judge_norm: ROBERT E SULLIVAN

benefit: tdiu

text:
Citation Nr: 0426000
Decision Date: 09/20/04    Archive Date: 09/29/04

DOCKET NO.  96-18 324A	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to an extraschedular rating for bilateral
knee disabilities.

2.  Entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

S. J. Janec, Counsel

INTRODUCTION

The veteran had active military service from January 1988 to
January 1990.

This matter comes before the Board of Veterans' Appeals
(Board) from rating decisions of the Montgomery, Alabama,
Regional Office (RO) of the Department of Veterans Affairs
(VA).

The veteran's appeal was remanded to the RO in October 1997,
August 1999, and June 2000.  In a September 2001 decision,
the Board denied a rating in excess of 30 percent for a right
knee disability and a left knee disability; and remanded the
issue of entitlement to consideration for an extraschedular
rating for bilateral knee disabilities and entitlement to a
total disability rating based on individual unemployability.
The requested development has been accomplished, and the case
has now been returned to the Board for appellate review.

The veteran was scheduled for a personal hearing before a
Veterans Law Judge in Washington, D.C., in July 1997.  He
failed to report.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained and the
duties to inform and assist have been met.

2.  The veteran's bilateral knee disabilities do not require
frequent hospitalization and do not markedly interfere with
employment beyond that contemplated by the rating schedule.

3.  The veteran is not precluded from performing all forms of
substantially gainful employment as a result of his service-
connected knee disabilities.

CONCLUSIONS OF LAW

1.  The criteria for referral for consideration of an
extraschedular rating for bilateral knee disabilities have
not been met.  38 U.S.C.A. �� 1155, 5103A, 5107 (West 2002);
38 C.F.R. �� 3.159, 3.321(b) (2003).

2.  The criteria for a total disability rating based on
individual unemployability due to service-connected
disabilities have not been met.  38 U.S.C.A. �� 1155, 5103A,
5107 (West 2002); 38 C.F.R. �� 3.159, 3.340, 3.34l, 4.16(a)
(2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act (VCAA).  This law eliminated
the concept of a well-grounded claim, and redefined the
obligations of VA with respect to the duties to notify and to
assist claimants in the development of their claims.  First,
VA has a duty to notify the appellant and her representative,
if represented, of any information and evidence needed to
substantiate and complete a claim.  See 38 U.S.C.A. �� 5102
and 5103 (West 2002).  In this regard, VA will inform a
claimant of which information and evidence, if any, that she
is to provide and which information and evidence, if any, VA
will attempt to obtain.  VA will also request that the
claimant provide any evidence in his or her possession that
pertains to the claim.  Second, VA has a duty to assist the
appellant in obtaining evidence necessary to substantiate the
claim.  See 38 U.S.C.A. � 5103A (West 2002).

VA issued regulations to implement the VCAA in August 2001.
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2003).  The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. � 3.156(a), the second sentence of
38 C.F.R. � 3.159(c), and 38 C.F.R. � 3.159(c)(4)(iii), which
were effective August 29, 2001.

Duty to Notify

A VA letter issued in August 2003 apprised the veteran of the
information and evidence necessary to substantiate the claims
for an extraschedular rating and a total disability rating
based on individual unemployability, which information and
evidence, if any, that he was to provide, and which
information and evidence, if any, VA will attempt to obtain
on his behalf.  He was also requested to provide any evidence
in his possession that pertained to the claims.  As such, the
Board finds that the correspondence satisfied VA's duty to
notify the veteran as required by Quartuccio v. Principi, 16
Vet. App. 183 (2002), 38 U.S.C.A. � 5103, and 38 C.F.R.
� 3.159.

It is also noted that a recent case of the United States
Court of Appeals for Veterans Claims (Court) held that
compliance with 38 U.S.C.A. � 5103 required that the VCAA
notice requirement be accomplished prior to an initial
unfavorable determination by the agency of original
jurisdiction.  See Pelegrini v. Principi, No. 01-944 (U.S.
Vet. App. June 24, 2004) (Pelegrini II).  However, in the
present case, the veteran's claims were initially adjudicated
prior to the enactment of the VCAA in November 2000, and the
VCAA notice letter was not sent until August 2003.
Nevertheless, the Court in Pelegrini II noted that such
requirement did not render a rating decision promulgated
prior to providing the veteran full VCAA notice void ab
initio, which in turn would nullify the notice of
disagreement and substantive appeal filed by the veteran.  In
other words, Pelegrini II specifically noted that there was
no requirement that the entire rating process be reinitiated
from the very beginning.  Rather, the claimant should be
provided VCAA notice and an appropriate amount of time to
respond and proper subsequent VA process.

Because the VCAA notice in this case was not provided to the
veteran prior to the initial AOJ adjudication of the claims,
the timing of the notice does not comply with the express
requirements of the law as found by the Court in Pelegrini
II.  While the Court did not specify 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.  There is no basis for
concluding that harmful error occurs simply because a
claimant receives VCAA notice after an initial adverse
adjudication.

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), 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).  Further, 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 (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 to the veteran in August 2003 was
not given prior to the first AOJ adjudication of the claims,
the notice was provided by the AOJ prior to the most recent
transfer and certification of his 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).  The veteran
has been provided with every opportunity to submit evidence
and argument in support of his claims, and to respond to VA
notices.  Therefore, not withstanding Pelegrini II, to decide
the appeal would not be prejudicial error to him.
The Court in Pelegrini II 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.  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.

As discussed above, the Board has found that the veteran was
provided every opportunity to identify and submit evidence in
support of his claims.  In this case, because each of the
four content requirements of a VCAA notice has been fully
satisfied, the Board concludes that any deficiency as to the
timing of VCAA notice to the veteran is harmless error.

Duty to Assist

With regard to the duty to assist, the record contains the
veteran's private and VA treatment reports.  Additionally, he
was afforded several VA examinations to ascertain the
severity of his bilateral knee disabilities and to determine
whether they prevent him from engaging in substantially
gainful employment.  The Board has carefully reviewed the
veteran's statements and concludes that he has not identified
further evidence not already of record.  The Board has also
reviewed 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 issues on appeal.  Essentially, all available evidence
that could substantiate the claims has been obtained.  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
the issues addressed in this decision.

II.  Extra-schedular Rating for Bilateral Knee Disabilities

Historically, the record reflects that the veteran injured
his knees during running exercises during service.  Testing
revealed patellar tendonitis bilaterally, tibial tubercle
fragments, and retropatellar syndrome bilaterally with
arthralgia.  Extensive medical treatment resulted in little
improvement and he was separated from service as he was
unable to stand, walk, repetitively ascend and descent
stairs, squat, bend, stoop, or lift for prolonged periods.
Service connection was granted by rating decision of April
1990, and a separate 10 percent disability rating was
assigned to each knee. Since that time, the rating assigned
to each knee has been increased to 30 percent, pursuant to
Diagnostic Codes 5024 and 5257.  In a September 2001
decision, the Board denied an increased rating for both knee
disabilities.  However, the issue of entitlement to
consideration for an extraschedular rating for these
disabilities remained pending.

The relevant regulation provides that, in exceptional
circumstances, where the schedular evaluations are found to
be inadequate, the veteran may be awarded a rating higher
than that encompassed by the schedular criteria.  According
to the regulation, an extraschedular disability rating is
warranted upon a finding that "the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization that would render impractical the
application of the regular schedular standards."  An
exceptional case would include such factors as marked
interference with employment or frequent periods of
hospitalization as to render impracticable the application of
the regular schedular standards.  38 C.F.R. � 3.321(b)
(2003); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The record does not reflect that the veteran has required any
recent hospitalizations for his bilateral knee disabilities.
Moreover, there is no objective evidence that his knee
disabilities markedly interfered with employment beyond that
contemplated by the current schedular rating.  The veteran
has asserted that doctors have told him that he is unable to
work due solely to his knee disabilities.  However, a written
statement by a medical professional to that effect was not
found in the file.  Upon VA examination in December 1999, the
examiner diagnosed the veteran with chronic pain syndrome,
chronic low back pain, chronic bilateral patellar tendonitis,
and an unsteady gait.  He remarked that the veteran was
unable to hold a job due to chronic pain, but he did not
indicate that the veteran's knee disabilities alone produced
marked interference with employment.

In a February 2003 statement, the veteran's previous employer
merely stated that the reason for his termination from
employment in January 1987 was "removal."  A notation
indicated that documentation of physical and/or mental
disability was not available on the leave records.
Additionally, upon VA general medical examination in
September 2003, the examiner stated that the veteran's
reported symptoms far exceeded the objective findings related
to his knees.  An opinion was provided that the veteran's
knee disabilities did not make it impossible for him to
maintain continued employment.

There is no question that the veteran experiences
difficulties as a result of his service-connected knee
disabilities.  However, these symptoms are contemplated in
the currently assigned combined 60 percent disability rating.
See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting
that the disability rating itself is recognition that
industrial capabilities are impaired); Moyer v. Derwinski, 2
Vet. App. 289, 293 (1992).  Accordingly, the Board finds that
there is no objective medical evidence which demonstrates
anything exceptional or unusual about the veteran's service-
connected knee disabilities that is not contemplated in the
criteria in VA's Schedule for Rating Disabilities.  Hence,
the Board finds that referral of the case for extra-schedular
consideration pursuant to 38 C.F.R. � 3.321(b)(1) is not
warranted.

III.  Total Disability Rating Based on Individual
Unemployability

Total disability ratings for compensation based on individual
unemployability may be assigned where the schedular rating is
less than total, when it is found that the disabled person is
unable to secure or follow a substantially gainful occupation
as a result of a single service-connected disability ratable
at 60 percent or more, or as a result of two or more
disabilities, provided at least one disability is ratable at
40 percent or more, and there is sufficient additional
service-connected disability to bring the combined rating to
70 percent or more.  For the above purpose of one 60 percent
disability, or one 40 percent disability in combination, the
following will be considered as one disability:  (1)
Disabilities of one or both upper extremities, or of one or
both lower extremities, including the bilateral factor, if
applicable, (2) disabilities resulting from common etiology
or a single accident, (3) disabilities affecting a single
body system, e.g. orthopedic, digestive, respiratory,
cardiovascular, renal, neuropsychiatric, (4) multiple
injuries incurred in action, or (5) multiple disabilities
incurred as a prisoner of war.  38 C.F.R. �� 3.340, 3.341,
4.16(a) (2003).

In determining whether an individual is unemployable by
reason of service-connected disability, consideration must be
given to the type of employment for which the veteran would
be qualified.  Such consideration would include education and
occupational experience.  Age may not be considered a factor.
38 C.F.R. � 3.341 (2003).  Unemployability associated with
advancing age or intercurrent disability may not be used as a
basis for assignment of a total disability rating.  38 C.F.R.
� 4.19 (2003).

It is the responsibility of the Board to determine the
probative weight to be ascribed as among multiple medical
opinions in a case, and to state reasons or bases for
favoring one opinion over another.  Winsett v. West, 11 Vet.
App. 420, 424-25 (1998).  If all the evidence is in relative
equipoise, the benefit of the doubt should be resolved in the
veteran's favor, and the claim should be granted.
38 U.S.C.A. � 5107 (West 2002); 38 C.F.R. � 3.102 (2003).
However, if the preponderance of the evidence is against the
claim, the claim must be denied.  Gilbert v. Derwinski, 1
Vet. App. 49 (1990).

The veteran's service-connected disabilities are patellar
tendonitis of the right and left knees.  Each knee is
currently rated 30 percent, and his combined disability
rating is 60 percent.  His knee disabilities are considered
as a single disability pursuant to 4.16(a).  Therefore, he
has met the schedular criteria for consideration for
individual unemployability benefits.

Next, it must be determined whether his service-connected
disabilities, alone, preclude him from engaging in
substantially gainful employment (i.e., work which is more
than marginal, that permits the individual to earn a "living
wage").  Moore v. Derwinski, 1 Vet. App. 356 (1991).  The
sole fact that a claimant is unemployed or has difficulty
obtaining employment is not enough.  A high rating in itself
is recognition that the impairment makes it difficult to
obtain or keep employment, but the ultimate question is
whether the veteran is capable of performing the physical and
mental acts required by employment, not whether he can find
employment.  Van Hoose, supra.

Excluding the adverse effects of advancing age and the
veteran's non-service-connected conditions, the preponderance
of the evidence of record is against the veteran's claim that
his service-connected knee disabilities, alone, prevent him
from working.  While his service-connected knee disabilities
clearly cause difficulty in performing physical labor, the
evidence indicates that these disabilities have not rendered
him unemployable.  Upon VA examination in February 1998, the
veteran reported that he had not been employed since 1997,
when he had worked at a VA Medical Center pushing a heavy
food cart.  He stated that this job had aggravated his knee
and back pain.  With regard to the veteran's functional
limitations, the examiner noted that the veteran was unable
to drive, and that his wife did the driving because it
aggravated his back and knee pain.  In particular, he could
not use the brake pedal without aggravating his knee pain and
he was only able to walk for limited distances.  He could not
carry his children or perform any weight lifting.  The
examiner opined that repeated use of his knees led to greater
functional disability and that use of the knee joints made
the patellar tendonitis worse.  But he did not state that the
knee disabilities prevented him from working.

In a June 1999 statement, a VA fellow in Rheumatology
remarked that the veteran was unable to work because of
severe limitation of movement in his spine.

Upon VA examination in December 1999, the veteran reported
that he had quit his job due to constant pain in his back and
knees.  The examiner diagnosed the veteran with chronic pain
syndrome, chronic low back pain, chronic bilateral patellar
tendonitis, and an unsteady gait.  He remarked that the
veteran was unable to hold a job due to chronic pain.

In an August 2000 statement, the veteran reported that he was
not receiving Social Security Administration disability
benefits.

At a VA rheumatology examination in September 2003, the
examiner concluded that the degree of disability due to the
veteran's knee disabilities was "appreciable," although he
acknowledged that the veteran's knee radiographs did not show
any significant abnormality.  At a VA general medical
examination in September 2003, the veteran was noted to walk
with a cane and he wore bilateral braces on his legs.  There
was no swelling of the joints; McMurray and Lachman's tests
were negative.  There was no crepitus and no significant
edema.  There was no evidence of degenerative joint disease,
inflammatory arthritis, or osteoarthritis.  The examiner
concluded that the veteran's reported symptoms far exceed the
objective findings related to his knees.  Therefore, the
right and left knee disabilities did not make it impossible
for him to maintain continued employment.  This opinion was
based on a full review of the veteran's claims file,
including prior examination reports.

In consideration of the evidence of record, the Board finds
that the preponderance of the evidence is against a finding
that the veteran's service-connected knee disabilities
preclude all substantially gainful employment.  See Van
Hoose, Gilbert, supra.  As outlined above, the veteran has
been diagnosed with chronic pain syndrome, chronic low back
pain, and chronic bilateral knee pain.  Notably, the Board
points out that the veteran has not established service
connection for a back disability or chronic pain syndrome.
Therefore, these disabilities may not be considered in
determining the veteran's entitlement to individual
unemployability benefits.  In the September 2003 statement,
the examiner concluded that the veteran's knee disabilities
did not make it impossible for him to maintain continued
employment.  The Board has found this opinion to be the most
probative because it was based on a full review of the
veteran's claims file and a thorough clinical evaluation, and
specifically addressed the impact the veteran's knee
disabilities had on his employability.  See Winsett, supra.
The other statements of record, while acknowledging that the
veteran's knee disabilities may be severe, attributed his
unemployability to his back disability and his chronic pain
syndrome.  Accordingly, the Board finds that a total
compensation rating based on individual unemployability is
not warranted.

ORDER

An extraschedular rating for bilateral knee disabilities is
denied.

Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities is
denied.

____________________________________________
	Robert E. Sullivan
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

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

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

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

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

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

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

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

VA
FORM
JUN
2003
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CONTINUED

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

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

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

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

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

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

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

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

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

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

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

VA
FORM
JUN
2003
(RS)

4597
Page
2


series: legacy

judge_norm: GEORGE E GUIDO JR

disposition: remanded

text: On VA examination in April 2003, the examiner reported that the veteran had mild symptoms of peripheral neuropathy of the feet. At the hearing in January 2004, the veteran testified that he has some neuropathy in his feet. Since the extent of the neuropathy is not clear from the record and under the duty to assist, 38 C.F.R. § 3.159, this case is remanded for the following action:

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

text:
Citation Nr: 0427000
Decision Date: 09/28/04    Archive Date: 10/06/04

DOCKET NO.  03-13 473	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi

THE ISSUES

1.  Entitlement to an increased rating in excess of 20
percent for diabetes mellitus type II.

2.  Entitlement to compensation for individual
unemployability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. H. Nilon, Associate Counsel
INTRODUCTION

The veteran served on active duty from March 1966 to January
1969.

This matter is before the Board of Veterans' Appeals (Board)
on appeal of an October 2002 rating decision of the Jackson,
Mississippi, Department of Veterans Affairs Regional Office
(RO).

In January 2004, the veteran testified at a hearing before
the undersigned Acting Veterans Law Judge.  A transcript of
that testimony has been associated with the file.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C.

REMAND

On VA examination in April 2003, the examiner reported that
the veteran had mild symptoms of peripheral neuropathy of the
feet.  At the hearing in January 2004, the veteran testified
that he has some neuropathy in his feet.  Since the extent of
the neuropathy is not clear from the record and under the
duty to assist, 38 C.F.R. � 3.159, this case is remanded for
the following action:

1.  At this stage of the appeal, to
ensure compliance with the VCAA in
accordance with 38 U.S.C.A. � 5103,
ask the veteran to provide any
evidence in his possession that
pertains to his claim.

2.  Schedule the veteran for a VA
examination to determine whether the
veteran has disabling complications
of service-connected diabetes.  The
veteran's file must be made
available for review by the
examiner.  The examiner is asked to
comment on whether the veteran's
physical activities need to be
restricted because of diabetes and
whether the peripheral neuropathy is
wholly sensory or not and, in any
event, what is the degree of
neurological loss in terms of mild,
moderate, or severe impairment.

3.  After the above development has
been completed, adjudicate the
claims.  If any benefit is denied,
prepare a supplemental statement of
the case and return the case to the
Board.

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

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

____________________________________________
GEORGE E. GUIDO JR.
Acting Veterans Law Judge, Board of Veterans' Appeals

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

IIIII


judge_norm: SHANE A DURKIN

judge_role: Veterans Law Judge

disposition: denied

condition: thyroid

text:
Citation Nr: 0428000
Decision Date: 10/08/04    Archive Date: 10/15/04

DOCKET NO.  03-33 367	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada

THE ISSUES

Entitlement to a compensable evaluation for post gingivectomy
of the upper and lower jaw.

Entitlement to service connection for thyroid disability, to
include on a secondary basis.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

E. B. Redman, Associate Counsel

INTRODUCTION

The veteran served on active duty from February 1952 to
February 1957 and from May 1957 to November 1974.  This
matter comes before the Board of Veterans' Appeals (Board) on
appeal from a March 2003 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

In March 2004, a Travel Board hearing before the undersigned
Veterans Law Judge was held in Las Vegas, Nevada.  A
transcript of that hearing is of record.

FINDINGS OF FACT

1.  All pertinent notification and evidential development
necessary for an equitable disposition of the issues decided
herein have been accomplished.

2.  Post gingivectomy of the upper and lower jaw is not
productive of any bony abnormality, bone loss, functional
impairment due to loss of motion and masticatory function
loss or limitation of inter-incisal range of motion.

3.  Thyroid disability was not present in service, nor is it
etiologically related to service or service-connected
disability.

CONCLUSIONS OF LAW

1.  The criteria for a compensable evaluation for post
gingivectomy of the upper and lower jaw have not been met.
38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. �� 4.150,
Diagnostic Codes 9900, 9913 (2003).

2.  Thyroid disability was not incurred in or aggravated by
active duty.  38 U.S.C.A. �� 1110, 1116 (West 2002);
38 C.F.R. �� 3.303, 3.307, 3.309, 3.113 (2003).

3.  Thyroid disability is not proximately due to or the
result of service-connected disability.  38 C.F.R. � 3.310(a)
(2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) [38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)] and the
implementing regulations are applicable to the veteran's
claims.

The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and 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 portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.  In
addition, VA must also request that the veteran provide any
evidence in his possession that pertains to the claim.

The record reflects that through the statement of the case,
supplemental statement of the case and letters dated in
September 2002 and January 2004, the RO informed the veteran
of the evidence and information necessary to substantiate his
claims, the information required of him to enable VA to
obtain evidence in support of his claims, the assistance that
VA would provide to obtain evidence and information in
support of his claims, and the evidence that he should submit
if he did not desire VA to obtain such evidence on his
behalf.  Although VA did not specifically inform the veteran
that he should submit any pertinent evidence in his
possession, it did inform him of the evidence that would be
pertinent and that he should either submit such evidence or
provide the RO with the information necessary for the RO to
obtain such evidence.  In addition, at the Travel Board
Hearing in March 2004, the veteran indicated that he had no
pertinent evidence in his possession that had not already
been submitted.  Therefore, the Board is satisfied that VA
has complied with the notification requirements of the VCAA
and the implementing regulations.  See Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, No.
01-944 (U.S. Vet. App. Jan. 13, 2004).

The record also reflects that all pertinent available service
medical records and all available post-service medical
evidence identified by the veteran have been obtained.  In
addition, the veteran has been afforded an appropriate VA
examination.  Neither the veteran nor his representative has
identified any outstanding evidence or information that could
be obtained to substantiate the claims.  The Board is also
unaware of any such outstanding evidence or information.
Therefore, the Board is also satisfied that the RO has
complied with the duty to assist provisions of the VCAA and
the implementing regulations.

The Board also notes that in Pelegrini v. Principi, 17 Vet.
App. 412 (2004), the United States Court of Appeals for
Veterans Claims (Court) held that the plain language of 38
U.S.C.A. � 5103(a) (West 2002), requires that notice to a
claimant pursuant to the VCAA be provided "at the time" that,
or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits.  Id. at 420.  Pelegrini further held that VA failed
to demonstrate that, "lack of such a pre-AOJ-decision notice
was not prejudicial to the appellant, see 38 U.S.C. �
7261(b)(2) (as amended by the Veterans Benefits Act of 2002,
Pub. L. No. 107-330, � 401, 116 Stat. 2820, 2832) (providing
that "[i]n making the determinations under [section 7261(a)],
the Court shall . . . take due account of the rule of
prejudicial error")."  Id. at 422.

In June 2004, the Court granted the Secretary's motion for
reconsideration and withdrew its opinion in Pelegrini I.
Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 22,
2004) (Pelegrini II).  On reconsideration, the Court again
stated that the VCAA notice must be provided before an
initial unfavorable determination.  Id. at 3.  It also
provided clarification essentially indicating that the
failure to provide such notice in connection with
adjudications prior to the enactment of the VCAA was not
error and that in such cases, the claimant is entitled to
"VCAA-content complying notice and proper subsequent VA
process."  Id. at 10-11.

In this case, the RO readjudicated the veteran's claims on a
de novo basis following compliance with the notice
requirements of the VCAA and the implementing regulations.
In sum, the Board is satisfied that the RO properly processed
the claim following compliance with the notice requirements
of the VCAA and the implementing regulations.

Factual Background

I.  Post gingivectomy of the upper and lower jaw

In accordance with 38 C.F.R. �� 4.1, 4.2, 4.41, 4.42 (2002)
and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board
has reviewed all evidence of record pertaining to the history
of the service-connected disability.  The Board has found
nothing in the historical record which would lead to the
conclusion that the current evidence of record is not
adequate for rating purposes.  Moreover, the Board is of the
opinion that this case presents no evidentiary considerations
which would warrant an exposition of remote clinical
histories and findings pertaining to this disability, except
as noted below.

Service medical records note that according to the entrance
exam, the veteran was missing several teeth.  The separation
examination notes several missing teeth as well.

A June 1997 letter from the veteran's private periodontist,
which was received in December 2003, notes a diagnosis of
generalized advanced adult chronic periodontitis.  The letter
also states that there is general inflammation and edema of
the tissue.  Tooth #30 was recommended for extraction.

According to the report of a February 2003 VA dental
examination, the veteran has no functional impairment due to
loss of motion or masticatory function loss.  He has no
limitation in the inter-incisal range of motion.  Several of
the veteran's teeth were missing, but the examiner noted that
the missing teeth could be replaced with maxillary and
mandibular removable partial dentures.  The veteran's maximum
opening was noted to be 40 mm, which is within normal limits.
There was no bone loss of mandible, maxilla or hard palate,
except that consistent with partial edentulism.  All
diagnostic and clinical tests and exams were negative for
dental caries, periodontal disease, malocclusion and
temporomandibular joint dysfunction.  There was no loss of
teeth due to loss of substance of body of maxilla or
mandible.

II.  Thyroid disability

Service medical records are negative for any finding or
diagnosis of a thyroid disorder.

A medical report from the Gastroenterology Center of Nevada
dated in November 1994 notes that the veteran denied a
history of thyroid disease.  The diagnostic impression was
hiatal hernia, gastroesophageal reflux disease.

Private medical records from April 1998 note that the veteran
was diagnosed with a left thyroid nodule.  Subsequent private
medical records continue to note a diagnosis of left thyroid
nodule through December 2002.  No etiology of the thyroid
nodule is listed.

A November 2000 VA medical record notes a diagnosis of
history of thyroid nodule.

There is no other medical evidence of a thyroid disorder.

The veteran is currently in receipt of a 10 percent rating
for hiatal hernia.

Analysis

I.  Post gingivectomy of the upper and lower jaw

Disability evaluations are determined by the application of a
schedule of ratings, which is in turn based on the average
impairment of earning capacity caused by a given disability.
38 U.S.C.A. � 1155; 38 C.F.R. � 4.1 (2003).  Separate
diagnostic codes identify the various disabilities.

Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating.  Otherwise, the lower rating will
be assigned.  38 C.F.R. � 4.7.

In every instance where the schedule does not provide a
noncompensable evaluation for a diagnostic code, a
noncompensable evaluation will be assigned when the
requirements for a compensable evaluation are not met.
38 C.F.R. � 4.31.

In addition, when there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.  38 U.S.C.A. � 5107(b);
38 C.F.R. � 4.3.

The veteran is currently in receipt of a noncompensable
evaluation under a diagnostic code in which he is rated by
analogy for his post gingivectomy of the upper and lower jaw.
In the appellant's brief, which was submitted in lieu of a
Form 646, the veteran's representative maintains that the
veteran deserves a compensable evaluation based upon
recurrent infections.  The veteran has not articulated any
basis upon which he feels he deserves a higher evaluation.
At the Travel Board hearing before the undersigned in March
2004, the veteran's main concern seemed to be entitlement to
receive dental care at a VA facility.

Under 38 C.F.R. � 4.150, Diagnostic Code 9900, the presence
of chronic osteomyelitis is required for a compensable
rating.  According to the medical evidence of record, the
veteran does not have such a diagnosis.

In addition, under 38 C.F.R. � 4.150, Diagnostic Code 9913,
loss of teeth due to substance of body of maxilla or mandible
without loss of continuity, a 10 percent rating requires all
upper or lower anterior teeth to be missing or all upper and
lower teeth on one side to be missing.  However, such rating
applies only to bone loss through trauma or disease such as
osteomyelitis and not to the loss of the alveolar process as
a result of periodontal disease, since such loss is not
considered disabling.  Although the veteran is missing
several teeth, he was missing several teeth before he entered
active duty and he is not missing all upper anterior teeth,
all lower anterior teeth or all upper and lower teeth on one
side.  Additionally, the medical evidence of record shows
that the veteran's loss of teeth is not due to osteomyelitis
or loss of substance of body of maxilla or mandible.

The Board has considered whether there is any other basis for
assigning a compensable evaluation but notes that the
disability is not productive of any bony abnormality, bone
loss, functional impairment due to loss of motion and
masticatory function loss, or limitation of inter-incisal
range of motion, which would warrant a higher rating under
any other potentially applicable diagnostic code.  In sum,
there is no basis for assigning a compensable evaluation for
his post gingivectomy of the upper and lower jaw.

II.  Thyroid disability

Service connection is granted for disability resulting from
disease or injury incurred in or aggravated by active duty.
38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.

Service connection may be granted for any disease initially
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d).

Direct service connection may not be granted without medical
evidence of a current disability, medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury.  See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996)
(table)].

Service connection may also be granted for disability which
is proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. � 3.310(a).  Additional
disability resulting from the aggravation of a nonservice-
connected disability by a service-connected disability is
also compensable under 38 C.F.R. � 3.310(a).  Allen v. Brown,
7 Vet. App. 439, 448 (1995) (en banc).

Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary.  The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary.  When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant.  38 U.S.C.A. � 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a
claim on its merits, the evidence must preponderate against
the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.

The veteran contends that he is entitled to service
connection for thyroid disability because it was incurred as
a result of his service in Vietnam or is secondary to his
service-connected reflux disease.

The veteran's service medical records are negative for any
evidence of a thyroid disorder.  While the private medical
records do state that the veteran has a nodule on his
thyroid, there is no medical opinion linking this to his
active service.  In addition, the veteran did not seek
medical attention for his thyroid until more than twenty
years after he separated from service.

To the extent that the veteran is alleging that his thyroid
disorder developed as a result of exposure to herbicides, the
Board notes that 38 U.S.C.A. � 1116(a) provides presumptive
service connection on the basis of herbicide exposure for
specified diseases manifested to a degree of 10 percent
within a specified period in a veteran who, during active
military, naval, or air service, served in the Republic of
Vietnam during the period beginning on January 9, 1962, and
ending on May 7, 1975.  It also provides presumptive service
connection on the basis of herbicide exposure for each
additional disease that the Secretary determines in
regulations prescribed under this section warrants a
presumption of service-connection by reason of having a
positive association with exposure to an herbicide agent, and
that becomes manifest within the period (if any) prescribed
in such regulations in a veteran who, during active military,
naval, or air service, served in the Republic of Vietnam
during the period beginning on January 9, 1962, and ending on
May 7, 1975.

Whenever the Secretary determines, on the basis of sound
medical and scientific evidence, that a positive association
exists between (A) the exposure of humans to an herbicide
agent, and (B) the occurrence of a disease in humans, the
Secretary shall prescribe regulations providing that a
presumption of service connection is warranted for that
disease for the purposes of this section.  38 U.S.C.A.
� 1116(b)(1).

In making determinations for the purpose of this subsection,
the Secretary shall take into account (A) reports received by
the Secretary from the National Academy of Sciences under
section 3 of the Agent Orange Act of 1991 [note to this
section], and (B) all other sound medical and scientific
information and analyses available to the Secretary.  In
evaluating any study for the purpose of making such
determinations, the Secretary shall take into consideration
whether the results are statistically significant, are
capable of replication, and withstand peer review.
38 U.S.C.A. � 1116(b)(2).

An association between the occurrence of a disease in humans
and exposure to an herbicide agent shall be considered to be
positive for the purposes of this section if the credible
evidence for the association is equal to or outweighs the
credible evidence against the association.  38 U.S.C.A.
� 1116(b)(3).

Thyroid nodular disease is not among the diseases specified
in 38 U.S.C.A. � 1116(a).  In addition, the Secretary has not
determined, on the basis of sound medical and scientific
evidence, that a positive association exists between (A) the
exposure of humans to an herbicide agent, and (B) the
occurrence of thyroid nodular disease in humans.  See
38 C.F.R. � 3.309(e).

Although the veteran is not precluded from establishing
service connection for thyroid disability on the basis of
herbicide exposure, he has provided no medical evidence
supportive of the alleged causal relationship.

The evidence of a nexus between the veteran's current thyroid
disability and his military service is limited to the
veteran's own statements.  This is not competent evidence
since laypersons, such as the veteran, are not qualified to
render an opinion concerning medical causation.  See Espiritu
v. Derwinski, 2 Vet. App. 492, 494 (1992).

In the absence of competent evidence of a relationship
between the veteran's current thyroid disability and his
period of active duty, direct service connection for thyroid
disability must be denied.

With respect to the argument that the veteran's thyroid
disability is due to his reflux disease, the medical evidence
of record shows nothing to suggest that the thyroid
disability is due to reflux disease.  Although the veteran
provided credible testimony at the Travel Board hearing, he
has not provided medical documentation of a nexus.  The
veteran was invited to submit such needed nexus evidence and
was given 60 days in which to do so.  However, despite the
record being kept open for this time period, no such evidence
was received.

Accordingly, the Board must conclude that service connection
is not in order for thyroid disability.  In reaching this
conclusion, the Board has considered the benefit-of-the-doubt
doctrine.  However, as the preponderance of the evidence is
against the veteran's claim, that doctrine is not applicable.

ORDER

Entitlement to a compensable evaluation for post gingivectomy
of the upper and lower jaw is denied.

Entitlement to service connection for thyroid disability is
denied.

____________________________________________
	Shane A. Durkin
	Veterans Law Judge
Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

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

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

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

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

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

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

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

VA
FORM
JUN
2003
(RS)

4597
Page
1
CONTINUED

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

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

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

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

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

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

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

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

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

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

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

VA
FORM
JUN
2003
(RS)

4597
Page
2


judge_norm: WAYNE BRAEUER

disposition: granted

text:
Citation Nr: 0429000
Decision Date: 10/21/04    Archive Date: 10/28/04

DOCKET NO.  96-08 800	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois

THE ISSUES

1.  Entitlement to service connection for disability
manifested by fatigue, to include as due to an undiagnosed
illness.

2.  Entitlement to service connection for disability
manifested by joint aches and pains, to include as due to an
undiagnosed illness.

3.  Entitlement to service connection for Achilles
tendonitis, to include as due to an undiagnosed illness.

4.  Entitlement to service connection for skin disability, to
include as due to an undiagnosed illness.

5.  Entitlement to service connection for kidney stones, to
include as due to an undiagnosed illness.

6.  Entitlement to a compensable rating for residuals of a
right ankle fracture.

7.  Entitlement to a compensable rating for residuals of a
right thumb fracture.
REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARINGS ON APPEAL

Appellant and his spouse; appellant

ATTORNEY FOR THE BOARD

Dennis F. Chiappetta, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from
July 1983 to September 1983, and again from November 1990 to
June 1991 in support of Operation Desert Storm.  His military
personnel records show that he was deployed in the Southwest
Asia theater of operations from December 1990 to April 1991.
These matters are before the Board of Veterans' Appeals
(Board) on appeal from an October 1995 rating decision of the
Louisville, Kentucky Department of Veterans Affairs (VA),
Regional Office (RO) and a June 1998 rating decision of the
Chicago, Illinois, RO.  In January 2001, the case was
remanded for additional development.

In November 2000, the veteran testified at a Video Conference
hearing before one of the undersigned Veterans Law Judges,
and in November 2003 he testified at a Travel Board hearing
before another of the undersigned.  Transcripts of those
hearings are associated with the claims file.  As the
Veterans Law Judges who presided at hearings must participate
in the decision on the claim (See 38 C.F.R. � 20.707), this
appeal is being decided by a panel of three Veterans Law
Judges.

The issues of entitlement to service connection for
disabilities manifested by fatigue, joint aches and pains,
Achilles tendonitis, a skin disability, and kidney stones, to
include as due to undiagnosed illness, and entitlement to a
compensable rating for residuals of a right thumb fracture
are REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.  The veteran will be notified if
any action is required on his part.

FINDING OF FACT

Throughout the entire appeal period, the veteran's right
ankle disorder has been manifested by X-ray confirmed
arthritis with pain; more than moderate limitation of motion
is not shown.

CONCLUSION OF LAW

A 10 percent rating is warranted for the veteran's right
ankle disorder.  38 U.S.C.A. �� 1155, 5107 (West  2002);
38 C.F.R. �� 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59,
4.71a, Diagnostic Codes 5003, 5010, and 5271 (2004).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VCAA

On November 9, 2000, the President signed into law the
Veteran's Claims Assistance Act of 2000 (VCAA), codified at
38 U.S.C.A. �� 5102, 5103, 5103A, 5107.  Regulations
implementing the VCAA are published at 38 C.F.R. �� 3.102,
3.156(a), 3.159, 3.326(a).  The VCAA applies in the instant
case.  The Board finds that the mandates of the VCAA are met
with regard to the issue decided below.

By the June 1998 rating decision, the October 1999 SOC, the
January 2001 remand, a June 2003 supplemental SOC, and
various VA correspondence including letters in February 2001,
March 2001, August 2001, and March 2003, the veteran has been
advised of the controlling law and regulations and
specifically advised of the criteria for an increased rating.
These documents also clearly explained VA's respective
responsibilities in the development of the claim.
Furthermore, by the various documents noted, at his November
2000 hearing, the January 2001 Board remand, and the November
2003 hearing, the veteran was informed that he should submit,
or seek VA's help in obtaining, any evidence pertinent to his
claim.  His representative acknowledged at the November 2003
hearing that the notice provisions of the VCAA are met.
There is no further duty to notify.  See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).

Regarding the duty to assist, all pertinent records
identified have been obtained.  Specifically, VA has obtained
all known records of VA and private medical treatment for the
right ankle disorder, and the veteran has not identified any
other evidence with specificity, so as to enable further
development.  The RO arranged for a March 2003 VA examination
to assess the veteran's right ankle disability.  The evidence
of record is sufficient to address the matter at hand.
During his November 2003 hearing, the veteran indicated that
he is not receiving any specific treatment for this
condition.  VA's assistance obligations are also met.  No
further assistance to the veteran is required.  He is not
prejudiced by the Board's proceeding with appellate review.

II.  Factual Background

In May 1995, while hospitalized at a the Westside VA Medical
Center (VAMC), in Chicago, Illinois, the veteran fell and
suffered a bimalleolar right ankle fracture.  He was taken to
an operating room where he underwent formal open reduction
and internal fixation of the fractures.

The impression on VA X-rays taken in October 1995 was: (1)
S/P open reduction and internal fixation (ORIF) of the right
lateral malleolus (healed) with side plate and screws. (2)
Distal widening of distal right TIB-FIB space complicated
with partial tear (chronic) of right TIB-FIB ligaments. (3)
Moderate bilateral malleolar soft-tissue swelling persistent
five months after fracture, possibly secondary to old
ligamentous injury. (4) Mild, post-traumatic anterior
capsular calcification of ankle joint.

In June 1997, the veteran submitted a statement indicating he
wished to file a claim for compensation for the residuals of
the right ankle fracture under 38 U.S.C.A. � 1151.

On VA examination in May 1998, it was noted that the veteran
reported complaints of occasional right ankle pain.  He was
undergoing no treatment, had no periods of flare-ups, had no
episodes of dislocation or recurrent subluxation, and did not
require crutches or a brace.  He reported pain on mis-
stepping onto the foot, pain while driving, and occasional
problems with stairs.  Physical examination revealed no
limitation of motion due to pain.  Objective findings
included edema and scarring about the lateral ankle joint,
and tenderness over the lateral malleolus, without medial
tenderness.  Right ankle range of motion testing revealed
that dorsiflexion was from 0 to 15 degrees, and plantar
flexion was from 0 to 45 degrees, with no pain on motion.  It
was also noted that there was no ankle laxity.  X-rays
revealed a fibular plate and screws with secure fixation, and
evidence of an avulsion fracture of medial malleolus with
post-traumatic arthritis medially.  The diagnosis was status
post open reduction, internal fixation of lateral malleolus
fracture, right ankle.

A July 1998 record of private treatment for right ankle
problems by TBI, M.D., revealed that the veteran had
complaints of lack of endurance, especially in ambulation,
pain and swelling, and stuffiness at the right ankle.  He
reported that he had to take weight off the foot after 2 to 3
hours because of pain and indicated that the intensity of the
pain was 5 out of a maximum of 10.  Physical examination
revealed obvious soft tissue swelling around the right ankle.
Range of motion testing showed the veteran lacked 10 degrees
of dorsiflexion and had extension to 30 degrees.  There was
localized tenderness over the ankle.  Right ankle strength
was diminished, compared to the left.  X-rays revealed a
well-healed fracture with compression plating and screws at
the distal fibula.  TBI, M.D., noted that there was some
post-traumatic arthritis setting in, which was not unusual
following a severe fracture of the ankle.
At his November 2000 hearing the veteran testified that he
had right ankle weakness and a little swelling.  He noted
that he was receiving treatment for right ankle arthritis
from a Dr. S.

Records of treatment by Dr. S include reports of March 2001
X-rays of the right ankle, noting pain and a history of
trauma.  The impression was internally fixed healed fracture
of the distal right fibula with no acute bony abnormality
identified.

On VA examination in March 2003, the veteran reported that he
continued to have nagging right ankle pain at a level of
5/10.  He noted the pain was most prominent when sitting
after weight bearing, and that the pain was provoked by
walking down one flight of stairs or walking for one minute
or greater.  Physical examination of the right ankle revealed
a five-centimeter well-healed surgical scar in the inner
aspect of the ankle and moderate bony deformity without signs
of inflammation or swelling.  He held the ankle in a neutral
position at 30 degrees of plantar flexion.  Range of motion
testing revealed that from this neutral position he could
only muster an additional 10 degrees of plantar flexion,
which was limited by tightness.  Dorsiflexion from this
position was no more than 3 degrees due to pain at that
point.  Identical findings were noted on active and passive
range of motion, without pain limitation.  Gait, station, and
ankle strength all appeared to be normal.  There was no
incoordination or sign of fatigability.  The relevant
diagnosis was: post pinning for fracture of the right ankle
with mild right ankle strain.  X-rays showed a plate and
screws projected to the distal right fibula (with one screw
appearing to be asymmetrically positioned), and osteopenia.

At his November 2003 hearing, the veteran testified that his
right ankle disability made going up and down stairs very
difficult.  He often mis-stepped going down stairs and has to
take a break climbing stairs.  He also reported he had right
ankle discoloration, and that the ankle disorder caused him
to put more weight on his left leg.

III.  Analysis

Disability evaluations are determined by the application of a
schedule of ratings, which is based on the average impairment
of earning capacity.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.
Separate diagnostic codes identify the various disabilities.

As this appeal is from the initial rating assigned with a
grant of service connection, "staged" ratings are for
consideration.  See Fenderson v. West, 12 Vet. App. 119
(1999).  However, staged ratings are not appropriate here, as
the degree of impairment due to the right ankle disorder is
not shown to have fluctuated significantly during the
appellate period.

Where there is a question as to which of two evaluations is
to be applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
that rating.  Otherwise, the lower rating will be assigned.
38 C.F.R. � 4.7.

The United States Court of Appeals for Veterans Claims
(Court) has held that in evaluating a service-connected
disability, functional loss due to pain under 38 C.F.R.
� 4.40; and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
� 4.45 must be considered.

Since the effective date of the grant of service connection,
in June 1997, the veteran's right ankle disability has been
rated noncompensable under Codes 5010-5003-5271, for
arthritis with limitation of motion.

Code 5271 provides for a 10 percent rating when limitation of
motion of the ankle is moderate and a 20 percent rating when
limitation is marked.  Additionally, under Codes 5003-5010, a
compensable rating may be assigned even when the reported
limitation of motion is not compensable under the appropriate
code (5271), if there is X-ray evidence of arthritis together
with limitation of motion objectively confirmed by findings
such as swelling, muscle spasm or satisfactory evidence of
painful motion.  See 38 C.F.R. � 4.71a, Codes 5003, 5010,
5271.

For VA compensation purposes, normal dorsiflexion of the
ankle is from 0 to 20 degrees, and normal plantar flexion of
the ankle is from 0 to 45 degrees.  See 38 C.F.R. �4.71,
Plate II.

Review of the record reveals objective medical findings
documenting limitation of motion of the right ankle with X-
ray evidence of right ankle arthritis dating back through May
1998.  (There were also findings of mild, post-traumatic
anterior capsular calcification of the ankle joint appearing
on X-rays as early as in October 1995, making it likely that
this degree of disability was present earlier).  While full
range of right ankle motion was only diminished by 5 degrees
on dorsiflexion in May 1998, the limitation of motion was
objectively confirmed on this VA examination along with
findings of edema, tenderness and occasional right ankle
pain.  Consistent findings were reported by a private doctor
in July 1998, when there were loss of 10 degrees
dorsiflexion, obvious tissue swelling and pain.  X-rays
showed post-traumatic arthritis consistent with the severe
ankle fracture.  While these findings may not fully satisfy
the criteria for a compensable rating under Code 5271 (for
moderate limitation of motion), they do warrant a 10 percent
rating under 38 C.F.R. � 4.71a, Codes 5003, 5010.

On most recent examination in March 2003, it was noted that
the veteran had plantar flexion to about 40 degrees (10
degrees from a neutral position of 30 degrees plantar
flexion), and dorsiflexion of 3 degrees, continuing to
warrant a 10 percent rating for moderate limitation of right
ankle motion.

As the medical evidence of record shows a consistent history
of arthritis and limitation of motion (or moderate limitation
of motion) during the entire appeal period, the veteran's
residuals of a right ankle fracture warrant a 10 percent
rating from the effective date of service connection in June
1997.

Since more than moderate limitation of ankle motion is not
shown, a rating in excess of 10 percent is not warranted.
Additional factors which could provide a basis for a higher
rating have also been considered; however, the evidence does
not show episodes of increased pain, incoordination,
fatigability, flare-ups, or muscle atrophy.  While the
veteran reported pain, he also indicated that it is not so
severe that he currently receives any treatment for the
condition.  Furthermore, gait and station appeared normal,
and right ankle strength was normal.  Functional loss
warranting a rating in excess of 10 percent is not shown.

ORDER

A 10 percent rating is granted for the veteran's right ankle
disability, subject to the regulations governing payment of
monetary awards.

REMAND

On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) became law.  Regulations implementing the VCAA
have also been published.  The VCAA and implementing
regulations apply in the instant case.  In Quartuccio v.
Principi, 16 Vet. App. 183 (2002) the Court provided guidance
regarding notice requirements under the VCAA, indicating that
VA must adequately identify the evidence necessary to
substantiate the claim, the evidence presently of record, and
the veteran's and VA's respective responsibilities in
development of evidence.  Among VA's responsibilities in
development of the evidence, is assisting the veteran in
obtaining any identified records of pertinent medical
treatment that may be outstanding.

Here, at his November 2003 hearing the veteran testified that
he had recently started seeing a private doctor, Dr. S., for
all of his medical conditions.  While he specifically stated
that he had seen her on 4 to 5 occasions, the medical release
form obtained from the veteran only authorized release of
records from June 2003, the month of his initial visit (June
12, 2003).  Consequently, only one record of treatment (dated
June 12, 2003) was received from Dr. S.  Since the veteran
has specifically testified to having seen this doctor on four
or five occasions, VA is on notice that additional records of
pertinent medical treatment remain outstanding.  Along these
lines, we note that the file contains no other records of
ongoing medical treatment received since 2003.  Additional
development is indicated.
Furthermore, in Disabled American Veterans, et al. v.
Secretary of Veterans Affairs, 327 F.3d 1339, (Fed. Cir.
2003) (DAV), the United States Court of Appeals for the
Federal Circuit (Federal Circuit) determined that 38 C.F.R.
� 19.9(a)(2) was inconsistent with 38 U.S.C. � 7104(a).  The
Federal Circuit invalidated 38 C.F.R. � 19.9(a)(2) because,
in conjunction with 38 C.F.R. � 20.1304, it allowed the Board
to consider additional evidence without having to remand the
case to the agency of original jurisdiction (AOJ) for initial
consideration and without having to obtain the appellant's
waiver.  In June 2004, subsequent to the last review by the
AOJ in June 2003, the June 12, 2003 record from Dr. S. was
added to the claims file without waiver of initial
consideration by the AOJ.

It is also noteworthy that the May 2003 VA examination report
ordered pursuant to the January 2001 Board remand does not
note sufficient objective findings and medical opinions to
decide the claims on appeal.  Specifically, the examination
failed to address all of the veteran's reported symptoms and
did not identify which, if any, could be linked to a known
cause.  Hence, further examination is indicated.

Finally, during the course of the appeal, the criteria for
rating ankylosis and limitation of motion of the digits of
the hand (including the thumb) were amended, effective August
26, 2002, and now include the new Code 5228 .  The veteran
has not been notified of the changes in rating criteria.

Accordingly, the remaining matters are REMANDED for the
following:

1.  The RO must ensure that all VCAA
notice obligations are satisfied in
accordance with 38 U.S.C.A. �� 5102,
5103, and 5103A, implementing
regulations, interpretative precedent
Court decisions, and any other applicable
legal precedent.  In particular, the RO
should ensure that the veteran and his
representative are advised specifically
of what he needs to establish entitlement
to the benefits sought, what the evidence
shows, and of his and VA's respective
responsibilities in claims development.
The veteran and his representative should
be given the opportunity to respond.

2.  The veteran and his representative
should be provided copies of all
applicable criteria for rating his
residuals of a right thumb fracture, and
specifically, the new criteria pertaining
to limitation of thumb motion found at
38 C.F.R. � 4.71a, Code 5228.

3.  The veteran should also be requested
to identify all treatment providers, VA
and non-VA, who treated him for the right
thumb fracture residuals and for each of
the symptoms for which he seeks service
connection in this appeal.  Specifically
noted in this regard, are treatment
records from the 4 to 5 visits the
veteran testified he had with Dr. S.
since June 2003.  When the veteran
responds, and provides any necessary
authorizations, the named health care
providers should be contacted and asked
to provide copies of all clinical records
documenting their treatment, which are
not already in the claims folder.

4.  Then, the veteran should be afforded
a VA examination(s) to ascertain the
presence, and etiology, of his claimed
fatigue, joint aches and pains, Achilles
tendonitis, skin disability, and kidney
stones.  The veteran's claims folder must
be available to, and reviewed by, the
examiner(s) in conjunction with the
examination.  Any indicated testing
should be completed.   (a)  The
examiner(s) should note each reported
symptom pertaining to the claimed
disabilities.  (b)  The examiner(s)
should determine if there are any
objective medical indications that the
veteran is suffering from each reported
symptom.  (c)  If there are objective
indications that the veteran is suffering
symptoms of fatigue, joint aches and
pains, Achilles tendonitis, skin
disability, and/or kidney stones, the
examiner(s) should note whether it is at
least as likely as not that the
manifestations are attributable to a
known diagnostic disability or
disabilities.  In so doing, the
examiner(s) should reconcile his or her
conclusions with those of the examiners
on prior examinations.  If any
manifestation cannot be attributed to a
clinically diagnosed illness, the
examiner(s) should be asked to determine
if there is affirmative evidence that the
undiagnosed illness to which the symptom
is attributed was not incurred during
active service during the Gulf War, or
was caused by an intervening condition or
event subsequent to Gulf War service or
is the result of the veteran's abuse of
alcohol or drugs.  (d)  All opinions
expressed should be supported by
reference to pertinent evidence.  If the
examiner(s) disagree with any medical
opinions contained in the claims file,
the reasons for the disagreement should
be explained in detail.

5.  The RO should also arrange for the
veteran to be scheduled for an orthopedic
examination to ascertain the severity of
his residuals of a right thumb fracture.
The veteran's claims folder must be
reviewed by the examiner in conjunction
with the examination.  Any indicated
studies should be completed.  The
examiner must specifically note whether
the thumb is ankylosed, and whether there
is limitation of motion of the thumb as
described in Code 5228.  The examiner
should explain the rationale for all
opinions given.

6.  Upon completion of the development
requested by the Board and any other
development deemed appropriate by the RO,
the RO should review the veteran's
claims.  If any benefit sought on appeal
remains denied, the veteran and his
representative should be provided with an
appropriate supplemental statement of the
case (SSOC), and given the opportunity to
respond.

The case should then be returned to the Board.  The Board
intimates no opinion as to the ultimate outcome of this case.
The veteran needs to take no action until he is notified.
The purposes of this remand are to assist in development of
the claims and ensure compliance with the VCAA.  The
appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims
must be afforded expeditious treatment by the RO.  The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner.

            GEORGE R. SENYK
SHANE A. DURKIN
	             Veterans Law Judge
Veterans Law Judge
       Board of Veterans' Appeals
Board of Veterans' Appeals

_________________________________________
WAYNE BRAEUER
	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
FORM
JUN
2003
(RS)

4597
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