findings should be
supported by a complete rationale and
should be reported in a legible report.

4.  The veteran must be furnished a copy
of the former and the revised version of
the rating schedule for skin scars and
he must be afforded an opportunity to
submit additional evidence or argument
on the matter.  The service-connected
skin scars must be adjudicated to
determine whether a separate rating or
ratings is/are warranted under either
the prior or the current version of the
rating schedule.  This includes left hip
postoperative scars as well as right leg
gunshot wound scars.

5.  Following the above development,
after all indicated corrective action
has been completed, the RO should again
review the record and re-adjudicate the
claims.  If the benefits sought remain
denied, the veteran and his
representative should be furnished a
supplemental statement of the case
(SSOC) and given an 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 veteran need take no action
unless otherwise notified.  The veteran has the right to
submit additional evidence and argument on the matter the
Board has remanded.  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. 8.43
and 38.02.

______________________________________________
	J. E. Day
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

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

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

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

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

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

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

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

VA
FORM
JUN
2003
(RS)

4597
Page
1
CONTINUED

Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also
plan to appeal this decision to the Court, you must file your motion
within 120 days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating
why you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the
Board places no time limit on filing a motion to vacate, and you can do
this at any time. However, if you also plan to appeal this decision to the
Court, you must file your motion within 120 days from the date of this
decision.

How do I file a motion to revise the Board's decision on the basis of
clear and unmistakable error? You can file a motion asking that the Board
revise this decision if you believe that the decision is based on "clear
and unmistakable error" (CUE).  Send this motion to the address above for
the Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to
reopen your claim.  However, to be successful in reopening your claim, you
must submit new and material evidence to that office. See 38 C.F.R.
3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to
the Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have
indicated their availability to represent appellants.  This information is
also provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent
within 1 year of a final BVA decision, then the attorney or agent is
allowed to charge you a fee for representing you before VA in most
situations.  An attorney can also charge you for representing you before
the Court.  VA cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

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judge_norm: U R POWELL

benefit: pension

text:
Citation Nr: 0332000
Decision Date: 11/18/03    Archive Date: 11/25/03

DOCKET NO.  02-03 789	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky

THE ISSUE

Entitlement to waiver of recovery of an overpayment of VA
pension benefits in the original amount of $3,152.00.

REPRESENTATION

Appellant represented by:	Kentucky Department of
Veterans Affairs

ATTORNEY FOR THE BOARD

Eric S. Leboff

INTRODUCTION

The veteran had active service from December 1942 until March
1944.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) from a December 2001 decision of the Committee on
Waivers and Compromises of the Department of Veterans Affairs
(VA), Regional Office (RO) in Louisville, Kentucky.

The Board notes that, in the veteran's substantive appeal
received by the RO in March 2002, a hearing before a Member
of the Board at the RO was requested.  Such a hearing was
scheduled for September 2003, but the veteran failed to
report for that appointment.

FINDINGS OF FACT

1.  In an income-net worth and employment statement submitted
in May 2000, in conjunction with a claim for entitlement to
nonservice-connected pension, the veteran listed his monthly
income as $354.00, with zero income from wages.

2.  In a letter dated in June 2000, the RO informed the
veteran of an award of nonservice-connected pension, in the
amount of $283.00 per month, effective April 1, 2000, based
on countable annual income; that payments must be adjusted
whenever this income changes; that he must notify VA
immediately of any change in income; and that failure to
properly tell VA about income changes may create an
overpayment.

3.  In an Improved Pension Eligibility Verification Report
submitted in January 2001, the veteran reported a monthly
income of $930.22, including $450.22 in monthly income from
Girl Scouts, with $1,042.80 in unreimbursed medical expenses.

4.  A VA report of telephone contact with the veteran, dated
March 5, 2001, indicated the veteran reported he was
currently receiving $472 per month from the Girl Scouts, and
that he had been receiving monthly income from the Girl
Scouts since 1996.

5.  By a letter dated March 7, 2001, the RO informed the
veteran that his pension payments had been terminated because
his income for the year 2000 of $10,815.00 exceeded the
applicable limit of $8,665.00.

6.  In an Improved Pension Eligibility Verification Report
received by the RO on March 30, 2001, the veteran indicated a
change in his income from the Girl Scouts, beginning January
2001, to $258.25.

7.  A June 2001 Financial Status Report listed the veteran's
total monthly net income as $738.00, and his total monthly
expenses as $780.45.

8.  Documents received by the RO on July 17, 2001,
established that the veteran was earning $245.92 per pay
period in his position at the Wilderness Road Girl Scout
Council.

9.  A Financial Status Report received in September 2001
listed the veteran's total monthly net income as $933.00, and
his total monthly expenses as $891.45.

CONCLUSIONS OF LAW

1.  There has been no showing of fraud, misrepresentation, or
bad faith on the part of the veteran in the creation of the
overpayment.  38 U.S.C.A. � 5302 (West 2002); 38 C.F.R. ��
1.962, 1.963, 1.965 (2002).

2.  Recovery of an overpayment of pension benefits in the
original amount of $3,152.00 would not be against the
principles of equity and good conscience.  38 U.S.C.A. � 5302
(West 2002); 38 C.F.R. �� 1.963(a), 1.965 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initial matters

The VCAA

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
�� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)).
Considering the nature of this case, which involves a request
for a waiver of overpayment of VA benefits, the provisions of
the VCAA are inapplicable to the instant appeal.  The Board
believes this conclusion to be consistent with the recent
holding of the United States Court of Appeals for Veterans
Claims in Barger v. Principi, 16 Vet. App. 132 (2002)
(holding that the duties specified in the VCAA are not
applicable to requests for a waiver of overpayment).

Relevant law and regulations

In order for the Board to determine whether an overpayment
was properly created, it must be established that the veteran
was legally entitled to the benefits in question, or if there
was no legal entitlement, then it must be shown that VA was
solely responsible for the veteran being erroneously paid
benefits.  Sole administrative error connotes that the
veteran-beneficiary neither had knowledge of nor should have
been aware of the erroneous award.  Further, neither the
veteran's actions or his failure to act must have contributed
to payment pursuant to the erroneous award.  38 U.S.C.A. �
5112(b)(9)(10); 38 C.F.R. � 3.500(b)(2).

Recovery of overpayment of any benefits made under laws
administered by VA shall be waived if there is no indication
of fraud, misrepresentation, or bad faith on the part of the
person or persons having an interest in obtaining the waiver.
38 U.S.C.A. � 5302(c) (West 2002); 38 C.F.R. � 1.963(a).
"Bad faith" is defined in VA regulations as "unfair or
deceptive dealing by one who seeks to gain thereby at
another's expense.  Thus, a debtor's conduct in connection
with a debt arising from participation in a VA
benefits/services program exhibits bad faith if such conduct,
although not undertaken with actual fraudulent intent, is
undertaken with intent to seek an unfair advantage, with
knowledge of the likely consequences, and results in a loss
to the government." 38 C.F.R. � 1.965(b).

The phrase "bad faith" is also defined in the Veterans
Benefits Administration (VBA) CIRCULAR 20-90-5, dated
February 12, 1990, as a willful intention on the part of the
claimant to seek an unfair advantage or to neglect or refuse
to fulfill some duty or contractual obligation."  However, a
recent decision of the Court has invalidated the use of the
above-cited phrase as an appropriate basis for a bad faith
determination.  See Richards v. Brown, 9 Vet. App. 255
(1996).  In Richards, the Court found that the operative
language in 38 C.F.R. � 1.965(b)(2) limits bad faith to cases
in which there is an intent to seek an unfair advantage.
Thus, the Court held that the use of the phrase neglect or
refuse to fulfill some duty or contractual obligation found
in the circular was inconsistent with the regulation and
cannot be an appropriate basis for a bad faith determination.

If there is no indication of fraud, misrepresentation, or bad
faith in the record, the indebtedness shall be waived if the
recovery of the overpayment would be against equity and good
conscience.  38 U.S.C.A. � 5301(a); 38 C.F.R. �� 1.962, 1.965
(2002).

Consideration of equity and good conscience is intended to
reach a result that is not unduly favorable or adverse to
either the claimant or the Government.  It is intended to
achieve a result that is fair.  38 C.F.R. � 1.965(a) (2002).
Six non-exclusive elements are set forth in the regulations
that must be addressed to determine whether the facts and
circumstances in a particular case dictate that collection of
an overpayment would be against equity and good conscience.
The following six elements, which are not intended to be all
inclusive consist of: (1) the fault of the debtor; (2)
balancing of faults between the debtor and VA; (3) undue
hardship of collection on the debtor; (4) a defeat of the
purpose of an existing benefit to the veteran; (5) the unjust
enrichment of the veteran; and (6) whether the veteran
changed positions to his/her detriment in reliance upon a
granted VA benefit.  38 U.S.C.A. � 5302; 38 C.F.R. �
1.965(a).  Each of the six elements must be addressed.  See
Ridings v. Brown, 6 Vet. App. 544, 546 (1994).

Factual background

In an income-net worth and employment statement submitted in
May 2000 in conjunction with a claim of entitlement to
nonservice-connected pension, the veteran listed his monthly
income as $354.00.

In a letter dated in June 2000, the RO informed the veteran
of an award of nonservice-connected pension, in the amount of
$283.00 per month, effective April 1, 2000.  He was advised
that that award was based upon the financial information
provided by the veteran in the May 2000 income-net worth and
employment statement, that payments must be adjusted whenever
this income changes, that he must notify VA immediately of
any change in income, and that failure to properly tell VA
about income changes may create an overpayment.

In January 2001, the veteran submitted an Improved Pension
Eligibility Verification Report.  That document noted a
monthly income of $930.22.  Specifically, the veteran
revealed the following monthly income:  $450.22 from the Girl
Scouts; $421.00 from Social Security; and $59.00 from other
retirement sources.

A VA report of telephone contact with the veteran, dated
March 5, 2001, indicated the veteran reported he was
currently receiving $472 per month from the Girl Scouts, and
that he had been receiving monthly income from the Girl
Scouts since 1996.

By letter dated March 7, 2001, the RO informed the veteran
that, based on the latest financial figures that he provided,
his income exceeded the maximum allowable amount of $8,665.00
for receipt of nonservice-connected pension.  As a
consequence, his pension payments had been terminated.  The
veteran was further informed that he had been overpaid and
that he would soon be apprised of the amount that he owed VA.
The letter reflected the income counted by VA for the year
2000 was $5664.00 from earnings, $5,052.00 from Social
Security, and $708 from retirement, with $1042.00 in medical
expenses.

In an Improved Pension Eligibility Verification Report
received by the RO on March 30, 2001, the veteran indicated a
change in his monthly income from the Girl Scouts, beginning
January 2001 to $258.25.  Upon receiving that information,
the RO contacted the veteran by letter dated June 28, 2001.
The letter noted the discrepancies between the income
reported in the most recent forms and that reported earlier.
The veteran was instructed to send documentation verifying
his bi-weekly or monthly pay from the Girl Scouts, in the
form of a copy of his 2000 income tax return, or
documentation from the Girl Scouts.

Also in June 2001, the veteran submitted a Financial Status
Report.  That document listed the veteran's total monthly net
income as $738.00, and his total monthly expenses as $780.45.

In response to the June 28, 2001 letter from the RO, the
veteran submitted information regarding his salary from the
Girl Scouts, as well as a copy of his 2000 tax return.
Documents received by the RO on July 17, 2001, established
that the veteran was earning $245.92 per pay period in his
position at the Wilderness Road Girl Scout Council, and had
reported annual income from wages for the year 2000 on his
Federal tax return of $5,902.00.

In September 2001, the veteran submitted another Financial
Status Report that listed the veteran's total monthly net
income as $933.00, and his total monthly expenses as $891.45.

Analysis

In the present case, it is not disputed that there was an
overpayment of VA pension benefits.  The United States Court
of Appeals for Veterans Claims (the Court) has held that
before adjudicating a waiver application, the lawfulness of a
debt must first be decided.  See Schaper v. Derwinski, 1 Vet.
App. 430, 434-35 (1991).  In the instant case, neither the
appellant nor her representative have challenged the creation
of the indebtedness.  At no time did he argue that there was
administrative error on the part of VA in the creation of
this debt.

The Board has reviewed the indebtedness and finds that its
creation was not invalid.  The evidence of record confirms
the appellant's failure to fully report all income sources.
Specifically, income received from the Girl Scouts was not
listed by the veteran in his initial May 2000 income and net
worth statement.  The amount of the indebtedness appears to
mirror the amount of the overpayment of pension benefits by
VA due to the appellant's failure to supply such information
for the year 2000.  Accordingly, the Board finds that the
charged indebtedness in the amount of $3,152.00. was validly
created.

Having established the validity of the debt in question, the
next question for consideration is whether there is any
indication of fraud, misrepresentation, or bad faith on the
part of the appellant in the creation of the overpayment.

In the present case, the veteran, in his May 2000 financial
report, failed to inform VA of salary received from the Girl
Scouts.  That situation is not tantamount to fraud or
misrepresentation.  However, it must be considered whether
his actions constitute "bad faith."  The determining factor
is whether any given conduct, although not undertaken with
actual fraudulent intent, is undertaken with intent to seek
an unfair advantage, with knowledge of the likely
consequences, and results in a loss to the government.  While
it is conceivable that the veteran's failure to inform VA of
all income sources was motivated by an intent to seek an
unfair advantage, the Board fails to find bad faith here.
That conclusion is based upon Richards v. Brown, 9 Vet. App.
255 (1996), in which it was found that the neglect to fulfill
some duty or contractual obligation was not an appropriate
basis for a bad faith determination.  Here, the veteran was
contractually obligated to inform VA of changes in income.
Thus, based on Richards, his failure to do so is insufficient
to establish bad faith.

As the evidence does not establish fraud, misrepresentation,
or bad faith on the part of the veteran, he is entitled to a
waiver of his indebtedness if the evidence demonstrates that
recovery of the overpayment would be against equity and good
conscience.  For the reasons discussed below, the Board finds
that repayment of the veteran's indebtedness would not
violate principles of equity and good conscience, and
accordingly the veteran's claim is denied.

Under 38 C.F.R. � 1.965(a), six elements are set forth for
considering whether repayment of indebtedness would violate
principles of equity and good conscience.
The first two "equity and good conscience" elements to
consider are the fault of the debtor, and balancing the fault
of the debtor and VA.  As previously discussed, the veteran
was informed by letter in June 2000 that he would receive
disability pension benefits effective April 2000.  That
correspondence clearly indicated the veteran's countable
income used in arriving at a monthly benefit amount of
$283.00.  The RO informed the veteran it had considered
$4890.00 in annual social security income and $696.00 in
other annual retirement income.  The award was based on $0
earnings.  Moreover, it was explained that the award of
benefits would need to be adjusted to reflect income changes.
The veteran was explicitly instructed to notify VA
immediately if income was received from any additional
sources, or there was a change in income.  Despite receiving
such notice, the veteran did not inform VA of his Girl Scouts
income until January 2001.  Thus, it is clear that there is
significant fault on the part of the veteran.  Moreover, the
evidence does not demonstrate any fault on the part of VA.
Thus, considerations of fault support the conclusion that the
appellant's request for a waiver of overpayment should be
denied.

The third element to be addressed in considering equity and
good conscience is "undue hardship," described as "[w]hether
collection would deprive debtor or family of basic
necessities."  38 C.F.R. �1.965(a)(3).  The most recent
financial status report of record, submitted in September
2001, indicated a total monthly net income as $933.00, and
his total monthly expenses as $891.45.  As the veteran's
monthly household income exceeds his expenses, the Board
finds that no undue hardship would result from repayment of
the debt.

The fourth element to be addressed is whether recovery of the
overpayment would defeat the purpose for which the benefits
were intended.  Such has not been demonstrated here.  The
purpose of the award of pension benefits was to supplement
the veteran's income, once the criteria for such nonservice-
connected pension were met.  Such pension payments serve
their intended purpose only during the period of established
entitlement.  As the veteran received income from other
sources which caused his annual countable income to exceed
the eligibility limit for the year 2000, such payment
entitlement ceased.  Thus, recovery of the overpayment would
not be self-defeating but would rather affirm the intended
purpose of the pension award as understood by all parties
involved.

The fifth element to be considered is "unjust enrichment,"
which means that failure to make restitution would result in
unfair gain.  It stands to reason, that, since repayment of
the debt would not result in undue hardship, a waiver of the
indebtedness here would result in unfair gain.  The veteran
received monies to which he was not entitled, and in fairness
such monies should be remitted where the financial resources
are available to do so, as here.

The sixth element to be considered is whether reliance on VA
benefits resulted in the veteran relinquishing a valuable
right or incurring a legal obligation.  The veteran has not
claimed that he relinquished any right or incurred any legal
obligation or that he relied upon VA to his detriment, nor do
the facts show such.  Thus, this sixth element does not
support the appellant's request for a waiver of overpayment.

The record does not demonstrate any additional factors which
should be considered in adjudicating the appellant's claim
for a waiver of the indebtedness, and the appellant has
identified no other such factors.

In conclusion, the veteran's debt owed to VA is valid.  As
the evidence does not show fraud, misrepresentation, or bad
faith, he is not precluded from a waiver of overpayment of
such indebtedness.  However, with the balancing of fault
between the VA and debtor, the evidence does not demonstrate
that repayment in this case would run counter to principles
of equity and good conscience.  As such, the Board finds that
no waiver is appropriate.  As the preponderance of the
evidence is against the claim, the benefit of the doubt rule
is not applicable.  See 38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 54-56 (1990).

ORDER

Waiver of recovery of an overpayment of VA pension benefits
in the original amount of $3,152.00 is denied.

____________________________________________
	U. R. POWELL
	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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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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