judge_norm: J M DALEY

condition: back

text:
Citation Nr: 0414000
Decision Date: 06/01/04    Archive Date: 06/10/04

DOCKET NO.  96-51 957	)	DATE
	)
	)

On certification from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan

THE ISSUES

1.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
residuals of a back injury.

2.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
residuals of typhoid fever.

3.  Entitlement to service connection for residuals of a
spinal tap.

REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

L. J. Driever, Counsel

INTRODUCTION

The veteran had active service from June 1955 to April 1957.
The issues stated on the first page of this decision come
before the Board of Veterans' Appeals (Board) on appeal from
an August 1996 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In the August 1996 rating decision, the RO also denied
reopening the veteran's claims of entitlement to service
connection for residuals of a back injury and residuals of
typhoid fever, and, denied entitlement to service connection
for residuals of a spinal tap as not well grounded.  In a
statement dated in September 1996 and accepted as a notice of
disagreement with respect to the issues listed on the first
page of this decision, the veteran argued that VA
"erroneously" denied his claims of entitlement to service
connection for a back disorder, typhoid fever and residuals
of a spinal tap.  In the statement of the case issued in
October 1996, the RO then included the issue of whether clear
and unmistakable error (CUE) existed in the April 1978 rating
decision, and all subsequent decisions, denying entitlement
to service connection for a back disability, residuals of a
spinal tap and residuals of typhoid fever.  That issue was
also included in the supplemental statements of the case
issued in September 1997 and May 2003.

From the Board's review of the record, the propriety and
extent of appellate jurisdiction over any CUE questions
remains unclear.  First, it does not appear that there is any
final decision of record on the issue of entitlement to
service connection for residuals of a spinal tap.  See Best
v. Brown, 10 Vet. App. 322, 325 (1997) (holding, inter alia,
that an appellant cannot raise a CUE claim with respect to an
RO decision that is not final.)

Second, a review of the claims file reflects that the past
prior denials include final decisions by the Board.  Revision
of a Board decision based on CUE must be raised by motion and
must meet certain requirements in order to qualify for
review.  See 38 C.F.R. � 20.1404(a) (2003).

Third, neither the veteran nor his representative has at any
point identified a specific rating decision or Board decision
in which error is claimed, nor have they identified any error
of fact or law as forming the basis for revision of any prior
decision based on CUE.  In fact, it appears that the
veteran's use of the word "erroneously" was instead
intended as an expression of disagreement with the August
1996 rating decision that is, in fact, on appeal.  Here the
Board emphasizes that "CUE is a very specific and rare kind
of 'error.'", and that,

If a claimant-appellant wishes to
reasonably raise clear and unmistakable
error there must be some degree of
specificity as to what the alleged error
is and, unless it is the kind of
error...that, if true, would be clear and
unmistakable error on its face,
persuasive reasons must be given as to
why the result would have been manifestly
different but for the alleged error.

Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).  In this case
neither the veteran nor his representative offered such
argument or details regarding a CUE claim and did not even
reference the issue until subsequent to the statement of the
case and supplemental statements of the case, at which time
it was included in presentations submitted by the veteran's
representative in February and March 2004.

The Board notes that any CUE issue are not, in any case,
inextricably intertwined with the materiality issues decided
in the decision herein below.  See, e.g., Kellar v. Brown,
6 Vet. App. 157 (1994).  Thus, at this time, and to avoid
otherwise delaying the identified notification and
development actions requested in the REMAND, the question as
to whether any valid CUE claim has been raised and/or timely
and adequately perfected for appeal to the Board is referred
to the RO for appropriate clarification.  Such action should
include identifying whether, in fact, the veteran intends to
pursue an appeal of the issue of whether there is CUE in any
prior RO rating decision, and, if so, having the veteran
identify the decision(s) in question and the basis/es for the
CUE claim(s), after which the RO should take appropriate
adjudicative action to ensure that the veteran is provided
with an explanation as to the reasons and bases for any
determination as to CUE in each rating decision identified
and then is properly advised as to the procedures and time
limits in which to appeal any unfavorable determination.

The veteran is also hereby advised that if he desires to
pursue revision of any prior Board decision based on CUE he
must take the appropriate steps consistent with
38 C.F.R. � 20.1404(a) (2003) before such matter will be
reviewed.

The Board REMANDS the issue of entitlement to service
connection for residuals of a spinal tap to the RO via the
Appeals Management Center in Washington, DC.  VA will notify
the veteran and his representative if they are required to
take further action with regard to that claim.

FINDINGS OF FACT

1.  VA provided the veteran adequate notice and assistance
with regard to his claims to reopen.

2.  The RO last denied the veteran entitlement to service
connection for residuals of a back injury in an unappealed
rating decision dated in May 1989.

3.  Some of the evidence received since May 1989 is neither
cumulative nor redundant, but the additionally-received
evidence does not bear directly and substantially upon the
specific matter under consideration, and by itself or in
connection with the evidence previously assembled, it is not
so significant that it must be considered in order to fairly
decide the merits of the claim.

4.  The Board last denied the veteran entitlement to service
connection for residuals of typhoid fever in an unappealed
decision dated in August 1981.

5.  Some of the evidence received since August 1981 is
neither cumulative, nor redundant, but it does not bear
directly and substantially upon the specific matter under
consideration, and by itself or in connection with the
evidence previously assembled, it is not so significant that
it must be considered in order to fairly decide the merits of
the claim.

CONCLUSIONS OF LAW

1.  The RO's May 1989 decision denying entitlement to service
connection for residuals of a back injury is final.  38
U.S.C.A. � 7105 (West 2002); 38 C.F.R. �� 3.104, 19.129,
19.192 (1988).

2.  New and material evidence has not been received to reopen
a claim of entitlement to service connection for residuals of
a back injury.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. �
3.156 (2001).

3.  The Board's August 1981 decision denying entitlement to
service connection for residuals of typhoid fever is final.
38 U.S.C.A. �� 7103, 7104 (West 2002); 38 C.F.R. � 19.104
(1981).

4.  New and material evidence has not been received to reopen
the claim of entitlement to service connection for residuals
of typhoid fever.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R.
� 3.156 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA).  See Pub.
L. No. 106-475, 114 Stat. 2096 (2000), codified at 38
U.S.C.A. �� 5102, 5103, 5103A, 5107 (West 2002), eliminated
the concept of a well-grounded claim and redefined the
obligations of VA with respect to its duties to notify and
assist a claimant.  In August 2001, VA issued regulations to
implement the VCAA.  66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a)
(2003)).

The VCAA and its 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.  They also require 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 that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
part, 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.

The United States Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure strict compliance with
the provisions of the VCAA.  See Quartuccio v. Principi, 16
Vet. App. 183 (2002).  For the reasons noted below, the Board
finds that VA has strictly complied with the notification and
assistance provisions of the VCAA such that the Board's
decision to proceed in adjudicating the veteran's claims to
reopen does not prejudice the veteran in the disposition of
those claims.  See Bernard v. Brown, 4 Vet. App. 384, 392-94
(1993).

A.  Duty to Notify

First, in several letters dated October 2002, the RO
acknowledged the veteran's claims, informed the veteran of
its expanded duties to notify and assist, explained that it
was developing his claims pursuant to the latter duty,
requested the veteran to submit any pertinent evidence he had
to support his claims, including medical evidence linking
current disabilities to service, and indicated that it would
assist the veteran in obtaining and developing all pertinent
evidence provided he identified the source or sources of the
evidence.  The RO explained that it was required to make
reasonable efforts to assist the veteran in obtaining all
pertinent evidence, including medical records, employment
records, and records from federal agencies, but that
ultimately, it was the veteran's responsibility to ensure the
RO's receipt of all pertinent information.  The RO requested
the veteran to identify the names and addresses of
individuals who had relevant records that needed to be
secured, and the approximate time frame covered by the
records and to sign the enclosed forms authorizing release of
his treatment records.  The RO told the veteran that, if he
wished, he could obtain these records on his own initiative
and send them to the RO.  The RO indicated that it had
already requested or received records from a variety of VA
and private treatment providers.  The RO concluded that it
would provide the veteran a medical examination or secure a
medical opinion if it thought that such an examination or
opinion was necessary to make a decision in the case.

The Court's decision in Pelegrini v. Principi, 17 Vet. App.
412 (2004) held, in part, that a VCAA notice, as required by
38 U.S.C. � 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits.  In this case, the
initial AOJ decision was made prior to November 9, 2000, the
date the VCAA was enacted.  VA believes that the Court's
decision in Pelegrini is incorrect as it applies to cases
where the initial AOJ decision was made prior to the
enactment of the VCAA and is pursuing further judicial review
on this matter.  However, assuming solely for the sake of
argument and without conceding the correctness of Pelegrini,
the Board finds that any defect with respect to the VCAA
notice requirement in this case was harmless error for the
reasons specified below.

While the Court in Pelegrini did not address whether, and, if
so, how, the Secretary can properly cure a defect in the
timing of the notice, it did leave open the possibility that
a notice error of this kind may be non-prejudicial to a
claimant.

The Court in Pelegrini found, on the one hand, that the
failure to provide the notice until after a claimant has
already received an initial unfavorable RO determination,
i.e., a denial of the claim, would largely nullify the
purpose of the notice and, as such, prejudice the claimant by
forcing him or her to overcome an adverse decision, as well
as substantially impair the orderly sequence of claims
development and adjudication.  Pelegrini, 17 Vet. App. at
422.  On the other hand, the Court acknowledged that the
Secretary could show that the lack of a pre-AOJ decision
notice was not prejudicial to the appellant.  Id.

In light of these two findings on prejudice, the Board finds
that the Court in Pelegrini has left open the possibility of
a notice error being found to be non-prejudicial to a
claimant.  To find otherwise would require the Board to
remand every case for the purpose of having the AOJ provide a
pre-initial adjudication notice.  The only way the AOJ could
provide such a notice, however, would be to vacate all prior
adjudications, as well as to nullify the notice of
disagreement and substantive appeal that were filed by the
appellant to perfect the appeal to the Board.  This would be
an absurd result, and as such it is not a reasonable
construction of section 5103(a).  There is no basis for
concluding that harmful error occurs simply because a
claimant receives VCAA notice after an initial adverse
adjudication.

Moreover, while strictly following the express holding in
Pelegrini would require the entire rating process to be
reinitiated when notice was not provided prior to the first
agency adjudication, this could not have been the intention
of the Court.  Otherwise it would not have taken "due
account of the rule of prejudicial error" in reviewing the
Board's decision.  See 38 U.S.C. � 7261(b)(2) (West 2002);
see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004)
(There is no implicit exemption for the notice requirements
contained in 38 U.S.C. � 5103(a) from the general statutory
command set forth in section 7261(b)(2) that the Veterans
Claims Court shall "take due account of the rule of
prejudicial error.").

In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C. � 7104(a) (West 2002), all questions
in a matter which under 38 U.S.C. � 511(a) are subject to
decision by the Secretary shall be subject to one review on
appeal to the Secretary, and such final decisions are made by
the Board.  Because the Board makes the final decision on
behalf of the Secretary with respect to claims for veterans
benefits, it is entirely appropriate for the Board to
consider whether the failure to provide a pre-AOJ initial
adjudication constitutes harmless error, especially since an
AOJ determination that is "affirmed" by the Board is
subsumed by the appellate decision and becomes the single and
sole decision of the Secretary in the matter under
consideration.  See 38 C.F.R. � 20.1104 (2003).  There simply
is no "adverse determination," as discussed by the Court in
Pelegrini, for the appellant to overcome.  Pelegrini, 17 Vet.
App. at 422.  Similarly, a claimant is not compelled under
38 U.S.C. � 5108 to proffer new and material evidence simply
because an AOJ decision is appealed to the Board.  Rather, it
is only after a decision of either the AOJ or the Board
becomes final that a claimant has to surmount the reopening
hurdle.

All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. � 20.1102 (2003) (harmless error).

Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided the veteran in October 2002 was not
sent prior to the first AOJ adjudication of the claim, it was
sent prior to the transfer and certification of the veteran's
appeal to the Board, and the content of the notice fully
complied with the requirements of 38 U.S.C. � 5103(a) and
38 C.F.R. � 3.159(b) (2003).

Specifically, this notice informed the veteran of the
evidence and information needed to support his claims.  It
also indicated that VA would assist the veteran in obtaining
all outstanding evidence, but that in the meantime, the
veteran should submit any pertinent evidence he had to
support his claims.  See Pelegrini, 17 Vet. App. at 422
(holding that VCAA notice consistent with 38 U.S.C. � 5103(a)
and 38 C.F.R. � 3.159(b) must: (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in his possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim).

Moreover, in addition to the notice sent in October 2002, the
RO sent the veteran other documents with additional
information regarding his claims.  The RO received the
veteran's claims to reopen in May 1996.  Thereafter, in a
rating decision dated August 1996, the RO denied those
claims.  As previously indicated, after the rating decision
was promulgated, the RO provided the veteran notice regarding
what information and evidence was needed to substantiate his
claims, as well as what information and evidence must be
submitted by the veteran, and what information and evidence
would be obtained by VA.  See 38 U.S.C.A. �� 5102, 5103 (West
2002).  In addition, in the aforementioned letters and rating
decision, a statement of the case issued in October 1996, and
supplemental statements of the case issued in September 1997
and May 2003, the RO notified the veteran of the reasons for
which his claims had been denied, the evidence it had
considered in denying that claims, and the evidence the
veteran still needed to submit to substantiate his claims,
and provided him the regulations pertinent to his claims,
including those governing VA's duties to notify and assist
and involving claims to reopen filed prior to August 29,
2001.

B.  Duty to Assist

VA has made reasonable efforts to identify and obtain
relevant records in support of the veteran's claims.  38
U.S.C.A.� 5103A (a), (b) and (c) (West 2002).  In particular,
the RO endeavored to secure and associate with the claims
file all evidence the veteran identified as being pertinent
to his claims to reopen, including his service medical
records, VA and private treatment records, and information
from the Social Security Administration.  Until the veteran
submits evidence sufficient to reopen his claims, VA is not
required to conduct medical inquiry in an effort to
substantiate those claims.  38 U.S.C.A.� 5103A (d).

Under the facts of this case, "the record has been fully
developed," and "it is difficult to discern what additional
guidance VA could have provided to the veteran regarding what
further evidence he should submit to substantiate his
claims."  Conway v. Principi, 353 F.3d 1369 (Fed. Cir.
2004); see also Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc) (observing that the VCAA is a reason to
remand many, many claims, but it is not an excuse to remand
all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994);
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both
observing circumstances as to when a remand would not result
in any significant benefit to the claimant); Bernard v.
Brown, 4 Vet. App. 384, 393-94 (1993) (holding that when the
Board addresses in its decision a question that has not been
addressed by the RO, it must consider whether the appellant
has been given adequate notice to respond and, if not,
whether he has been prejudiced thereby).  The Board thus
finds that VA has done everything reasonably possible to
notify and assist the veteran and that the record is ready
for appellate review.

II.  Analysis of Claims

A claim that is the subject of a prior final denial may be
reopened if new and material evidence is received with
respect to that claim.  Once a claim is reopened, the
adjudicator must review it on a de novo basis, with
consideration given to all of the evidence of record.
38 U.S.C.A. � 5108 (West 2002); Evans v. Brown, 9 Vet. App.
273 (1996).  For claims filed prior to August 29, 2001, as in
this case, new and material evidence means evidence not
previously submitted to agency decisionmakers 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.  38 C.F.R. �
3.156(a) (2001).

For claims filed on or after August 29, 2001, new evidence
means existing evidence not previously submitted to agency
decisionmakers.  Material evidence means existing evidence
that, by itself or when considered with the previous evidence
of record, relates to an unestablished fact necessary to
substantiate the claim.  New and material evidence can be
neither cumulative, nor redundant of the evidence of record
at the time of the last prior final denial of the claim
sought to be reopened, and must raise a reasonable
possibility of substantiating the claim.  See
66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified at 38
C.F.R. � 3.156(a) (2003)).  This amendment does not apply to
the veteran's appeal as he filed his claim prior to August
29, 2001.

The evidence that is considered to determine whether new and
material evidence has been received is the evidence
associated with the claims file since the last final
disallowance of the appellant's claim on any basis.  Evans, 9
Vet. App. at 273.  This evidence is presumed credible for the
purposes of reopening a appellant's claim, unless it is
inherently false or untrue or, if it is in the nature of a
statement or other assertion, it is beyond the competence of
the person making the assertion.  Duran v. Brown, 7 Vet. App.
216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992).

A.  Residuals - Back Injury

The RO and the Board previously denied the veteran's claim of
entitlement to service connection for residuals of a back
injury on multiple occasions.  Specifically, the RO denied
the claim in rating decisions dated from January 1978 and
March 1978, and the Board affirmed the latter decision in
August 1981.  The RO again denied the veteran's claim in
rating decisions dated June 1982, May 1983, and March 1984,
and the Board affirmed the latter decision in August 1985.
The RO again denied the veteran's claim in November 1987,
April 1988, and May 1989.  The RO and the Board based its
multiple denials on the following findings:
(1) Although the veteran suffered a back injury in service,
residuals of that injury were acute and transitory and
resolved without permanent residual disability;
(2) The veteran did not seek back treatment from the time of
his discharge in April 1957 to 1970; and (3) There is no
medical evidence of record linking any back disorder
diagnosed since 1971 to the in-service back injury.

The RO based its last denial on the finding that the veteran
had not submitted new and material evidence to reopen his
claim.  The RO specifically found that, although newly
submitted medical records reflected recent back treatment and
indicated that the veteran had reported an in-service back
injury, they did not establish that the current back disorder
was incurred in or aggravated by the veteran's military
service.  The RO considered statements of the veteran's
representative and VA treatment records in support of the
veteran's claim.  In a letter dated June 1989, the RO
notified the veteran of the rating decision and of his
appellate rights with regard to that decision, but the
veteran did not appeal the decision to the Board.  The May
1989 decision is thus final.  38 U.S.C.A. � 7105 (West 2002);
38 C.F.R. �� 3.104, 19.129, 19.192 (1988).

The veteran attempted to reopen his claim for service
connection for residuals of a back injury by written
statement received in May 1996.  The evidence that has been
associated with the claims file since the RO's May 1989
rating decision, or last final disallowance, includes: (1)
written statements of the veteran and his representative; (2)
treatment records from Erlanger Medical Center; (3) service
medical and personnel records; (4) the veteran's hearing
testimony; (5) a written statement of the veteran's pastor;
(6) treatment records from Plaza Physical Therapy; (7)
treatment records from Siskin Rehabilitation Group, P.C.; (8)
treatment records from McLaurin Neurodiagnostics, P.C.; (9) a
report of Kenneth H. Kurjan, D.O.; (10) a report of Andrew
Cykiert, D.O.; (11) treatment records from Frederick K.
Lewerenz, D.O.; (12) treatment records from the VA Medical
Center at Allen Park; (13) treatment records from University
of Michigan Hospital; (14) prescriptions signed by Ilija
Urosev, M.D.; and (15) a report from Northeast Community
Hospital.

With the exception of the service medical and personnel
records and some of the written statements of the veteran,
the Board finds that the newly-received evidence is new as it
is neither cumulative nor redundant of information previously
considered.  The Board does not find that this evidence is
material, however, as it does not bear directly and
substantially upon the specific matter under consideration,
and by itself or in connection with evidence previously
assembled, it is not so significant that it must be
considered to decide fairly the merits of the claim.

Specifically, the newly submitted written statements of the
veteran and his representative and pastor and the veteran's
hearing testimony merely confirm that the in-service back
injury occurred and that the veteran has received treatment
for back complaints since his discharge from service.  Both
of these facts were known at the time of the last final
disallowance.  The statements and testimony also restate the
veteran's previously expressed belief that the current back
complaints are related to the in-service injury.  These
statements and testimony, alone, are insufficient to prove a
nexus between such complaints and service.  Espiritu v.
Derwinski, 2 Vet. App. 492, 494-5 (1992) (holding that
laypersons are not competent to offer medical opinions).  In
Hickson v. West, 11 Vet App (1998), the Court held that lay
assertions of medical causation cannot suffice as new and
material evidence to reopen a claim.

The newly submitted medical documents, specifically, the
treatment records from Plaza Physical Therapy, Siskin
Rehabilitation Group, P.C., McLaurin Neurodiagnostics, P.C.,
Dr. Lewerenz, and the University of Michigan Hospital, merely
show that, since March 1990, the veteran has continued to
complain of, and receive treatment for, variously diagnosed
back disorders.  While the veteran was being treated,
however, no medical professional linked the veteran's current
back disorder to the in-service back injury.  The absence of
such a link formed the basis of the RO's last denial of the
veteran's claim for service connection for residuals of a
back injury and absent competent evidence speaking to such,
reopening is not warranted.

Having determined that new and material evidence has not been
submitted, the Board may not reopen the veteran's previously
denied claim of entitlement to service connection for
residuals of a back injury.

B.  Residual - Typhoid Fever

The RO previously denied the veteran's claim of entitlement
to service connection for residuals of typhoid fever in a
rating decision dated January 1978.  The Board affirmed this
decision in August 1981.  The Board based its denial on the
following findings: (1) although the veteran was treated for
suspected typhoid fever in service, the fever was acute and
transitory and resolved without permanent residual
disability; and (2) since discharge, the veteran has not been
treated for residuals of that fever.  In denying the
veteran's claim, the Board considered the veteran's service
medical and personnel records, written statements of the
veteran, his representative, and multiple acquaintances, the
veteran's hearing testimony, VA treatment records, a VA
examination report, and treatment records from Henry Ford
Hospital, The Grace Hospital, Memorial Hospital, and Sidney
Goldman, M.D.  The Board notified the veteran of the August
1981 decision and of his appellate rights with regard to the
decision.

When the Board disallows a claim, the disallowance becomes
final unless the Chairman determines that reconsideration is
warranted, or another exception to finality applies.  38
U.S.C.A. �� 7103, 7104 (West 2002); 38 C.F.R. � 19.104
(1981).  The veteran in this case did not file a motion for
reconsideration of the Board's August 1981 decision, nor did
he appeal the decision to the Court.  The Board's August 1981
decision is thus final.

The veteran attempted to reopen his claim for service
connection for residuals of typhoid fever by written
statement received in May 1996.  The evidence that has been
associated with the claims file since the Board last denied
this claim in August 1981 includes: (1) written statements of
the veteran, his representative, multiple acquaintances and a
potential employer; (2) treatment records from Loranger
Chiropractic Clinic, P.C.; (3) treatment records from
Providence Hospital;
(4) treatment records from Wayne County Social Services; (5)
treatment records from Michigan Department of Social
Services; (6) treatment records from Erlanger Medical Center;
(7) service medical and personnel records; (8) the veteran's
hearing testimony; (9) a written statement of the veteran's
pastor; (10) treatment records from Plaza Physical Therapy;
(11) treatment records from Siskin Rehabilitation Group,
P.C.; (12) treatment records from McLaurin Neurodiagnostics,
P.C.; (13) a report of Kenneth H. Kurjan, D.O.; (14) a report
of Andrew Cykiert, D.O.;
(15) treatment records from Frederick K. Lewerenz, D.O.; (16)
treatment records from the VA Medical Center at Allen Park;
(17) treatment records from University of Michigan Hospital;
(18) prescriptions signed by Ilija Urosev, M.D.; and (19) a
report from Northeast Community Hospital.

With the exception of the service medical and personnel
records and some of the written statements of the veteran,
the Board finds that this evidence is new as it is neither
cumulative, nor redundant.  The Board does not find that this
evidence is material, however, as it does not bear directly
and substantially upon the specific matter under
consideration, and by itself or in connection with evidence
previously assembled, it is not so significant that it must
be considered to decide fairly the merits of the claim.

The newly submitted written statements of the veteran and his
representative and the veteran's testimony confirm that the
veteran was treated for suspected typhoid fever in service.
This fact was known at the time of the last final
disallowance.  The statements and testimony also reflect the
veteran's belief that the medication he took for the fever
caused him to develop bleeding, either from the rectum or in
the stomach.  The statements of the veteran's acquaintances
attest to the character of the veteran such that the Board
has no reason to doubt his credibility.  Again, however,
these statements and testimony, alone, are insufficient to
prove a nexus between a current disability and service,
Espiritu, 2 Vet. App. at 494-5, and thus insufficient to
reopen the claim, see Hickson, supra.

All of the newly submitted medical documents merely show
that, since the Board last denied the veteran's claim, he has
continued to complain of, and receive treatment for,
variously diagnosed medical disorders.  However, while the
veteran was being treated, no medical professional linked any
of those disorders to the in-service suspected typhoid fever
or to the medication taken to control that fever.  The
absence of such a link formed the basis of the Board's last
denial of the veteran's claim for service connection for
residuals of typhoid fever.  As stated above, absent
competent evidence speaking to such relationship, reopening
is not warranted.

Having determined that new and material evidence has not been
submitted, the Board may not reopen the veteran's previously
denied claim of entitlement to service connection for
residuals of typhoid fever.

ORDER

New and material evidence not having been received, the
veteran's claim of entitlement to service connection for
residuals of a back injury is denied.

New and material evidence not having been received, the
veteran's claim of entitlement to service connection for
residuals of typhoid fever is denied.

REMAND

The veteran seeks service connection for residuals of a
spinal tap that he underwent in service.  He asserts that
these residuals include numbness and pain of the lower
extremities, and occasionally, paralysis from the waist down
to the lower extremities.  For the reason that follows,
additional development under the VCAA is necessary before the
Board can decide this claim.

For instance, according to testimony the veteran presented
March 6, 1997, at a hearing held at the RO before a hearing
officer, there is relevant evidence that is outstanding and
needs to be secured.  Allegedly, in October 1996, the veteran
sought treatment for residuals of his spinal tap at a VA
Medical Center in Georgia (the transcriber questioned the
name of the town).  See Transcript at 20.  Records of this
treatment are not in the claims file.  The RO should thus
secure them on remand.  First, however, the RO should contact
the veteran and seek more specific information on the
treatment, including the name of the town in Georgia where
the VA facility is located.

In addition, under 38 U.S.C.A. � 5103A (West 2002), VA's duty
to assist includes providing the claimant a medical
examination or obtaining a medical opinion when such an
examination is necessary.  In this case, service medical
records confirm that the veteran underwent a spinal tap
during service and post-service medical records establish
that the veteran has complained of, and received treatment
for, problems associated with his lower extremities.  To
date, however, no physician has addressed whether such
problems are related to the in-service spinal tap.  Given
this fact, an examination is necessary on remand.  In
affording the veteran such an examination, the RO should
ensure that the examiner reviews the entire claims file, and
based upon that review and a thorough evaluation of the
veteran, determines whether the veteran has any residuals of
the in-service spinal tap.

Accordingly, this case is REMANDED for the following:

1.  The RO should contact the veteran and
request him to identify the location of
the VA facility where, in October 1996, he
last received treatment for residuals of
his in-service spinal tap.  The RO should
then request, obtain and associate with
the claims file records of the veteran's
treatment at that facility, as well as any
other treatment records identified by the
veteran.  If the records are unavailable,
VA should note this fact in writing in the
record.

2.  Thereafter, the RO should afford the
veteran a VA examination to determine
whether the veteran has residuals of his
in-service spinal tap.  VA should forward
the claims file to the examiner for review
and ask the examiner to confirm in his
written report that he conducted such a
review.  Following a thorough evaluation,
during which all indicated tests are
performed, the examiner should identify
all currently manifested residuals of the
in-service spinal tap, with appropriate
diagnoses.

3.  The RO should then review the claims
file and ensure that all notification and
development action required by the VCAA
and its implementing regulations, is
completed.  Such action should include
informing the veteran of the evidence
needed to support his claim, including
medical evidence diagnosing residuals of
the in-service spinal tap, and explaining
to him whether he is responsible for
submitting such evidence or whether VA
will obtain and associate such evidence
with the claims file.  The RO should also
request the veteran to submit to VA any
evidence in his possession pertinent to
his claim.  The RO should afford the
veteran an opportunity to respond to this
notice by submitting evidence or
information or by identifying evidence to
be obtained and then take appropriate
follow-up steps to assist the veteran in
obtaining all identified evidence.

4.  Once all development is completed,
the RO should re-adjudicate the veteran's
claim based on a consideration of all of
the evidence of record.  If the RO denies
the benefit sought on appeal, it should
provide the veteran and his
representative a supplemental statement
of the case and an opportunity to respond
thereto.

Thereafter, subject to current appellate procedure, VA should
return this case to the Board for further consideration, if
in order.  By this REMAND, the Board intimates no opinion as
to the ultimate disposition of the appeal.  No action is
required of the veteran unless he receives further notice.
He does, however, have the right to submit additional
evidence and argument on the matter the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).

The law requires that this claim be afforded the RO's
expeditious treatment.  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) (providing that all claims
that are remanded by the Board or by the Court for additional
development or other appropriate action must be handled
expeditiously); see also VBA's Adjudication Procedure Manual,
M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing
the ROs to provide expeditious handling of all cases that
have been remanded by the Board and the Court).

______________________________________________
	J. M. Daley
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

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

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

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

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

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

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

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

VA
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CONTINUED

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

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

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

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

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

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

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

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

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

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

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

VA
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series: legacy

judge_norm: KEITH W ALLEN

disposition: denied

condition: tinnitus

text:
Citation Nr: 0415000
Decision Date: 06/10/04    Archive Date: 06/23/04

DOCKET NO.  02-19 009	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania

THE ISSUES

1.  Entitlement to service connection for bilateral hearing
loss.

2.  Entitlement to service connection for tinnitus.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Associate Counsel

INTRODUCTION

The veteran had active service from June 1949 to September
1955.

This case comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from a January 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania, which denied the veteran's claims
of entitlement to service connection for bilateral hearing
loss and tinnitus.

FINDINGS OF FACT

1.  The veteran was notified of the evidence needed to
substantiate his claims and apprised of whose
responsibility-his or VA's, it was for obtaining the
supporting evidence, and all relevant evidence necessary for
an equitable disposition of his appeal has been obtained.

2.  There is no persuasive medical nexus evidence of record
indicating the veteran developed bilateral hearing loss
during or as a result of his service in the military.

3.  There is no persuasive medical nexus evidence of record
indicating the veteran had tinnitus during service or that it
is a result of his service in the military.

CONCLUSIONS OF LAW

1.  The veteran's bilateral hearing loss was not incurred or
aggravated during his active military service.  38 U.S.C.A.
�� 101, 1110, 1131, 5103, 5103A, 5107 (West 2002);
38 C.F.R. �� 3.102, 3.159, 3.303, 3.304, 3.306, 3.655 (2003).

2.  The veteran's tinnitus also was not incurred or
aggravated during his active military service.  38 U.S.C.A.
�� 101, 1110, 1131, 5103, 5103A, 5107 (West 2002);
38 C.F.R. �� 3.102, 3.159, 3.303, 3.304, 3.306, 3.655 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As a preliminary matter, on November 9, 2000, the Veterans
Claims Assistance Act of 2000 (VCAA) became law.  The VCAA
potentially applies to all claims for VA benefits and
provides, among other things, that VA shall make reasonable
efforts to notify a claimant of the evidence necessary to
substantiate a claim for benefits under laws administered by
VA.  The VCAA also requires VA to assist a claimant in
obtaining that evidence.  See 38 U.S.C.A. �� 5103, 5103A
(West 2002); 38 C.F.R. � 3.159 (2003).

First, VA has a duty under the VCAA to notify the veteran
of any information and evidence needed to substantiate and
complete his claims.  The January 2002 rating decision
appealed and September 2002 statement of the case notified
him of the evidence considered and the pertinent laws and
regulations.  The RO indicated that it would review the
information of record and determine what additional
information was needed to process his claims.  In addition, a
December 2001 letter and the statement of the case included
the criteria for granting service connection.  Both documents
provided information regarding other regulations pertaining
to his claims.  Likewise, the December 2001 letter and the
September 2002 statement of the case, notified him of the
provisions of the VCAA, the kind of information needed from
him, and what he could do to help his claims, as well as VA's
responsibilities in obtaining evidence.  See, e.g., Charles
v. Principi, 16 Vet. App. 370, 373-74 (2002).

While, in the December 2001 letter, the RO requested that the
veteran identify and/or submit any supporting evidence within
30 days, the letter also informed him that he had up to one
year from the date of that letter to submit additional
evidence.  And more than one year has passed since that
December 2001 VCAA letter.  See also the 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.A. � 5103(b)(3)).
This new Act clarifies that VA may indeed make a decision on
a claim before expiration of the one-year period following a
VCAA notice, thereby effectively overturning the holding in a
recent Federal Circuit case.  See Paralyzed Veterans of
America (PVA) v. Secretary of Veterans Affairs, 345 F.3d 1334
(Fed. Cir. 2003); see also 38 U.S.C.A.� 5103(b)(1)(West
2002).

Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claims.  In this
regard, the veteran's service medical records and private
medical records have been obtained.  In addition, he was
afforded the opportunity to submit additional evidence in
support of his claims.  But he and his representative have
not made the Board aware of any additional evidence that
should be obtained prior to appellate review.  So the Board
finds that the duty to assist has been satisfied and the case
is ready for appellate review.

The December 2001 letter apprising the veteran of the VCAA
was sent prior to adjudicating his claims for service
connection in January 2002.  So there was due process
compliance with the holding and mandated sequence of events
specified in a recent precedent decision.  See Pelegrini v.
Principi, 17 Vet. App. 412 (2004).  In that decision, the
court held, among other things, that VCAA notice must be
provided to a claimant before an initial unfavorable decision
by the agency of original jurisdiction (AOJ) on the claim.
Id.  The AOJ in this case is the RO in Philadelphia, and the
RO did just that.  Not only did the RO provide the VCAA
notice before initially deciding the claims, as required by
Pelegrini, but the VCAA notice also was sent prior to the
transfer and certification of the veteran's case to the
Board.  And the content of the notice fully complied with the
requirements of 38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b).
After the notice was provided, and additional evidence was
obtained in response, the case was adjudicated.  The veteran
was provided every opportunity to submit evidence and
argument in support of his claims, and to respond to his VCAA
notice.  Consequently, the Board is satisfied that the
requirements under the VCAA have been met.  See Bernard v.
Brown, 4 Vet. App. 384, 392-94 (1993).  See also VAOPGCPREC
16-92 (July 24, 1992).

A veteran is entitled to service connection for a disability
resulting from a disease or injury incurred or aggravated in
the line of duty while in the active military, naval, or air
service.  See 38 U.S.C.A. �� 1110, 1131;
38 C.F.R. � 3.303(a).  In addition, service connection also
is permissible for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes the disease was incurred in service.
38 C.F.R. � 3.303(d).

If, however, there is no evidence of a chronic condition
during service, then a showing of continuity of
symptomatology after service is required to support the
claim.  See 38 C.F.R. � 3.303(b).  Evidence of a chronic
condition must be medical, unless it relates to a condition
to which lay observation is competent.  See Savage v. Gober,
10 Vet. App. 488, 495-498 (1997).  If service connection is
established by continuity of symptomatology, there must be
medical evidence that relates a current condition to that
symptomatology.  Id.

When a veteran seeks service connection for a disability, due
consideration shall be given to the supporting evidence in
light of the places, types, and circumstances of service, as
evidenced by service records, the official history of each
organization in which he served, his military records, and
all pertinent medical and lay evidence.  See 38 U.S.C.A. �
1154(a); 38 C.F.R. � 3.303(a).

The pertinent evidence of record consists of the veteran's
service personnel records, service medical records, and
private medical records.

The veteran's service personnel records, especially his DD
Form 214, indicate that his military occupational specialty
(MOS) was equivalent to an electrician's apprentice.

A June 1949 Physical Examination report states that the
veteran's ears were normal and that his hearing was 15 out of
15 bilaterally.

A July 1949 Report of Medical History indicates that the
veteran denied experiencing ear trouble and "running ears."

An October 1952 Report of Physical Examination for purposes
of reenlistment states that clinical evaluations of the
veteran's head, ear canals, and eardrums were normal.
Hearing testing was 15 out of 15 bilaterally for both whisper
voice and spoken voice.

In September 1955, physical examination of the veteran was
not requested or required.

An October 2001 letter from M. A. Olenginski, D.O., indicates
the veteran had complained of hearing loss and tinnitus since
1950.  He said, at that time, he was exposed to loud noise
from a 5-inch cannon located within 10 feet of his left ear.
He also reported that he was in the ceremonial guard of the
Navy, wherein he was exposed to rifle shots 2 to 3 times per
day, without ear protection.  Objective physical examination
of his ears revealed clear, intact, and mildly retracted
tympanic membranes (eardrums), without erythema or otorrhea
of the ear canals.  Intranasal examination showed a modest
deviation of the nasal septum toward the right side, but
without purulence or polyposis.  His oropharynx mucosa was
pink, without ulcerative or mass lesion.  Audiogram testing
revealed a moderate to severe bilateral sensorineural hearing
loss, with the left side worse than right.  His right ear
speech discrimination score was 88 percent at 75 decibels and
his left ear speech discrimination score was 65 percent at 80
decibels.  Tympanogram testing revealed mild negative
pressure bilaterally.  Dr. Olenginski opined that the veteran
had a "moderate to severe bilateral sensorineural hearing
loss which appear[ed] to be related to acoustic trauma."
Dr. Olenginski also opined that the veteran should seek a
hearing aid evaluation, as the degree of his hearing loss
would interfere with his activities.

According to 38 C.F.R. � 3.385, impaired hearing will be
considered to be a disability when the auditory threshold in
any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
is 40 decibels or greater; or when the auditory thresholds
for at least three of the frequencies 500, 1000, 2000, 3000,
or 4000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent.  See also Hensley v. Brown, 5 Vet. App. 155, 159
(1993) ("[� 3.385] operates to establish when a measured
hearing loss is . . . a 'disability' for which compensation
may be paid, provided that the requirements for service
connection are otherwise met . . . ").  In Hensley, the
Court indicated a veteran need not have met the requirements
of this regulation while in service, only presently.  See
Hensley, 5 Vet. App. at 158-59.  See also Ledford v.
Derwinski, 3 Vet. App. 87, 89 (1992).

The Board concedes that the October 2001 records from Dr.
Olenginski indicate the veteran currently meets the
requirements of 38 C.F.R. � 3.385 for both ears, as Dr.
Olenginski's letter states the veteran's speech
discrimination scores were 88 percent for the right ear and
65 percent for the left ear.  But the veteran's service
personnel records do not indicate that he had hazardous noise
exposure while in the military, despite his contentions to
the contrary.  And his service medical records do not contain
a diagnosis or other indication of hearing loss or evidence
of acoustic trauma or an ear disorder.  Likewise, the October
2001 private medical records fail to show any evidence of a
history of ear disease or trauma, other than a history of
acoustic trauma as reported by the veteran, himself.  See,
e.g., LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare
transcription of lay history, unenhanced by any additional
medical comment, does not constitute competent medical
evidence).  Further, while the Board acknowledges
Dr. Olenginski's opinion that the veteran's bilateral hearing
loss is likely due to acoustic trauma, there simply is no
objective indication of the supposed precipitating event
(i.e., acoustic trauma) in service.  And absent probative
evidence of the precipitating event, there is no means of
linking the current hearing loss to that purported event
except by speculating.  Indeed, since there is no objective
indication of acoustic trauma in service, Dr. Olenginski
appears to have blindly accepted the veteran's own
unsubstantiated assertion of this and history as fact.  See,
e.g., Reonal v. Brown, 5 Vet. App. 458, 494-95 (1993) (the
presumption of credibility is not found to "arise" or apply
to a statement of a physician based upon an inaccurate
factual premise or history as related by the veteran).
Accordingly, absent persuasive evidence of acoustic trauma in
service, in the manner alleged or otherwise, a causal
relationship etiologically linking the current bilateral
hearing loss to service has not been established because the
preponderance of the evidence is unfavorable.  Boyer v. West,
210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking
disability benefits must establish . . . the existence of a
disability [and] a connection between the veteran's service
and the disability . . .").

In addition, the Board finds that the veteran is not entitled
to service connection for tinnitus, either, as the record
likewise does not contain probative evidence indicating he
has tinnitus that was incurred during his active military
service.  See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1998) ("Congress specifically limits entitlement to
service-connected disease or injury to cases where such
incidents have resulted in a disability.").  His service
medical records are entirely negative for complaints (e.g.,
symptoms, etc.), treatment, or a diagnosis of tinnitus.
It is also noteworthy that there is no evidence that he has
ever sought treatment for tinnitus and that he does not
allege any such treatment.  Similarly, there is no current
medical evidence containing a diagnosis of tinnitus, to
confirm he has this condition of ringing in his ears.
Consequently, absent medical evidence of current disability,
much less a causal relationship to his service in the
military, service connection cannot be granted because the
preponderance of the evidence is unfavorable.  See Brammer at
225 ("In the absence of proof of a present disability there
can be no valid claim.").  See, too, Alemany v. Brown, 9
Vet. App. 518, 519 (1996).

The Board also notes that the RO attempted to assist the
veteran in determining whether he has bilateral hearing loss
or tinnitus as a result of his service in the military, by
requesting additional post-service medical evidence.
However, he did not respond to the RO's request for more
information.  See Wood v. Derwinski, 1 Vet. App. 190, 193
(1991) ("The duty to assist is not always a one-way street.
If a veteran wants help, he cannot passively wait for it in
those circumstances where he may or should have information
that is essential in obtaining the putative evidence.").

Absent this additional medical evidence, which very well may
have established a more definitive, probative, link to
service, the claims for hearing loss and tinnitus must be
adjudicated based on the available evidence of record.
Cf. 38 C.F.R. � 3.655, discussing this type of situation in
the context of a failure to report for a VA medical
examination needed to decide a claim.  This is akin to the
situation at hand, where the RO requested-but unfortunately
did not receive-additional medical evidence substantiating
the claims.

While an accurate determination of etiology is not a
condition precedent to granting service connection, nor is
definite etiology or obvious etiology, there must at least be
a sufficiently definitive opinion on etiology to rise above
the level of pure equivocality.  See Alemany v. Brown, 9 Vet.
App. 518, 519 (1996); Winsett v. West, 11 Vet. App. 420, 424
(1998).  And it is completely permissible for the Board
to discount the probative value of a medical opinion
supportive of a claim where, as here, the offering physician
fails to discuss relevant documented events-in this
particular case, which by all accounts simply did not occur.
See Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Black v.
Brown, 5 Vet. App. 177, 180 (1993).  See also Owens v. Brown,
7 Vet. App. 429 (1995); Swann v. Brown, 5 Vet. App. 229
(1993).

Since the veteran is a layman, he simply does not have the
necessary medical training and/or expertise to determine the
cause of his hearing loss and tinnitus.  See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992).  See, too, Savage
v. Gober 10 Vet. App. at 495-498, indicating that, even in
situations of continuity of symptomatology after service,
there still must be medical evidence relating the current
conditions at issue to that symptomatology.  Id.  Because of
this, his allegations, alone, have no probative value without
medical evidence substantiating them.

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.

____________________________________________
	KEITH W. ALLEN
	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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disposition: remanded

text:
Citation Nr: 0416000
Decision Date: 06/21/04    Archive Date: 06/30/04

DOCKET NO.  03-00 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUE

1.  Entitlement to service connection for bilateral hearing
loss disability.

2.  Entitlement to service connection for a bilateral heel
disability.

3.  Entitlement to service connection for a back disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

C. Moore, Associate Counsel

INTRODUCTION

The veteran had active service February 1976 to February
1980.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a September 2001 rating decision of the
Regional Office (RO) that denied the veteran's claims for
entitlement to service connection for bilateral hearing loss
disability, a bilateral heel disability, and a back
disability.

In a statement received in January 2001, the veteran appears
to raise the issue of entitlement to service connection for
tinnitus.  This matter has not been adjudicated by the RO,
and has not been developed for appellate consideration.  It
is referred to the RO for appropriate action.

FINDING OF FACT

Current bilateral hearing loss disability for VA purposes has
not been shown by competent (medical) evidence of record.

CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in, or
aggravated by, active service.  38 U.S.C.A. �� 1110, 5107
(West 2002); 38 C.F.R. �� 3.102, 3.303 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

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, 5106, 5107, 5126 (West 2002)).
This law eliminates the concept of a well-grounded claim, and
redefines the obligations of the Department of Veterans
Affairs (VA) with respect to the duties to notify and to
assist claimants in the development of their claims.  First,
the VA has a duty to notify the appellant and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim for VA
benefits, as well as the development responsibilities of the
claimant and of the VA.  VCAA, � 3(a), 114 Stat. 2096, 2096-
97 (2000).  See 38 U.S.C.A. �� 5102 and 5103 (West 2002).  VA
will also request that the claimant provide any evidence in
their possession that pertains to the claim.  38 C.F.R.
� 3.159(b) (2003).  Second, the VA has a duty to assist the
appellant in obtaining evidence necessary to substantiate the
claim.  VCAA, � 3(a), 114 Stat. 2096, 2097-98 (2000).  See 38
U.S.C.A. � 5103A (2002).

Notice

With respect to notice, a February 2001 VA letter to the
veteran informed him of the evidence necessary to
substantiate his claim, as well as his and VA's development
responsibilities.  As such, VA's duty to notify has been met.
See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
The Board observes that recent legislation authorizes the VA
to make a decision prior to the expiration of the one-year
VCAA notice period.  See Veterans Benefits Act of 2003, Pub.
L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003).

The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412
(2004), held, in part, that a VCAA notice, as required by
38 U.S.C. � 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits.  In the present case,
because the VCAA notice was provided to the appellant prior
to the initial AOJ adjudication denying the claim, the timing
of the notice does comply with the express requirements of
the law as found by the Court in Pelegrini.

The Court in Pelegrini also held, in part, that a VCAA notice
consistent with 38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b)
must:  (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim."  This new "fourth element" of the notice
requirement comes from the language of 38 C.F.R.
� 3.159(b)(1).  See VAOPGCPREC 01-2004.  The Board has found
that the appellant was provided every opportunity to identify
and submit evidence in support of his claim to reopen.
Indeed, in a letter issued in January 2003, the VA requested
that the veteran send additional evidence regarding his
appeal to the Board.

Duty to assist

With regard to the duty to assist, the record contains the
veteran's service medical records and private medical
records.  The veteran has been afforded the opportunity for a
personal hearing on appeal.  The Board has carefully reviewed
the veteran's statements and concludes that he has not
identified any further evidence not already of record.  The
Board has also perused the medical records for references to
additional treatment reports not of record, but has found
nothing to suggest that there is any outstanding evidence
with respect to the veteran's claim.  Based on the foregoing,
the Board finds that all relevant facts have been properly
and sufficiently developed in this appeal and no further
development is required to comply with the duty to assist the
veteran in developing the facts pertinent to his claim.
Essentially, all available evidence that could substantiate
the claim has been obtained.

Factual Background

On audiologic evaluation on examination for entrance into
service, in February 1976, the reported pure tone thresholds,
in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
15
15
15

15
LEFT
15
15
15

25

On audiologic evaluation conducted in conjunction with his
discharge examination in February 1980, the reported pure
tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
20
10
10
10
5
LEFT
20
15
25
20
15

In a statement dated in January 2001, the veteran reported
that while working aboard the ship U.S.S. Kitty Hawk (CV-63)
in Bremerton shipyard, in service, he was exposed to loud
noise from needle guns, air hammers and sanders used to
remove old paint.  He also asserted he was later exposed to
noise from airplanes and from the firing of 40 mm saluting
battery.  The veteran described slow deterioration of his
hearing since service.

Criteria

According to the law, service connection is warranted if it
is shown that a veteran has a disability resulting from an
injury incurred or a disease contracted in the line of duty,
or for aggravation of a preexisting injury or disease in
active military service.  38 U.S.C.A. � 1110 (West 2002); 38
C.F.R. � 3.303 (2003).  Service connection may also be
granted for any disease diagnosed after discharge when all of
the evidence establishes that the disease was incurred in
service.  38 C.F.R. � 3.303(d) (2003).

"Generally, to prove service connection, a claimant must
submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
Pond v. West, 12 Vet. App. 341, 346 (1999).  Where the
determinative issue involves a medical diagnosis, competent
medical evidence is required.  This burden typically cannot
be met by lay testimony because laypersons are not competent
to offer medical opinions.  Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).

In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App.
49 (1990); 38 U.S.C.A. � 5107(b) (West 2002); 38 C.F.R.
� 3.102 (2003).

For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies of 500,
1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or
greater; or when the thresholds for at least three of these
frequencies are 25 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent.  38 C.F.R. � 3.385 (2003).

The United States Court of Appeals for Veterans Claims
(Court), referring to its holding in Ledford v. Derwinski, 3
Vet. App. 87, 89 (1992), stated in Hensley v. Brown, 5 Vet.
App. 155 (1993), that ". . . the regulation, although
prohibiting an award of service connection where audiometric
test scores are within established limits, does not prevent a
veteran from establishing service connection on the basis of
post-service evidence of hearing loss related to service when
there were no audiometric scores reported at separation from
service." Id. at 158.

Legal Analysis

The veteran asserts that service connection is warranted for
a bilateral hearing loss disability.  The Board notes,
however, that the service medical records do not refer to a
complaint or finding of hearing loss disability while in
service.  Indeed, audiometric test findings on separation
from service did not demonstrate hearing loss 'disability"
for VA compensation purposes.  See 38 C.F.R. � 3.385.  The
Board also notes that other than the veteran's own statements
regarding a current hearing loss disability, the veteran has
not provided any medical evidence of current hearing loss
disability for VA purposes.  The competent evidence of record
fails to demonstrate that the veteran has a current bilateral
hearing loss disability that is attributable to his military
service.  Despite the veteran's assertions, he is not
competent to provide an opinion requiring medical knowledge.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  Thus, the
Board finds that the competent medical evidence of record is
of greater probative value than the veteran's statements in
support of his claim.  Accordingly, the Board finds that the
preponderance of the evidence is against the veteran's claim
for service connection for bilateral hearing loss disability.

ORDER

Entitlement to service connection for bilateral hearing loss
disability is denied.

REMAND

The Department of Veterans' Affairs must make reasonable
efforts to assist the veteran 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).  Such assistance shall
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 asserts that service connection is warranted for
a bilateral heel disability, and a back disability.  The
veteran's service medical records reveal that he was treated
for bilateral heel contusions in March 1976 and complained
of, and was treated for, mid-back muscle strain in December
1979.  Although the veteran contends that he has current
disabilities that result from these in-service injuries, the
claims file indicates that the veteran has not been given a
VA examination to determine the nature and etiology of any
such disabilities.  As such, the Board finds that an
examination is warranted to determine the nature and etiology
of the veteran's current heel and back disabilities.

Accordingly, the case is REMANDED to the RO for action as
follows:

1.  The RO should contact the veteran and
request that he furnish the names,
addresses, and dates of treatment of all
medical providers from whom he has
received treatment for his bilateral heel
and back disabilities since his military
service.  After securing the necessary
authorizations for release of this
information, the RO should seek to obtain
copies of all treatment records referred
to by the veteran.

2.  The veteran should then be afforded a
VA examination to determine the nature
and etiology of his heel and back
disabilities.  The examiner should be
requested to furnish an opinion
concerning whether it is at least as
likely as not that the veteran's current
heel and back disabilities, if any, are
etiologically related to his service in
the military.  The rationale for all
opinions expressed should be set forth.
All necessary tests should be performed.
The claims folder should be made
available to the examiner in conjunction
with the examination.

3.  Following completion of the above,
the RO should review the evidence and
determine whether the veteran's claim may
be granted.  If not, he and his
representative should be furnished an
appropriate supplemental statement of the
case and be provided an opportunity to
respond.  The case should then be
returned to the Board for further
appellate consideration.

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

The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

______________________________________________
	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

VA
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2003
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4597
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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.

VA
FORM
JUN
2003
(RS)

4597
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