Citation Nr: 0418033	
Decision Date: 07/06/04    Archive Date: 07/21/04

DOCKET NO.  04-04 461	)	DATE
	)
	)


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


THE ISSUE

Entitlement to an increased disability rating for tinnitus, 
currently evaluated as 10 percent disabling.  


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Nancy S. Kettelle, Counsel




INTRODUCTION

The veteran had active service from November 1943 to May 
1946.  

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from an August 2003 decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Paul, 
Minnesota.  That decision, in part, granted service 
connection for tinnitus and assigned a 10 percent disability 
rating.  The veteran disagreed with the rating and initiated 
this appeal.  The appeal was perfected with the timely 
submission of the veteran's substantive appeal in May 2004.  

The record reflects that a motion to advance this case on the 
docket was filed on the veteran's behalf by his accredited 
representative in June 2004.  Taking into consideration the 
veteran's advanced age, his motion for advancement on the 
docket was granted.  See 38 C.F.R. § 20.900(c) (2003).

Issue not on appeal

The Board notes that during the course of this appeal the RO 
began development on the matter of service connection for 
inner ear disability.  On an Appeal Certification Worksheet 
dated in May 2004 the RO stated that the veteran's 
representative had withdrawn the claim for service connection 
for inner ear condition.  Accordingly, the Board will not 
address that matter.  See 38 C.F.R. § 20.204 (2003).  


FINDING OF FACT

The veteran has tinnitus.  




CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent 
for tinnitus are not met.  38 U.S.C.A. § 1155 (West 2002); 
38 C.F.R. § 4.87, Diagnostic Code 6260 (2002 and 2003); 
VAOPGCPREC 2-2003.


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran is seeking entitlement to an increased disability 
rating for his service-connected tinnitus, which is currently 
evaluated as 10 percent disabling.  He and his representative 
contend, in essence, that separate 10 percent ratings should 
be assigned for tinnitus in each ear.

In the interest of clarity, the Board will initially discuss 
certain preliminary matters.  The Board will then address the 
pertinent law and regulations and their application to the 
facts and evidence.

The Veterans Claims Assistance Act of 2000

The Board has given consideration to the provisions of the 
Veterans Claims Assistance Act of 2000 (the VCAA).  See 38 
U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002).  The VCAA 
includes an enhanced duty on the part of VA to notify a 
claimant as to the information and evidence necessary to 
substantiate a claim for VA benefits.  The VCAA also 
redefines the obligations of VA with respect to its statutory 
duty to assist claimants in the development of their claims.  
Regulations implementing the VCAA have been enacted.  See 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003).

Except for provisions pertaining to claims to reopen based on 
the submission of new and material evidence, the VCAA is 
generally applicable to all claims filed on or after the date 
of enactment, November 9, 2000, or filed before the date of 
enactment but not yet final as of that date.  However, for 
reasons expressed immediately below, the Board finds that 
resolution of the issue on appeal is based on the operation 
of law and that the VCAA is not applicable.  See Holliday v. 
Principi, 14 Vet. App. 280, 282-83 (2001) [the Board must 
make a determination as to the applicability of the various 
provisions of the VCAA to a particular claim].

In Manning v. Principi, 16 Vet. App. 534 (2002), citing 
Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001), the 
United States Court of Appeals for Veterans Claims (the 
Court) held that the VCAA has no effect on an appeal where 
the law, and not the underlying facts or development of the 
facts, is dispositive of the matter.  

Similarly, in a recent precedent opinion, VA's General 
Counsel held that VA is not required to provide notice of the 
information and evidence necessary to substantiate a claim, 
or to assist the veteran in developing evidence to 
substantiate a claim where that claim cannot be substantiated 
because there is no legal basis for the claim or because 
undisputed facts render the claimant ineligible for the 
claimed benefit.  See VAOGCPREC 5-2004.  VA General Counsel 
opinions are binding on the Board.  See 38 U.S.C.A. § 7104(c) 
(West 2002); 38 C.F.R. § 14.507 (2003).  
See also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) 
and Mason v. Principi, 16 Vet. App. 129, 132 (2002) [VCAA not 
applicable "because the law as mandated by statute and not 
the evidence is dispositive of the claim"].  

Moreover, VA's General Counsel has addressed the question of 
VCAA applicability under the specific circumstances at issue 
here.  VAOPGCPREC 2-2004 held that under 38 U.S.C. § 5103(a), 
VA is not required to provide notice of the information and 
evidence necessary to substantiate a claim for separate 
disability ratings for each ear for service-connected 
tinnitus because there is no information or evidence that 
could substantiate the claim, as entitlement to separate 
ratings is barred by current Diagnostic Code 6260 and by the 
previous versions of Code 6260 as interpreted by a precedent 
opinion of the General Counsel.

As this case deals with the issue of whether VA regulations 
allow for the assignment of separate disability ratings for 
tinnitus; and as the pertinent facts in this case are not in 
dispute, but application of pertinent provisions of the law 
and regulations will determine the outcome, the Board finds 
that no amount of additional evidentiary development would 
change the outcome of this case, and therefore the provisions 
of the VCAA are not applicable.  

The Board acknowledges the veteran's request, made through 
his representative, that he be afforded a VA audiology 
examination.  See VA Form 646, Statement of Accredited 
Representative in Appealed Case, dated May 7, 2004.  In so 
doing, the veteran appears to challenge the medical premise 
of, or seeks to distinguish his case from, a VA General 
Counsel opinion that concluded the origin of tinnitus is in 
the brain as opposed to the inner ears.  See VAOPGCPREC 2-
2003.  The veteran has provided no medical evidence refuting 
the conclusions reached by the VA General Counsel opinion.  
Instead, he simply states that he has a strong belief that 
his tinnitus is distinctly in each individual ear and that 
the medical references cited in VA General Counsel opinion 
are subjective in nature and cannot be applied to his 
situation without a pertinent medical examination and 
opinion.  

As stated above, VA General Counsel opinions are binding on 
the Board; the Board is not free to challenge General Counsel 
opinions.  See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. 
§§ 14.507, 19.5 (2003).  Clearly, it is not the Board's 
responsibility to obtain medical evidence that a veteran 
hopes may contradict a VA General Counsel opinion.  See 
Counts v. Brown, 6 Vet. App. 473, 478-9 (1994) and Gobber v. 
Derwinski, 2 Vet. App. 470, 472 (1992) [VA's . . . . "duty to 
assist" is not a license for a "fishing expedition" to 
determine if there might be some unspecified information 
which could possibly support a claim].  Accordingly, the 
Board rejects the veteran's request for a VA audiology 
examination.

The Board adds that general due process concerns have been 
satisfied in connection with this appeal.  See 38 C.F.R. 
§ 3.103 (2003).  The veteran was afforded a VA examination in 
June 2003 and has in fact been given notice that complies 
with VCAA requirements.  The veteran and his representative 
have been accorded ample opportunity to present evidence and 
argument in support of his appeal.  The veteran was informed 
of his right to a hearing and was presented several options 
for presenting personal testimony; in a February 2004 
statement from his representative, accepted as a substantive 
appeal, he indicated that he did not want any type of hearing 
regarding this issue.

Pertinent Law and Regulations

Disability ratings - in general

Disability ratings are based on the average impairment of 
earning capacity resulting from disability.  The percentage 
ratings for each diagnostic code, as set forth in VA's 
Schedule for Rating Disabilities, codified in 38 C.F.R. Part 
4, represent the average impairment of earning capacity 
resulting from disability.  Generally, the degrees of 
disability specified are considered adequate to compensate 
for a loss of working time proportionate to the severity of 
the disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 3.321(a), 4.1 (2003).

Fenderson considerations

In Fenderson v. West, 12 Vet. App. 119 (1999), it was held 
that evidence to be considered in the appeal of an initial 
assignment of a rating disability was not limited to that 
reflecting the then current severity of the disorder.  
Compare Francisco v. Brown, 7 Vet. App. 55, 58 (1994) [where 
entitlement to compensation has already been established and 
an increase in the disability rating is at issue, the present 
level of disability is of primary concern].  In Fenderson, 
the Court also discussed the concept of the "staging" of 
ratings, finding that, in cases where an initially assigned 
disability evaluation has been disagreed with, it was 
possible for a veteran to be awarded separate percentage 
evaluations for separate periods based on the facts found 
during the appeal period.

Evaluation of tinnitus

In an August 2003 rating decision, service connection was 
granted for tinnitus, evaluated as 10 percent disabling, 
effective March 11, 2003.  The veteran perfected an appeal as 
to the rating assigned.  

The regulations pertaining to the evaluation of diseases and 
injuries of the ears were revised effective June 10, 1999.  
See 64 Fed. Reg. 25,202 (1999) [codified at 38 C.F.R. § 4.85-
4.87 (2002)].  The regulation was again revised in May 2003, 
effective June 12, 2003.  See 68 Fed. Reg. 25,822 (2003).

Effective prior to June 12, 2003, Diagnostic Code 6260 
provides a single level of disability.

10% Tinnitus, recurrent. 

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

See 38 C.F.R. § 4.87, Diagnostic Code 6260 (2002).

Effective June 13, 2003, Diagnostic Code 6260 also provides a 
single level of disability.  

10% Tinnitus, recurrent. 

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

Note (2): Assign only a single evaluation for recurrent 
tinnitus, whether the sound is perceived in one ear, both 
ears, or in the head.

Note (3): Do not evaluate objective tinnitus (in which the 
sound is audible to other people and has a definable cause 
that may or may not be pathologic) under this diagnostic 
code, but evaluate it as part of any underlying condition 
causing it.

See 38 C.F.R. § 4.87, Diagnostic Code 6260 (2003).

As will be explained in greater detail below, under all 
versions of the regulation, the maximum rating which is 
available for tinnitus is 10 percent.  

Standard of review

After the evidence has been assembled, it is the Board's 
responsibility to evaluate the entire record.  38 U.S.C.A. § 
7104(a) (West 2002).  When there is an approximate balance of 
evidence regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38 
U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2003) 
[reasonable doubt to be resolved in veteran's favor].  In 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
stated that "a veteran need only demonstrate that there is 
an 'approximate balance of positive and negative evidence' in 
order to prevail."  To deny a claim on its merits, the 
preponderance of the evidence must be against the claim.  
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing 
Gilbert, 1 Vet. App. at 54.

Analysis

The veteran is seeking entitlement to an increased disability 
rating for his service-connected tinnitus.  In essence, by 
and through the arguments of his representative he contends 
that VA regulations permit the assignment of separate 
disability ratings for each ear, citing in particular 
38 C.F.R. § 4.25.  See VA Form 646, Statement of Accredited 
Representation in Appealed Case dated May 7, 2004.

Discussion

The medical evidence establishes that the veteran has 
tinnitus.  Service connection has been granted for tinnitus, 
and the tinnitus has been rated as 10 percent disabling.  In 
essence, it is the veteran's contention that he should be 
assigned separate 10 percent ratings for tinnitus in each ear 
because the disorder is bilateral.  

The Board initially notes that in the case of Wanner v. 
Principi, 17 Vet. App. 4 (2003), the Court remanded a claim 
for separate evaluations for tinnitus for consideration of 
38 C.F.R. § 4.25 (b) [providing that "[e]xcept as otherwise 
provided in this schedule, the disabilities arising from a 
single disease entity [...] are to be rated separately as are 
all other disabling conditions, if any"].  The Court did not 
decide the issue of whether separate ratings could be 
assigned for tinnitus, but simply remanded the issue to the 
Board for a more thorough discussion of the matter.  The 
Court ordered the Board to consider the veteran's argument, 
initially raised before the Court, that he was entitled to 
separate 10 percent ratings, one for each ear, for bilateral 
tinnitus.  The Court intimated no opinion as to the outcome 
of the case.  

In a decision very recently promulgated on June 2, 2004, 
Wanner v. Principi, No. 03-7169 (Fed. Cir. Jun. 2, 2004), the 
United States Court of Appeals for the Federal Circuit held 
that the Court lacked jurisdiction to review the content of 
Diagnostic Code 6260, emphasizing that the Secretary's 
discretion over the rating schedule was "insulated from 
judicial review," with one recognized exception limited to 
constitutional challenges.  

Setting aside the potential impact of the Federal Circuit's 
opinion in Wanner, the Court's current jurisprudence with 
respect to claims of entitlement to increased disability 
ratings for tinnitus is that the Board must provide "reasons 
and bases" for its decision (as it must in all cases), 
specifically with respect to 38 C.F.R. § 4.25.  The Board 
will proceed to do so.

Due to the Court's concerns, the Board requested an opinion 
from VA's Office of General Counsel (OGC) on this matter.  In 
VAOPGCPREC 2-2003, OGC noted that "tinnitus is the perception 
of sound in the absence of an acoustic stimulus."  VAOPGCPREC 
2-2003 at p. 2, citing The Merck Manual 665 (17th Ed. 1999).  
The OGC referenced the notice of proposed rulemaking 
resulting in the amendment to Diagnostic Code 6260 in May 
2003 for the medical explanation of tinnitus:

True (subjective) tinnitus does not originate in 
the inner ear, although damage to the inner ear may 
be a precursor of subjective tinnitus.  It is 
theorized that in true tinnitus the brain creates 
phantom sensations to replace missing inputs from 
the damaged inner ear, similar to the brain's 
creation of phantom pain in amputated limbs. . . .

True tinnitus, i.e., the perception of sound in the 
absence of an external stimulus, appears to arise 
from the brain rather than the ears.

See Schedule for Rating Disabilities: Evaluation of Tinnitus, 
67 Fed. Reg. 59,033 (Sept. 19, 2002) [citing Diseases of the 
Ear, H. Ludman, and T. Wright, 6th ed., chapter 11; Phantom 
auditory perception (tinnitus): mechanisms of generation and 
perception, Neuroscience Research 8:221-2, P. Jasterboff, 
1990; and Mechanisms of Tinnitus, Allyn and Bacon, 1995, J. 
Vernon and A. Moller (Eds)].

Based on this medical explanation the OGC found that "the 
perception of noise is the disability identified in true 
tinnitus, and the source of this perceived noise is not in 
either or both ears.  The undifferentiated nature of the 
source of the noise that is tinnitus is the primary basis for 
VA's practice, as reflected in the notice of proposed 
rulemaking, of rating tinnitus as a single disease entity."  
VAOPGCPREC 2-2003, p. 3.  

VA OGC therefore determined that the both original and 
revised versions of Diagnostic Code 6260 authorized a single 
10 percent rating for tinnitus, regardless of whether it was 
perceived as unilateral, bilateral, or in the head, and 
precluded the assignment of separate ratings for bilateral 
tinnitus.  The Board is bound to follow this opinion.  See 
38 U.S.C.A. § 7104(c) (West 2002).

The Board initially finds that it can consider this matter 
without the necessity of remanding it to the RO.  See Bernard 
v Brown, 4 Vet. App. 384 (1993).  The resolution of this case 
is in essence dependent upon the OGC opinion, which is of 
course as binding on the ROs as it is on the Board.  Thus, 
remanding the case to the RO would accomplish nothing except 
to further delay resolution of this case.  

Turning specifically to 38 C.F.R. § 4.25, that provision 
stands for the proposition that in general, all disabilities, 
including those arising from a single disease entity, are 
rated separately.  See 38 C.F.R. § 4.25 (2003).  However, a 
claimant may not be compensated twice for the same 
symptomatology as "such a result would overcompensate the 
claimant for the actual impairment of his earning capacity." 
See Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would 
result in pyramiding, which is contrary to the provisions of 
38 C.F.R. § 4.14.

Thus, the provisions of 38 C.F.R. § 4.25(b) (2003) stipulate 
that the disabilities arising from a single disease entity 
(such as arthritis, multiple sclerosis, cerebral vascular 
accident, etc.) are to be rated separately.  However, the 
determination by OGC that tinnitus, either unilateral or 
bilateral, is to be rated as a single disease entity, in 
essence constitutes a determination that tinnitus is a 
unitary disability that cannot be divided into distinct and 
diverse impairment of separate body parts.

The current version of Diagnostic Code 6260 specifically 
prohibits such separate evaluations, which exempts the 
current version altogether from the reach of 38 C.F.R. § 4.25 
(b), as indicated in the language "[e]xcept as otherwise 
provided in this schedule."  

The former version of the rating schedule did not mention 
separate evaluations for tinnitus one way or the other, 
although a fair reading of the rating criteria would lead to 
the conclusion that 10 percent was the maximum rating 
provided for tinnitus, and this was in fact VA's practice.  
Indeed, VA General Counsel Opinion VAOPGCPREC 2-2003 
specifically stated "The intended effect of this action is 
to codify current standard VA practice by stating that 
recurrent tinnitus will be assigned only a single 10-percent 
evaluation whether it is perceived in one ear, both ears, or 
somewhere in the head."  In any event, separate evaluations 
are specifically prohibited by VA General Counsel Opinion 
VAOPGCPREC 2-2003, which the Board is bound to follow.  

Accordingly, the Board has considered the applicability of 
38 C.F.R. § 4.25(b) and finds that its provisions are not 
applicable to tinnitus, do not require the Board to award 
separate evaluations for tinnitus in each ear, and the Board 
is in fact prohibited from so doing.  The Board is not free 
to accept or reject General Counsel opinions on its own 
motion.  Rather, the law expressly requires that the Board 
"shall be bound in its decisions by . . . the precedent 
opinions of the chief legal officer of the Department."  
38 U.S.C.A. § 7104(c) (West 2002); Splane v. West, 216 F.3d 
1058 (Fed. Cir. 2000).    

The Board finds no merit in the representative's assertion 
that the new regulation cannot be applied to this case 
because it was issued after the original date of the 
veteran's claim (filed in March 2003).  It is clear that the 
new regulation cannot be applied earlier than its own 
effective date.  See 38 U.S.C.A. § 5110(g) (West 2002); 38 
C.F.R. § 3.114 (2003); VAOPGCPREC. 3-2000; see also Rhodan v. 
West, 12 Vet. App. 55, 57 (1998), vacated on other grounds by 
251 F.3d 166 (Fed. Cir. 1999).  There is, however, no legal 
authority specifically supporting the proposition that the 
application of a regulation is limited by the date of filing 
of a claim.  

In support of his assertion, the veteran's representative has 
argued that VA General Counsel's opinion in VAOPGCPREC 7-
2003, which discusses the retroactive application of statutes 
and regulations, moots out the previous opinion in VAOPGCPREC 
2-2003.  The representative specifically cited the portion of 
VAOPGCPREC 7-2003 in which it as stated that if a statue or 
regulation is silent, VA must determine whether applying the 
new provision to claims that were pending when it took effect 
would produce genuinely retroactive effects.  The 
representative argued that in this claim, that is exactly 
what the decision to deny an increased rating above 10 
percent for tinnitus accomplishes.

VA General Counsel effectively addressed the representative's 
argument in VAOPGCPREC 2-2003, wherein it was stated that the 
recent amendment to Diagnostic Code 6260 merely restated the 
law as it previously existed, and that as a result neither 
the prior or amended regulation authorized separate ratings 
for tinnitus.  In other words, VA regulations currently, and 
previously, do not allow for separate ratings for so-called 
"bilateral" tinnitus.  VAOPGCPREC 2-2003 merely explains 
these regulations; it does not alter their effective dates.  
Hence, in the Board's view, the General Counsel's opinion in 
VAOPGCPREC 7-2003 provides no legal basis to undermine 
VAOPGCPREC 2-2003.

Any additional criticisms of VAOPGCPREC 2-2003 found in the 
representative's presentation cannot be entertained by the 
Board.  As noted above, the Board is bound by law to follow 
that opinion. 

As addressed in the discussion of the applicability of the 
VCAA to this case, the veteran has not presented or 
identified any medical or other evidence which challenges the 
medical premise of the VA OGC opinion.  He simply states that 
he has a strong belief that his tinnitus is distinctly in 
each individual ear.  While the veteran is competent to 
report his own symptomatology, he is not, however, competent 
to attribute symptoms to a particular cause.  See Espiritu v. 
Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. 
§ 3.159 (a)(1) [competent medical evidence means evidence 
provided by a person who is qualified through education, 
training, or experience to offer medical diagnoses, 
statements, or opinions].  Accordingly, the veteran's belief 
as to the origin of his tinnitus is entitled to no probative 
weight.

Fenderson considerations 

The veteran has been assigned a 10 percent rating for 
service-connected tinnitus effective March 11, 2003, the date 
of receipt of his claim.

In this case, the medical evidence of record appears to 
support the proposition that the veteran's service-connected 
tinnitus has not changed appreciably over the appeal period.  
Based on the record, the Board finds that a 10 percent 
disability rating, which is the maximum rating available, was 
properly assigned for the entire period.

Conclusion

For the reasons and bases expressed above, the Board has 
determined that the preponderance of the evidence is against 
the appeal to establish entitlement to a disability rating in 
excess of 10 percent for tinnitus.  The Board's decision is 
based on a reading of the appropriate regulation, as 
interpreted by VA OGC.  Because of the absence of legal merit 
or lack of entitlement under the law, the claim must be 
denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 
426 (1994).  The benefit sought on appeal is denied.

The Board notes in passing that the veteran has not in 
connection with this appeal indicated, nor presented evidence 
to support the premise, that his service-connected tinnitus 
results in marked interference with employment or frequent 
periods of hospitalization as to render impracticable the 
application of the regular schedular standards.  See 
38 C.F.R. § 3.321(b) (2003) [extraschedular rating criteria].  
As noted elsewhere in this decision, his sole contention is 
that VA regulations allow for the assignment of separate 10 
percent ratings for tinnitus.  Accordingly, in the absence of 
the matter being raised by the veteran or adjudicated by the 
RO, the Board will not address the veteran's entitlement to 
an extraschedular rating.  See Bernard v. Brown, 4 Vet. App. 
384 (1993).   In the event the veteran believes that an 
exceptional or unusual disability picture is present which 
warranted consideration of an extraschedular rating by 
appropriate VA officials, he may raise this with the RO.


ORDER

Entitlement to an increased disability rating for tinnitus is 
denied.  



	                        
____________________________________________
	Barry F. Bohan
	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 (423)832-4678. 

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 johnny28@example.org. 

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




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