judge_norm: JOHN J CROWLEY

condition: skin

text:
Citation Nr: 0820000
Decision Date: 06/18/08    Archive Date: 06/25/08

DOCKET NO.  03-22 381	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for malignant skin
neoplasms, claimed as due to exposure to ionizing radiation.

REPRESENTATION

Appellant represented by:	Vietnam Veterans of America

ATTORNEY FOR THE BOARD

T. Mainelli, Counsel

INTRODUCTION

The veteran served on active duty from November 1942 to July
1946, and from July 1947 to June 1958.

This case comes before the Board of Veterans' Appeals (Board)
on appeal from an October 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.  The claims file was subsequently
transferred to the Waco, Texas, RO.

In November 2006, the Board remanded the claim to the RO, via
the Appeals Management Center (AMC) in Washington, D.C., for
further development.

FINDINGS OF FACT

1.  The veteran's total external, inhaled and ingested
ionizing radiation exposure during service was less than one
rem.

2.  The veteran's malignant skin neoplasms, diagnosed as
basal cell carcinoma and squamous cell carcinoma, were first
shown medically many years after his last period of active
service, were not caused by his exposure to ionizing
radiation in service and are not shown to be otherwise
related to event(s) during active service.

CONCLUSION OF LAW

Malignant skin neoplasms, including basal cell carcinoma and
squamous cell carcinoma, were not incurred in or aggravated
by service, and may not be presumed to have been so incurred.
38 U.S.C.A. �� 1101(3), 1110, 1112, 1131, 1137, 5107 (West
2002 & Supp. 2007); 38 C.F.R. �� 3.303, 3.307, 3.309, 3.311
(2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection is established for disability resulting
from personal injury suffered or disease contracted in the
line of duty, or for aggravation of a preexisting injury
suffered or disease contracted in the line of duty, during
periods of active wartime military service.  38 U.S.C.A.
�� 1110, 1131; 38 C.F.R. �� 3.303, 3.304.  Service connection
may also be granted for any disease 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.

Service connection based upon exposure to ionizing radiation
can be awarded on three different legal bases.  Service
connection may be established under the provisions of
38 C.F.R. � 3.309(d), 38 C.F.R. � 3.311, or on the basis of
direct, or in certain cases presumptive, service connection.
See Rucker v. Brown, 10 Vet. App. 67, 71 (1997).

First, service connection for a radiation-exposed veteran may
be established on a presumptive basis under 38 U.S.C.A.
� 1112(c)(2) or 38 C.F.R. � 3.309(d).  However, basal cell
carcinoma and squamous cell carcinoma are not specifically
listed as presumptive diseases under these provisions.  As
such, these provisions do not apply.

As to the second method, 38 C.F.R. � 3.311 provides special
procedures for veteran who was exposed to ionizing radiation
in service and manifests a radiogenic disease to assist a
veteran prove his or her claim on a direct basis.  Ramey v.
Gober, 120 F.3d 1239 (Fed. Cir. 1997).

This veteran has been presumed to have been exposed to
ionizing radiation while conducting an overflight of Nagasaki
in approximately December 1945.  His malignant skin neoplasms
first manifested five years or more after his radiation
exposure.  Accordingly, he meets the criteria for entitlement
to the specialized development procedures of 38 C.F.R.
� 3.311(b).

As to the third method, service connection may be granted
under the general laws and regulations governing VA
compensation entitlement.  38 U.S.C.A. �� 1110, 1112, 1131,
1137.  See Combee v. Brown, 34 F 3d. 1039 (Fed. Cir. 1994).
In order to qualify for entitlement to compensation under
38 U.S.C.A. �� 1110 and 1131, a claimant must prove the
existence of (1) a disability and (2) that such disability
has resulted from a disease or injury that occurred in the
line of duty.  Sanchez-Benitez v. Principi, 259 F.3d 1356,
1360-61 (Fed. Cir. 2001).  Service incurrence for certain
chronic diseases such as a malignant tumor will be presumed
if manifested to a compensable degree within a year after
service.  38 U.S.C.A. �� 1112, 1113, 1137; 38 C.F.R.
�� 3.307, 3.309.

The veteran served on active duty from November 1942 to July
1946, and from July 1947 to June 1958.  Unfortunately, the
National Personnel Records Center (NPRC) has reported that
the veteran's service medical records are presumed to have
been destroyed.  The available Surgeon General's Office (SGO)
extracts do not show any treatment for malignant skin
neoplasms.  Thus, the service medical evidence provides very
limited evidence against this claim.

The post-service medical records first document treatment for
basal cell carcinoma in 1988, and squamous cell carcinoma in
2004.  The United States Court of Appeals for the Federal
Circuit has determined that such a lapse of time is a factor
for consideration in deciding a service connection claim.
Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000).

As a malignant skin neoplasm was not shown to have manifested
within one year from service, the presumptive provisions of
38 C.F.R. � 3.309(a) do not apply.

The veteran has claimed ionizing radiation exposure while
performing duties in Japan in 1945 and 1946.  He primarily
reports service in Yokohama and Tachikawa, where he believes
he may have been contaminated with ionizing radiation.  He
recalls that, on or about December 3, 1945, he conducted an
overflight of Nagasaki.  He variously reports this flight as
occurring "below 3000 feet," "at 1000 feet and at 195
miles per hour," or "500 feet."

In accordance with 38 C.F.R. � 3.311, the RO has requested a
radiation dose estimate from the Defense Threat Reduction
Agency (DTRA).

In October 2002, DTRA indicated that the veteran's unit
morning reports documented his presence at either Tachikawa
or Irumigawa during his entire tour of duty from October 1945
to May 1946.  Tachikawa and Irumigawa were approximately 550
miles from Nagasaki and 400 miles from Hiroshima.  Such facts
provide evidence against this claim as it clearly indicates
the veteran was stations many miles away from both cites.

DTRA calculated that a hypothetical aircraft flying over
Nagasaki at an altitude of 5,000 feet and a speed of 250
miles per hour, as early as four months after the detonation,
would have resulted in an exposure of less than 0.001 rem.
It was further noted that the veteran was not documented as
being among the American Occupation Forces in Hiroshima or
Nagasaki, Japan.

In July 2004, the RO obtained a new dose estimate based upon
a May 8, 2003, report from the National Research Council
(NRC) which concluded that DTRA may have underestimated the
amount of ionizing radiation to which some veterans were
exposed.

In October 2004, the DTRA provided a revised dose estimate of
the veteran's probable ionizing radiation exposure in
service.  DTRA concluded that the veteran's "worst case"
dose from external radiation, inhalation and ingestion was
less than 1 rem, which was in accord with the NRC
recommendations in its May 8, 2003 report entitled "A Review
of the Dose Reconstruction Program of the Defense Threat
Reduction Agency."

DTRA noted that the NRC report concluded that "the dose to
even the most exposed of the occupation troops in Japan from
both internal and external exposure was probably well below 1
rem."

In accordance with 38 C.F.R. � 3.311(c), in October 2007, the
Director of the Compensation and Pension Service requested
opinion from VA's Under Secretary for Health for preparation
of a dose estimate of the veteran's ionizing radiation
exposure in service, and opinion as to the relationship
between the veteran's exposure to ionizing radiation and the
development of his malignant skin neoplasms.  In addition to
the dose estimate provided by DTRA, the Under Secretary for
Health was provided the veteran's history of ionizing
radiation exposure at age 21, cancer being diagnosed 32 years
after his exposure, and no known history of other carcinogen
exposure or family history of disease.  The Under Secretary
for Health was also advised of a physician statement stating
that the veteran's extensive pre-malignant skin lesions were
probably partially related to his radiation exposure during
World War II.

In a memorandum dated on October 25, 2007, the VA Chief
Public Health and Environmental Hazards Officer (CPHEHO)
estimated that the veteran was exposed to a dose of ionizing
radiation less than 1 rem based on the DTRA letter, and
opined that it was unlikely that the veteran's skin cancers
could be attributed to his exposure to ionizing radiation in
service.  This opinion was based upon review of medical and
scientific reports such as the Health Effects of Exposure to
Low Levels of Ionizing Radiation (BEIR V) (1990), Skin tumor
risk among atomic-bomb survivors in Japan, Cancer Causes and
Control, Ron et. al., Volume 9, (1998), Malignant Melanoma
and Other Second Cutaneous Malignancies in Cutaneous T-Cell
Lymphoma, Archives of Dermatology (April 1995), National
Committee on Radiation Protection and Measurement reports 104
(1990) and 115 (1993), and Fink and Bates, Melanoma and
Ionizing Radiation: Is There a Causal Relationship?,
Radiation Research (November 2005).  VA's CPHEHO also
calculated the likelihood that the veteran's exposure to
ionizing radiation was responsible for his malignant skin
neoplasms according to the National Institute for
Occupational Safety and Health (NIOSH) version of the
Interactive Radioepidemiological Program (IHEP) software
program.

The Board finds that the CPHEHO opinion is highly probative
evidence against this claim.  The Board notes that this
opinion takes into account the factors listed in 38 C.F.R.
� 3.311(e), and supports the conclusion citing to "sound
scientific evidence" representing the current state of
medical knowledge.  See generally 38 C.F.R. � 3.311(c)(3).

On October 29, 2007, in an Advisory Opinion also obtained in
accordance with 38 C.F.R. � 3.311, the Director of the
Compensation and Pension Service indicated that a review of
the evidence had been undertaken in its entirety.  The
Director, citing to the medical opinion from VA's CPHEHO,
stated that there was no reasonable possibility that the
veteran's skin cancers could be attributed to his
occupational exposure to ionizing radiation during military
service.

The Board finds that the Director, Compensation and Pension
Service's Advisory opinion is highly probative evidence
against this claim.  The Board notes that the Director's
mandate includes consideration as to whether sound scientific
and medical evidence supports a favorable conclusion that is
favorable to the claim.  See 38 C.F.R. � 3.311(c)(1)(i),
(c)(3).  This opinion is also based on an individualized dose
estimate.  See 38 C.F.R. � 3.311(a)(1).

In November 2007, the veteran underwent an additional VA
examination.  This examiner diagnosed actinic keratoses over
the veteran's face, scalp and hands, and status post excision
of basal cell cancers and squamous cell cancers on the scalp,
nose and upper left back.  The examiner commented that, while
the veteran had always worn a hat, his history of farming and
blue eyes increased his risk of ultraviolet damage from
sunlight.  The examiner further observed that the veteran's
exposure to ionizing radiation was brief with a "quite
small" dosage.  The examiner found that the veteran's blue
eyes and locations of cancers indicated that the main cause
for his skin cancers involved ultraviolet light from the sun,
which had a cumulative effect over many years time.  The
examiner further found that it was not at least as likely as
not that the veteran's skin cancers were related to ionizing
radiation in service.

The Board finds that this opinion also provides strong
probative evidence against this claim.  The Board notes that
this opinion was based on an individualized dose estimate as
well as physical examination of the veteran, which revealed
non-service related risk factors for the veteran's skin
cancers.

The Board recognizes the existence of favorable medical
opinion in this case.  In December 2001, the veteran's
treating physician wrote an opinion stating that the veteran
had extensive pre-malignant skin lesions which were
"probably partially" related to the veteran's in-service
radiation exposure.

The weight the Board places on a medical professional's
opinion depends on factors such as the reasoning employed by
the medical professional and whether or not, and the extent
to which, he or she reviewed prior clinical records and other
evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).
The Board also takes into account the physician's knowledge
and skill in analyzing the data, and the medical conclusion
the physician reaches.  See Guerrieri v. Brown, 4 Vet. App.
467, 470-471 (1993).  It is the Board's responsibility to
make determinations regarding the credibility and weight to
be given to the evidence.  See Hayes v. Brown, 5 Vet. App.
60, 69-70 (1993).

The Board finds that the December 2001 private physician
opinion is clearly outweighed by the opinions set forth by
VA's CPHEHO, VA's Director of Compensation and Pension, and
the November 2007 VA examiner.  The veteran's private
physician does not provide any rationale for the conclusion
reached, including an understanding of the nature of the
veteran's probable ionizing radiation dose exposure in
service.  This is a substantial defect in the opinion.

As reflected in the CPHEHO opinion, the level of the
veteran's probable ionizing radiation exposure is one of the
main determinants of causation.  The BIER V report cited by
the CPHEHO attributed skin cancer to high doses of ionizing
radiation exposure (several hundred rads).  Additionally, the
NIOSH software computation utilized by the CPHEHO calculates
the likelihood based, in part, upon the level of the
screening dosages.

By comparison, the private examiner had no knowledge of
DTRA's dose estimate, and did not reference any "sound
scientific evidence" to support the opinion.  See generally
38 C.F.R. � 3.311(c)(3).

Simply stated, the available SGO records, the post-service
medical record, and the VA directed evaluations provide
highly probative evidence against this claim, outweighing the
December 2001 private examiner opinion and the veteran's
contentions.

As noted above, the veteran's skin cancers first manifested
many years after service, and the preponderance of the
evidence weighs against a finding that his skin cancers are
related to his ionizing radiation exposure in service.  There
is no competent evidence that, other than the ionizing
radiation exposure, the veteran's skin cancers are otherwise
attributable to service.  See Combee, 34 F 3d. 1039 (Fed.
Cir. 1994).  Thus, there is no basis to support an award of
service connection in this case under the three different
legal bases identified above.

In reaching its decision under 38 C.F.R. � 3.311, the Board
has taken the factors as listed in 38 C.F.R. � 3.311(e) into
consideration, as mandated by the Court in Hilkert v. West,
12 Vet. App. 145 (1999).  As noted above, VA's Director of
Compensation and Pension identified these factors for VA's
CPHEHO in requesting a medical opinion in the case.  The
Board has also given consideration to the veteran's argument
that DTRA underestimated his radiation dose as he recalls his
Nagasaki flyover as involving a lower altitude and airspeed
than assumed by DTRA.  However, DTRA assumed a "worst case"
scenario of less than 1 rem which is higher than most exposed
occupation troops stationed on the ground.  Thus, the Board
finds no rational basis to find fault in DTRA's dose
estimate.  In summary, the Board finds that when the entirety
of the evidence is considered, the evidence does not warrant
a grant of the benefit sought.

With respect to the veteran's own contentions, a layperson is
generally not capable of opining on matters requiring medical
knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997).
See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing
Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson
without the appropriate medical training and expertise is not
competent to provide a probative opinion on a medical matter,
to include a diagnosis of a specific disability and a
determination of the origins of a specific disorder).  Lay
testimony is competent, however, to establish the presence of
observable symptomatology and "may provide sufficient
support for a claim of service connection."  Layno v. Brown,
6 Vet. App. 465, 469 (1994).

When a condition may be diagnosed by its unique and readily
identifiable features, the presence of the disorder is not a
determination "medical in nature" and is capable of lay
observation.  In such cases, the Board is within its province
to weigh that testimony and to make a credibility
determination as to whether that evidence supports a finding
of service incurrence and continuity of symptomatology
sufficient to establish service connection.  See Barr v.
Nicholson, 21 Vet. App. 303 (2007).

Lay evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent to
identify the medical condition, (2) the layperson is
reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a later
diagnosis by a medical professional.  Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007).

The veteran has reported treatment for a "lesion" on his
right cheek while stationed in Tachikawa Air Force Base in
1945.  This description, in and of itself, is insufficient
evidence to determine that a malignant skin neoplasm first
manifested in service.  Notably, the veteran did not describe
this lesion as being diagnosed as a malignant neoplasm.
Furthermore, the first skin lesion warranting surgical
intervention occurred in 1988, at which time the veteran
reported the manifestation of the skin lesion two years
previous.  When his available SGO reports are considered in
conjunction with the post-service medical record (which
indicates that skin cancer began many years after service),
the Board's finds that the medical evidence outweighs the
veteran's implied contention that this unidentified lesion
may have been a manifestation of skin cancer in service.

Furthermore, the veteran's contentions that his skin cancers
are related to participation in a radiation risk activity
that occurred many years ago are not a contention capable of
lay diagnosis.  See generally Espiritu, supra.

In reaching this decision, the Board has considered the
doctrine of reasonable doubt, however, the preponderance of
the evidence is against the veteran's claim, and the doctrine
is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49
(1990).

As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a);
38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002).  Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. � 3.159(b)(1).  This notice must be provided prior
to an initial unfavorable decision on a claim by the agency
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court
held that, upon receipt of an application for a service-
connection claim, 38 U.S.C.A. � 5103(a) and 38 C.F.R.
� 3.159(b) also require VA to notify a claimant that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.

In this case, two separate pre-adjudicatory RO letters dated
in April 2002 advised the veteran of the evidentiary
requirements for substantiating his claim on direct and
presumptive bases.  He was further advised of the types of
evidence and information deemed necessary to substantiate his
claim involving exposure to ionizing radiation.  These
letters advised him of the relative duties on the part of
himself and VA in developing his claim.

The veteran's VCAA notice has been defective to the extent
that, prior to initial adjudication, he was not specifically
notified to submit all evidence and information in his
possession pertinent to his claim, and that he was not
advised how VA determines disability ratings and effective
dates of awards.  However, these notice defects were cured
with readjudication of his case in the December 2007
Supplemental Statement of the Case (SSOC).  See Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett
v. Nicholson, 20 Vet. App. 370, 376 (2006).

Furthermore, the Board observes that the veteran has
demonstrated his actual knowledge of the evidentiary
requirements in this case by submitting a private medical
opinion supportive of his claim.  As the claim is denied, the
issues of an initial rating and effective date of award are
not implicated in this case.  Thus, any potential notice
errors in this case have not resulted in any prejudice to the
veteran.  See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir.
2007),

VA has a duty to assist the veteran in the development of the
claims.  This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.

The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran.  See Bernard v. Brown, 4
Vet. App. 384 (1993).  The veteran's service medical records
are not available, and the RO has obtained alternative
sources of evidence through SGO records.  The RO has also
obtained all private and VA medical records identified by the
veteran as relevant to his claim.

The issue on appeal is based on a claim that malignant skin
neoplasms are secondary to exposure to ionizing radiation
during service, and the procedures mandated at 38 C.F.R.
� 3.311 have been satisfied, to include obtaining dose
estimates from DTRA and the Under Secretary for Health, a
search for a Record of Occupational Exposure to Ionizing
Radiation (DD Form 1141) and opinions from VA's Director of
Compensation and Pension and VA's CPHEHO.  Furthermore, an
additional medical opinion was obtained from a VA examiner in
November 2007.  See McClendon v. Nicholson, 20 Vet. App. 79,
84 (2006); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed.
Cir. 2003).  The Board concludes, therefore, that a decision
on the merits at this time does not violate the VCAA, nor
prejudice the veteran under Bernard v. Brown, 4 Vet. App. 384
(1993).

ORDER

The claim of entitlement to service connection for malignant
skin neoplasms, claimed as secondary to exposure to ionizing
radiation in service, is denied.

____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: GEORGE R SENYK

disposition: denied

text:
Citation Nr: 0821000
Decision Date: 06/26/08    Archive Date: 06/30/08

DOCKET NO.  06-21 482A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a bilateral foot
disability.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

S. Armstrong, Legal Intern

INTRODUCTION

The appellant is a veteran who served on active duty from
October 23, 1944 to December 4, 1944.  This matter is before
the Board of Veterans' Appeals (Board) on appeal from a March
2006 rating decision of the Waco, Texas Department of
Veterans Affairs (VA) Regional Office (RO).  On his July 2006
VA Form 9, the veteran requested a Travel Board hearing; in
September 2006 he withdrew the request.

FINDINGS OF FACT

1. A chronic disability of either foot was not manifested in
service.

2. The veteran's current foot disabilities, including
residuals of right metatarsal fracture, bilateral clawing of
toes with left hallux valgus, fat pad atrophy, and right foot
callus are not shown to be related to his service or to any
incident therein.

CONCLUSION OF LAW

Service connection for a bilateral foot disability is not
warranted.  38 U.S.C.A. �� 1110, 1111, 5107 (West 2002 &
Supp. 2007); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.306 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

A.	Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits. See
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a). The VCAA
applies to the instant claim.

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. � 5103(a); 38 C.F.R.
� 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper VCAA notice must inform the claimant of any
information and evidence not of record: (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his or her
possession that pertains to the claim. 38 C.F.R.
� 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).

The veteran was advised of VA's duties to notify and assist
in the development of the claim prior to the initial
adjudication of his claim.  Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006).  A December 2005 letter explained the
evidence necessary to substantiate his claim, the evidence VA
was responsible for providing, the evidence he was
responsible for providing, and advised him to submit any
evidence or provide any information he had regarding his
claim.   He has had ample opportunity to respond/supplement
the record, and is not prejudiced by any technical notice
deficiency (including in timing) that may have occurred
earlier in the process.  In compliance with Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006), an April 2006 letter
provided notice regarding disability ratings and effective
dates of awards.

The veteran's service medical records (SMRs) and pertinent
postservice treatment records have been secured. The RO
arranged for a VA examination in March 2007, (supplemented by
a May 2007 addendum upon review of the veteran's claims
file). The veteran has not identified any evidence that
remains outstanding. VA's duty to assist is met. Accordingly,
the Board will address the merits of the claim.

B.	Factual Background

The veteran's SMRs reveal that on October 1944 induction
examination no physical defects were noted.  In a November
1944 Report of Aptitude Board, it was noted that the veteran
claimed various physical problems, including cardiac and that
his feet bothered him when marching.  He had been to sick
call 3 times for foot trouble and headaches.  It was noted
that examination found no physical basis for the complaints.
The Aptitude Board determined the veteran was unsuitable for
service.

A November 1944 letter from an American Red Cross Field
Director who apparently conducted a field survey on the
veteran's family discusses the veteran's history and notes:
"He has had lots of trouble with his feet, had flu in March,
1944 .

A December 1944 certificate of discharge includes a
certification that the veteran was examined and was found
physically qualified for discharge, with no defects noted,
and no requirement of treatment or hospitalization.

The veteran was subsequently discharged under honorable
conditions due to unsuitability based on poor motivation,
instability, and general inadequacy.

August through November 2001 private medical records from
Wise County Medical & Surgical Association show that the
veteran received treatment for "[t]ranverse fracture present
in 1st, 2nd, and 3rd metatarsals."

In a June 2006 letter, D. R., D.O. states: "[The veteran]
has foot problems which more than likely were caused or
aggravated by marching or standing while in the military."

On March 2007 VA examination, the examiner noted: (1) left
foot mild hallux valgus and severe clawing of the lesser
toes, and (2) right foot essentially identical with severe
claw toes but no hallux valgus.  He indicated that the
veteran's "[c]hronic burning foot pain more likely than not
[is] unrelated to three months in service. His current
condition is largely from stress weight bearing on the heel
and metatarsal heads related to fat pad atrophy of aging. The
only indication of abnormal weight bearing was a callus of
the right fifth metatarsal head and it was nontender." The
examiner also noted that the veteran indicated that "years
ago I used to walk all day" but could not do so anymore due
to increased foot pain.  In a May 2007 addendum after the
veteran's claims file was reviewed, the March 2007 examiner
stated, "[t]he veteran had multiple complaints prior to
service and during his brief period in service. There is
nothing in the record to indicate that the service is related
to his current feet condition." The veteran's VA Form 9
substantive appeal states that "I have had problems with my
feet ever since I got out of the military."

C.	Legal Criteria and Analysis

Service connection may be established for disability due to
disease or injury that was incurred in or aggravated by
active service. 38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  In
order to establish service connection for a claimed
disability, there must be: (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The determination as to whether these requirements are met is
based on an analysis of all the evidence of record and an
evaluation of its credibility and probative value.  Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. � 3.303(a).

It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case, with
all reasonable doubt to be resolved in favor of the claimant.
38 U.S.C.A. � 5107; 38 C.F.R. � 3.102.  When all of the
evidence is assembled, VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event, or
whether a fair preponderance of the evidence is against the
claim, in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).

Although the veteran was seen for foot complaints in service,
examinations found no physical basis for the complaints, no
objective evidence of foot pathology.  Consequently, service
connection for foot disability on the basis that chronic such
disability became manifest in service, and persisted, is not
warranted.

It is not in dispute that the veteran now has chronic foot
disability, and to establish service connection for such
disability there must be competent evidence of a nexus
between the disability(ies) shown and his service.

Notably, a private osteopath has indicated that the veteran's
"foot problems" "more than likely" were caused or
aggravated by marching or standing in service.  The osteopath
does not provide a diagnosis for the "foot problems" he
finds service related, nor does he explain the rationale for
the opinion.

A VA examiner who examined the veteran in March 2007 and
subsequently reviewed the claims file and provided an
addendum to his report opined that the veteran's current foot
disabilities were unrelated to service.  The examiner opined
that atrophied fat pads were age related, and that a right
foot callus was due to abnormal weight-bearing.  He further
indicated that there was nothing in the record to indicate
that the veteran's current foot condition (which includes
bilateral clawing and left hallux valgus) is service-related.
Significantly, there is no postservice evidence of foot
disability prior 2001 (when fractures of right foot toes were
treated).  (There is nothing in the record to suggest that
the fractures were somehow service-related.)  A lengthy time
interval between service and the earliest postservice
documentation of a disability for which service connection is
sought (here bilateral foot disability) is of itself a factor
weighing against a finding of service connection.  See Maxson
v. Gober, 230 F3d 1330, 1333 (Fed. Cir. 2000)(in a case
involving an allegation of aggravation in service).

In summary, the preponderance of the evidence is against a
findings that any current foot disability is related to (was
incurred in/aggravated by) the veteran's service.  In that
regard, the VA examiner's opinion, which (see addendum) was
based on review of the veteran's claims file and provides
explanation of rationale, has substantially greater probative
value than the private osteopath's bare unsupported statement
that relates undiagnosed "foot problems" to marching or
standing in the army.  Medical evidence that is general
cannot be used to support a claim. Obert v. Brown, 5 Vet.
App. 30, 33 (1993). Accordingly, the preponderance of the
evidence is against the veteran's claim, and it must be
denied.

ORDER

Service connection for foot condition is denied.

____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: D BREDEHORST

disposition: granted

condition: tinnitus

text:
Citation Nr: 0822000
Decision Date: 07/03/08    Archive Date: 07/14/08

DOCKET NO.  06-15 026	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Medical and Regional
Office Center in Fargo, North Dakota

THE ISSUES

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

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a back disability.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel

INTRODUCTION

The veteran served on active duty from February 1966 to
February 1968.

This matter comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from rating decisions by the
Medical and Regional Office Center in Fargo, North Dakota
(MROC).  By a rating action in February 2005, the MROC denied
the veteran's claim of entitlement to service connection for
a back disorder.  Subsequently, in October 2005, the RO
confirmed the previous denial of the claim for service
connection for a back disorder; the RO also denied service
connection for bilateral hearing loss and tinnitus.  The
veteran perfected a timely appeal to those decisions.

In May 2007, the veteran appeared at the RO and testified at
a videoconference hearing before the undersigned Acting
Veterans Law Judge, sitting in Washington, D.C.  The veteran
accepted this hearing in lieu of an in-person hearing.  A
transcript of the videoconference hearing is of record.

The issues of entitlement to service connection for bilateral
hearing loss disability and a back disability are addressed
in the REMAND portion of the decision below and are REMANDED
to the RO via the Appeals Management Center (AMC), in
Washington, DC.  VA will contact the veteran if additional
action is required on his part.

FINDING OF FACT

Tinnitus is attributable to noise exposure in service.

CONCLUSION OF LAW

Tinnitus was incurred in service.  38 U.S.C.A. �� 1110, 1154
(a), 1154 (b), 5103, 5103A, 5107 (West 2002 & Supp. 2007);
38 C.F.R. �� 3.102, 3.159, 3.303 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VCAA.

All relevant facts regarding the issue decided below have
been properly developed and no further assistance to the
veteran is required in order to comply with the duty to
notify and assist.  A thorough review of the claims file
reveals that the development conducted by VA in this case
fully meets the requirements of 38 U.S.C.A. �� 5103, 5103A;
38 C.F.R. � 3.159.  In any event, based on the completely
favorable decision discussed below, the Board finds that any
failure in VA's duty to notify and assist the veteran
regarding his claim is harmless.  See Bernard v. Brown, 4
Vet. App. 384 (1993).

II. Factual Background.

The records show that the veteran served on active duty from
February 1966 to February 1968.  His DD Form 214 indicates
that the veteran's military occupational specialty was as
light weapons infantryman.  The veteran was awarded the
Vietnam Service Medal, the Vietnam Campaign Medal, and the
Combat Infantry Badge.  The service medical records are
negative for any complaints or findings of tinnitus.  The
veteran's service separation examination report, dated in
February 1968, do not reflect any complaints or findings of
tinnitus.

The record reveals that the veteran had sought and obtained
medical care for other medical conditions.  Private treatment
reports, dated from April 1992 through April 2005, are
completely silent with respect to any complaints of tinnitus.

The veteran seemingly first complained of tinnitus in 2005 at
the time he filed his claim with VA.  He has not submitted
any records to indicate that he sought medical treatment for
that condition at any point nor that he reported it to
anyone.

May 2005 buddy statements from two men that served with the
veteran in Vietnam described an incident in February 1967 in
which they were all exposed to the sound of an exploding
booby trap.  One described the noise as overwhelming.  A
third buddy statement was received in January 2006 by another
individual that served with the veteran in Vietnam.  He
stated that everyone who was lucky to still be alive had
hearing problems.

On Marcy 2006 VA examination, the veteran complained of
tinnitus, the onset of which was unknown.  He did indicate
that is was due to acoustic trauma.  The examiner found
bilateral tinnitus.  The examiner stated that, based upon the
above information, the veteran's tinnitus is less than likely
the result of his military service.  However, following a
review of the claims folder, she also noted that the veteran
had a significant history of noise exposure during and after
service, and that he had combat.  The audiologist concluded
that, based on significant noise history while in the service
and being in combat, it is at least as likely as not that the
tinnitus is the result of military service.

At his personal hearing in May 2007, the veteran indicated
that, as a light weapons infantryman, he was exposed to
acoustic trauma; he stated that he was exposed to explosives
and small arms fire, grenades, artillery and aircraft noise.
The veteran testified that he has had ringing in his ears
ever since his period of service; he stated that he noticed
the ringing in his ears immediately after a booby trap was
tripped in February 1967, when he was knocked to the ground
by the force of the explosion.

III. Legal Criteria and Analysis

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  Service connection
basically means that the facts, shown by evidence, establish
that a particular injury or disease resulting in disability
was incurred coincident with service in the Armed Forces, or
if preexisting such service, was aggravated therein. 38
C.F.R. � 3.303.  Service connection may be granted for any
disease 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).
Certain chronic diseases, such as an organic disease of the
nervous system, may be service connected if manifested to a
degree of 10 percent disabling or more within one year after
separation from service.  38 U.S.C.A. �� 1101, 1112, 1113,
1137; 38 C.F.R. �� 3.307, 3.309 (2007).

The chronicity provision of 38 C.F.R. � 3.303(b) is
applicable where the evidence, regardless of its date, shows
that the veteran had a chronic condition in service or during
an applicable presumption period.  It provides that
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes.  Medical
evidence demonstrating an etiological link is not necessary
to prove service connection when the disability is chronic.
See Groves v. Peake,  __ F. 3d. __, WL 1902496 (2008).  In
addition, if a condition noted during service is not shown to
be chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection.  38 C.F.R. � 3.303(b) (2007).

The regulations provide that, in considering claims of
veterans who engaged in combat during campaigns or
expeditions, satisfactory lay or other evidence of incurrence
or aggravation in such combat of an injury or disease, if
consistent with the circumstances, conditions or hardships of
such service, will be accepted as sufficient proof of service
connection, even when there is no record of incurrence or
aggravation.  38 U.S.C.A. � 1154(b) (West 2002).  However,
section 1154(b) does not create a statutory presumption that
a combat veteran's alleged disease or injury is service
connected.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir.
1996).  Rather, it aids the combat veteran by relaxing the
adjudicative evidentiary requirements for determining what
happened in service.  Id.

Generally, medical evidence, rather than lay evidence, is
required to establish a medical diagnosis.  Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).  However, in certain
uncomplicated circumstances, lay evidence may suffice.
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)
(explaining in footnote 4 that lay evidence is competent to
identify a simple condition such as a broken leg but not more
complex issues such as identifying a form of cancer).

When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied.  Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

After careful review of the evidentiary record, the Board
finds that the evidence supports the veteran's claim.

The veteran has claimed that his tinnitus is attributable to
service.  The veteran attributes his tinnitus to the period
he spent in Vietnam as a light weapons infantryman; he was
exposed to noise during the time he spent in the field
surrounded by explosives, noise from small arms fire,
grenades, and artillery.  A layman is competent to report
that he was exposed to noise.  A layman is competent to
report that he notices tinnitus as such comes to him through
one of his senses.  Layno v. Brown, 6 Vet. App 465, 470
(1994).  The record also establishes that he has current
disability.  The veteran has an assessment of bilateral
tinnitus by a competent medical specialist.

The Board concludes that the noise level to which the veteran
was exposed to during service caused his tinnitus.  In regard
to the medical opinions, there is a potential conflict in the
record.  The VA examiner initially indicated that the
veteran's tinnitus was les likely due to his service.
However, in her later remarks that indicated that the claims
file was reviewed, she opined to the effect that the
veteran's tinnitus was related to service and based the
opinion of his significant noise exposure in service and
combat.  In view of the veteran's occupational specialty
during service, his report of noise exposure, and the medical
opinion, the Board finds that the medical opinion
establishing a nexus between current tinnitus and service to
be convincing.  In light of the above, service connection for
tinnitus is granted.

ORDER

Service connection for tinnitus is granted.

REMAND

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act (VCAA).  See 38 U.S.C.A. ��
5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007).  In
addition, VA promulgated regulations to implement the
provisions of the law.  See 38 C.F.R. �� 3.102, 3.156(a),
3.159, 3.326(a) (2007).

The VCAA requires that VA must provide notice that informs
the claimant (1) of the information and evidence not of
record that is necessary to substantiate the claim, (2) of
the information and evidence that VA will seek to provide,
and (3) of the information and evidence that the claimant is
expected to provide.  Furthermore, VA must "also request that
the claimant provide any evidence in the claimant's
possession that pertains to the claim."  38 U.S.C.A.
� 5103(a); 38 C.F.R. � 3.159(b)(1).

A. Bilateral Hearing Loss Disability.

The Board notes that the VCAA requires that VA afford a
veteran a medical examination or obtain a medical opinion
when necessary to make a decision on the claim.  See 38
U.S.C.A. � 5103A (d).  When medical evidence is not adequate,
the VA must supplement the record by seeking an advisory
opinion or ordering another examination.  38 C.F.R.
� 3.159(c) (4) (i).  See Littke v. Derwinski, 1 Vet. App. 90
(1991).

In the present case the veteran is seeking service connection
for bilateral hearing loss.  At a VA examination of March
2006 the examiner opined that, based on the information of
record, the veteran's hearing loss is not the result of or
caused by his military service.  However, she also stated
that the record indicates significant noise history both
during and post service; and, the veteran was in combat.
Moreover, she opined that, based on significant noise history
while in the service and being in combat, it was at least as
likely as not that the veteran's tinnitus was the result of
his military service.  The examiner's opinion appears to
contradict itself.  While she is stating that the veteran has
significant noise exposure in service and had an impairment
of the organic system that started in service, she is
concluding that his bilateral hearing loss is not related to
service.  She reached that opinion based on the fact that the
service medical records were negative for any findings of
hearing loss; however, the absence of documented evidence of
hearing loss in service does not preclude a claimant from
establishing entitlement to service connection.  See Ledford
v. Derwinski, 3 Vet. App. 87, 89 (1992).  Rather, service
connection may nonetheless be granted when there is a post-
service diagnosis of hearing loss, in addition to competent
medical evidence establishing that this disability is
causally related to military service.  See Hensley v. Brown,
5 Vet. App. 155, 158 (1993).  See, too, Heuer v. Brown, 7
Vet. App. 379, 384 (1995).  Accordingly, a VA Audiological
examination should be scheduled to confirm that the veteran
presently has a bilateral hearing loss disability, and if
present, to evaluate whether this disorder is causally
related to claimed in-service acoustic trauma.  See 38
U.S.C.A. � 5103A (d).

B. Back Disability.

The veteran contends that his current back disorder is
related to his active duty service.  The veteran's service
medical records are negative for any complaints or clinical
findings of a back injury or disability.  The veteran's
separation examination, in February 1968, indicated a normal
spine and did not note the presence of a back disorder or
abnormality.  Also, the veteran reported in the accompanying
report of medical history that he did not have a history or
current complaints of recurrent back pain.

However, of record are two buddy statements from individuals
who served in Vietnam with the veteran.  Both statements
describe an incident in which the veteran was thrown in the
air by the impact on an explosion.  In the statement from
J.L., he reported that their unit was on patrol in February
1967, at which time their point man tripped a booby trap
injuring 4 men.  He stated that he later became the veteran's
platoon leader.  The veteran's platoon leader noted that, at
the time of the explosion, the veteran was blown off his feet
and was unconscious for a short time, although he didn't
receive any shrapnel wounds.  J.L, the platoon leader, noted
that the veteran was unable to carry the radio because of
back pain, and he had to be replaced for several weeks.

Private medical records reveal that the veteran obtained
treatment for back pain in August 2004; at that time, he was
diagnosed with acute lumbar strain.  Subsequently, in a
statement dated in April 2005, Dr. G. W. stated that she saw
the veteran in August 2004 for pain in his low back; she
noted that the veteran claimed to have rolled over in bed and
fell hard and heard a "pop" in his back, and immediately
felt pain down his left leg to the knee.  He denied any
specific accident before that.

At this videoconference hearing in May 2007, the veteran
reported serving in Vietnam for several years; he stated that
he served as a radio operator and carried the radio
equipments for the platoon in the jungles of Vietnam.  The
veteran indicated that he also jumped out of helicopters.
The veteran also related that his unit was blown out of a
foxhole that sent them to the floor as a result of a booby
trap; he was treated by the medics in the field.  The veteran
testified that he did not seek treatment immediately after
service; he stated that he was young and dealt with the pain.
The veteran indicated that he has had problems with back pain
ever since military service, and he currently receives
treatment for back pain.

Given the preceding evidence, it appears that a VA
examination for the purpose of a nexus opinion is necessary
because (1) the record contains competent evidence related to
a currently diagnosed back disorder; (2) the veteran's
service medical records reveal that the veteran suffered from
back pain on at least one occasion; and (3) the evidence
indicates that the claimed disability may be associated with
in-service injuries.  See McClendon v. Nicholson, 20 Vet.
App. 79 (2006) (recognizing that the latter element is a low
threshold).
Also, given the veteran's combat service, claim of back pain
and reported treatment, and evidence of current back
disability, the Board finds that a VA examination is needed
to determine whether the veteran has the claimed disability
(ies) and, if so, whether each of the claimed disabilities
had its onset during service or is related to his active
service, to include incidents in combat as reported by the
veteran.  38 U.S.C.A. � 1154(b), 5103A; 38 C.F.R. � 3.159(c)
(4).

To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to his claims and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO via the Appeals Management Center (AMC) in
Washington, DC. for the following actions:

1.  The RO should make arrangements with
the appropriate VA medical facility for
the veteran to be afforded a VA audio
examination to determine the existence
and etiology of his current bilateral
hearing loss.  Audiometric results should
be reported.  The claims file must be
made available to and reviewed by the
examiner.  After clinical interview and
examination, the examiner is to provide
an opinion whether it is at least as
likely as not (at least 50 percent
probable) that the veteran's current
hearing loss had its onset during active
service or related to any in-service
disease or injury, including noise
exposure.  The examiner's attention is
directed to the medical opinion provided
in the VA compensation examination
conducted in March 2006.  A rationale for
any opinion expressed should be provided.

2.  The veteran should also be afforded a
VA orthopedic examination to determine
the nature and etiology of his claimed
back disorder.  The claims folder and a
separate copy of this remand should be
made available to the examiner for
review. The examiner is asked to offer an
opinion as to whether it is as likely as
not that any current low back disorder
found had its onset during active service
or is related to any in-service disease
or injury.  The examiner must provide a
comprehensive report including complete
rationales for all conclusions reached.

3.  Thereafter, the RO should
readjudicate the veteran's claims of
entitlement to service connection for a
bilateral hearing loss disability and a
back disability.  If this determination
remains unfavorable to the veteran in any
way, he and his representative should be
furnished a Supplemental Statement of the
Case (SSOC), which includes a summary of
additional evidence submitted, and any
additional applicable laws and
regulations.  The SSOC must provide
reasons and bases for the decisions
reached.  Thereafter, the veteran and his
representative should be given the
opportunity to respond.

After the above actions have been accomplished, the case
should be returned to the Board for further appellate
consideration, if otherwise in order.  By this REMAND the
Board intimates no opinion, either factual or legal, as to
the ultimate determination warranted in this case.  The
purposes of the REMAND are to further develop the record and
to accord the veteran due process of law.  No action is
required of the veteran until he receives further notice.

The appellant has the right to submit additional evidence and
argument on the matter or matters 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 38
U.S.C.A. �� 5109B, 7112 (West Supp. 2008).

______________________________________________
D. Bredehorst
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: MARJORIE A AUER

condition: hypertension

text:
Citation Nr: 0823000
Decision Date: 07/11/08    Archive Date: 07/23/08

DOCKET NO.  90-44 915	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUES

1.  Entitlement to service connection for degenerative joint
disease of the lumbosacral spine.

2.  Entitlement to service connection for an eye condition,
including refractive error and allergic conjunctivitis.

3.  Entitlement to service connection for nicotine
dependence.

4.  Entitlement to a rating higher than 20 percent for
degenerative arthritis of the cervical spine.

5.  Entitlement to a rating higher than 10 percent for a pain
disorder.

6.  Entitlement to a rating higher than 10 percent for
gastritis with diverticulitis of the colon.

7.  Entitlement to a rating higher than 10 percent for
hypertension.

8.  Entitlement to a compensable rating for allergic
rhinitis/sinusitis.

9.  Entitlement to restoration of a 30 percent rating, and a
higher rating, for prolapse of the rectum, rated 30 percent
from March 1989 to February 28, 2003, and rated as non-
compensably disabling thereafter.

10.  Entitlement to a rating higher than 20 percent for
postoperative hemorrhoids.

(The issues of entitlement to a separate compensable
evaluation for pruritis ani, a separate compensable
evaluation for a stricture of the esophagus, an earlier
effective date for a grant of service connection for asbestos
lung disease, an earlier effective date for a grant of
service connection for peripheral vascular disease, an
earlier effective date for a total disability rating based on
individual unemployability due to service-connected
disabilities, a total disability rating for a period of
convalescence for a right lower extremity disorder, and
special monthly compensation based on being housebound due to
surgery on the right lower extremity are addressed in a
separate decision.)

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Michael Martin, Counsel

INTRODUCTION

The appellant served as a member of the Arkansas National
Guard from January 1969 to October 1983, including numerous
periods of active duty for training and inactive duty for
training.

This case comes to the Board of Veterans' Appeals (Board)
from decisions by the Department of Veterans Affairs (VA)
Regional Office (RO) in Little Rock, Arkansas.  The course of
the appeal has been, both procedurally and substantively,
complicated and very prolonged.  The appeal originated from a
November 1989 RO rating decision that denied service
connection for an eye condition including conjunctivitis and
service connection for shingles (the claim for service
connection for shingles was later withdrawn from appellate
review).  The veteran has had at least 7 personal RO hearings
and two Board hearings.  In addition the case has been the
subject of an order and a revised order by the United States
Court of Appeals for Veterans Claims (Court).  The extensive
appellate course has been described in detail in a July 2000
Board decision (since vacated by the April 2001 and July 2001
Court orders) and in October 2001 and October 2002 Board
remands.  The history reported in those Board remands will
not be repeated herein, except to note that, in June 2002,
the RO granted service connection for a cervical spine
disability (20 percent), a pain disorder associated with both
psychological factors and medical conditions (10 percent), a
gastrointestinal disorder (gastritis with diverticulitis of
the colon) (10 percent), hypertension (10 percent), and
allergic rhinitis/sinusitis (0 percent).  The June 2002 RO
decision also proposed a reduction in the rating assigned to
the veteran's service-connected prolapsed rectum, from 30
percent to 0 percent.

Since the October 2002 Board remand, the RO effectuated the
proposed reduction in the rating for prolapsed rectum in
December 2002.  The veteran testified at a hearing before a
Veterans Law Judge at the RO in November 2003.

In March 2004, the RO granted service connection for
asbestos-related lung disease (60) percent and a total
compensation rating based on individual unemployability.
Entitlement to a total compensation rating is therefore no
longer in appellate status.
In a decision of May 2005, the Board issued a decision which
denied service connection for degenerative joint disease,
denied service connection for an eye condition included
refractive error and allergic conjunctivitis, and denied
service connection for nicotine addiction.  The Board also
remanded claims for increased rating of degenerative
arthritis of the cervical spine, a pain disorder, gastritis
with diverticulitis of the colon, hypertension, allergic
rhinitis/sinusitis, a prolapsed rectum, and postoperative
hemorrhoids.  The veteran subsequently appealed the denial of
his service connection claims to the United States Court of
Appeals for Veterans Claims (Court).  In a decision of April
2007, the Court vacated the Board's decision with respect to
the denial of the service connection claims.  The case has
now been returned to the Board for further action in
accordance with the Court's order.  The Board also notes that
the RO has completed the requested actions pertaining to the
remanded claims for higher ratings, and those issues are
again before the Board.

The claim for a higher rating for hypertension is ready for
appellate review.  The remaining issues are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.

FINDINGS OF FACT

The veteran's hypertension is not manifested by diastolic
pressure which is predominately 110 or more, or systolic
pressure which is predominantly 200 or more, and does not
result in definite symptoms.

CONCLUSION OF LAW

The criteria for an initial disability rating higher than 10
percent for hypertension are not met.  38 U.S.C.A. � 1155
(West 2002); 38 C.F.R. � 4.104, Diagnostic Code 7101 (1997 &
2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the VA's duty to assist and
notify have been fully satisfied.  See 38 U.S.C.A. � 5103(a);
38 C.F.R. � 3.159(b).  The veteran's claim for a higher
rating for hypertension arises from his disagreement with the
initial evaluation following the grant of service connection.
Courts have held that once service connection is granted the
claim is substantiated, additional notice is not required,
and any defect in the notice is not prejudicial.  Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007).  With respect to
development of evidence, the Board notes that the veteran has
been afforded VA examinations, and his treatment records have
been obtained.  He has also been afforded a hearing.  The
Board notes that the Veterans Law Judge who conducted a
hearing in November 2003 has since retired.  However, the
veteran has indicated that he does not desire another
hearing.  The Board is not aware of any additional relevant
evidence that exists, but has not been obtained.  The VA has
no outstanding duty to inform the veteran that any additional
information or evidence is needed.

Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity in civil occupations.  See 38 U.S.C.A.
� 1155.  Separate diagnostic codes identify the various
disabilities.

Subsequent to filing his claim, the rating schedule for
determining the disability evaluations to be assigned for
disorders of the cardiovascular system was changed, effective
January 12, 1998.  See 62 Fed. Reg. 65, 207-224 (December 11,
1997).

Under the previous version of the regulation, 38 C.F.R.
� 4.104, Diagnostic Code 7101 (1997), a 10 percent disability
rating is warranted for hypertension when the diastolic
pressure is predominately 100 or more, or where continuous
medication is shown to be necessary for the control of
hypertension and there is a history of diastolic pressures
predominantly 100 or more.  A 20 percent rating is warranted
where diastolic pressure was predominantly 110 or more with
definite symptoms.  A 40 percent rating is warranted where
diastolic pressure was predominantly 120 or more and there
were moderately-severe symptoms.  A 60 percent rating is
warranted where diastolic pressure was predominately 130 or
more and there were severe symptoms.  For the 40 percent and
60 percent ratings, there should be careful attention paid to
diagnosis and repeated blood pressure readings.

In pertinent part, the revised regulation provides that a 10
percent rating is warranted for diastolic pressure
predominantly 100 or more; systolic pressure predominantly
160 or more; or for an individual with a history of diastolic
pressure predominantly 100 or more who requires continuous
medication for control.  A 20 percent rating is warranted if
the diastolic pressure is predominantly 110 or more; or the
systolic pressure is predominantly 200 or more.  A 40 percent
rating is warranted if the diastolic pressure is
predominantly 120 or more.  A 60 percent rating is warranted
if the diastolic pressure is predominantly 130 or more.

The Board has considered the full history of the veteran's
service-connected hypertension.  In a rating decision of June
2002, the RO granted service connection for hypertension
effective from the date of claim, November 19, 1997.  In the
decision, the RO noted that hypertension was not shown in
service, but could be granted based on a presumption.  The RO
assigned a 10 percent initial rating which was effective from
the date of service connection.  The veteran appeals that 10
percent initial rating.

The veteran testified regarding his hypertension during a
hearing held at the RO in April 1999.  He stated that his
blood pressure had been over 100.  He also reported having
symptoms such as headaches and blurred vision.  Similarly,
during a hearing held before a Veterans Law Judge in November
2003 the veteran testified that his high blood pressure made
him feel light-headed, and that he had chest pain in the
past.  During the same hearing, the veteran testified that he
had headaches, but attributed them to his service-connected
cervical spine disorder.

The relevant medical evidence which has been presented
includes VA and private treatment records, as well as the
reports of VA examinations.  For example, a private
gastroenterology treatment record dated in March 1999
reflects that his blood pressure reading was 161/109.  A
record from the Arkansas Diagnostic Center dated in April
1999 reflects that that his reading was 169/100.

A VA treatment record dated in September 1999 shows a reading
of 160/104.  A VA treatment record dated in November 2000
shows a blood pressure reading of 173/106, and a repeat
reading of 155/117.  A blood pressure medication was added.
A private treatment record dated in December 2000 from
Arkansas Asthma and Allergy clinic reflects that his blood
pressure was down to 164/104.

A VA treatment record dated in March 2001 reflects a blood
pressure reading of 146/94.  It was noted that his blood
pressure was stable on medication.  A record dated in January
2002 from the Arkansas Diagnostic Center reflects that his
most recent three readings had been 150/86, 146/89, and
120/90.  A VA treatment record dated in April 2003 reflects
that the veteran's blood pressure reading was 153/101.  He
was instructed to resume taking a medication which he had
stopped taking.  A subsequent VA treatment record dated in
August 2003 reflects that his blood pressure was 111/72.  An
August 2003 VA treatment records shows a reading of 111/72.

A private medical record dated in September 2005 notes a
blood pressure reading of 160/90 while exercising.  A private
treatment record dated in April 2006 notes a reading of
169/116.  A private treatment record dated in May 2006 shows
a reading of 128/92.  A private treatment record dated in
June 2006 reflects a blood pressure reading of 163/104.
Another private treatment record dated two weeks later in
June 2006 notes a blood pressure reading of 124/82.

The veteran underwent a VA heart examination in June 2006.
His blood pressure reading at that time was 120/80.  It was
noted that he took three medications with apparently adequate
blood pressure control.

Finally, the report of a heart examination conducted by the
VA in November 2006 reflects that the veteran had suffered
from labile hypertension since the 1970's, and had been
placed on medication for hypertension in the late 1990's.  He
reportedly also had coronary artery disease [now service
connected as a separate disability].  He denied arrhythmia,
CHF, syncope or pre-syncope.  He was able to perform the
activities of daily living.  On physical examination, blood
pressure readings were 107/57, 100/62, and 95/60.  The
diagnostic impression was hypertensive cardiovascular disease
with coronary artery disease/cardiomegaly.

After considering all the evidence, the Board finds that the
veteran's hypertension has not been manifested by diastolic
pressure predominately 110 or more or systolic readings of
200 or more as contemplated for a rating in excess of 10
percent.  The medical evidence shows that the readings have
been consistently below that level.  There have only been a
few, infrequent readings above such levels.  Thus, the
readings have not been predominately above 200 systolic or
110 diastolic.

The Board further finds that the hypertension has not
resulted in definite symptoms.  Although he presented
testimony that his hypertension caused headaches, he later
testified that his headaches were due to his cervical spine
disorder.  This inconsistency reduces the credibility of the
testimony.  The Board also notes that although the veteran
testified that he had dizziness, the VA examination report
shows that he denied syncope.  Again, the inconsistency in
his reports reduces credibility.  Of particular significance,
the treatment records consistently show that the veteran did
not have any complaints associated with elevated blood
pressure readings.  Any symptoms appear to have been
controlled by medication.  Accordingly, the Board concludes
that the criteria for an initial disability rating higher
than 10 percent for hypertension are not met under either the
old or the revised regulations.  Also, there has been no
significant variations to warrant assignment of higher rating
based on a staged rating process.

ORDER

A disability rating higher than 10 percent for hypertension
is denied.

REMAND

As noted above, the Court issued an order in April 2007 which
vacated the Board's decision denying service connection for
degenerative joint disease of the lumbosacral spine, an eye
condition, and nicotine dependence.  With respect to the
claim for degenerative joint disease of the spine, the Court
noted that a medical opinion relied upon by the Board, namely
an opinion contained in a VA examination report addendum
dated in April 2002, appeared to be inconsistent with
statements made by the same examiner in the January 2002
examination report itself.  In the original January 2002
examination report, the examiner stated that it was
reasonable to assume that some aggravation of a spine
disorder occurred until the veteran was finally disqualified
from military duty, and that the probability of this was
greater than 50%.  In the addendum, however, he stated that
he was unable to state without speculation that there was a
direct relationship between the degenerating joint disease in
lumbar facet and the specific incident of injury.  The Court
noted that no explanation had been given for this apparent
reversal of opinion.  In light of this, the Court held that
the Board had erred in relying on that opinion.  According,
the Board concludes that the claim should be remanded for the
purpose of obtaining an acceptable opinion.

With respect to the claim for service connection for an eye
condition, to include refractive error and allergic
conjunctivitis, the Court noted that there was mixed evidence
with respect to whether or not the veteran currently had an
eye condition.  A VA examination in January 2002 found that
the veteran had no pattern of chronic conjunctivitis or
allergic conjunctivitis, while medical treatment records from
both the VA and private health care providers dated in 2000
and 2001 contained diagnoses of conjunctivitis.  The Board
concludes that in light of the conflicting evidence, and the
fact that the items of evidence referred to are at least six
years old, a new examination would be useful in assessing
this claim.  Accordingly, the claim for service connection
for an eye condition must be remanded.

Regarding the claim for service connection for nicotine
addition, the Board notes the report of an examination
conducted by the VA in April 2002 reflects that the diagnosis
was nicotine dependence not found.  Subsequently, the veteran
presented private medical treatment records such as a record
dated in June 2005 from Martin Fiser, M.D., which reflect
treatment for nicotine addiction.  The Board concludes that
another examination is warranted to reconcile these
inconsistent diagnoses.

Finally, with respect to the claims for higher ratings, the
Board finds that additional development of evidence is
required.   In this regard, the veteran has not had
disability evaluation examinations for many years.  Regarding
the degenerative arthritis of the spine, the Board notes that
his most recent spine examination was in April 2002.
Regarding the claim for a higher rating for a pain disorder,
the Board notes that the veteran's most recent psychiatric
examination to address the severity of that disorder was in
January 2002.  Regarding the gastritis with diverticulitis of
the colon, the most recent gastrointestinal examination was
conducted over four years ago in April 2004.  Regarding the
claim for a higher rating for allergic rhinitis and
sinusitis, the most recent nose/allergies examination was
conducted in November 2003.  Similarly, the veteran's most
recent rectal examination was also conducted in November
2003.  Those examinations are too old to reflect the current
severity of these disabilities.  A remand is required for the
purpose of affording the veteran new examinations.

Accordingly, the case is REMANDED for the following action:

1.   The veteran should be afforded a VA
orthopedic examination to determine the
nature and etiology of any lumbosacral
spine disabilities which the veteran may
currently have, as well as to determine
the current severity of his service
connected degenerative arthritis of the
cervical spine.  The claims folder,
including the service medical records
should be made available to and reviewed
by the examiner before the examination.
The examiner should record the full
history of the claimed disorder.  The
examiner should specifically comment as
to the likelihood that any currently
found disability is as likely as not
(i.e., is there a 50 percent or greater
likelihood) related to service.  With
respect to the service-connected cervical
spine disorder, the examiner should
provide all findings necessary to
properly rate the disability, to include
range of motion findings, neurological
findings, a complete history, and an
assessment of impairment due to factors
such as pain on motion.

2.  The veteran should be afforded a VA
eye disorders examination to determine
the nature and etiology of any eye
disabilities which the veteran may
currently have.  The claims folder,
including the service medical records
should be made available to and reviewed
by the examiner before the examination.
The examiner should record the full
history of the claimed disorder.  The
examiner should specifically address
whether the veteran currently has
conjunctivitis.  The examiner should
specifically comment as to the likelihood
that any currently found disability is as
likely as not (i.e., is there a 50
percent or greater likelihood) related to
service.

3.  The RO should arrange for a VA
examination to obtain a fully informed
opinion regarding the claim for nicotine
addiction.  The claims folder and a
separate copy of this remand must be
reviewed by the examiner in conjunction
with the examination.  The examiner
should record a complete history, and
pertinent medical complaints, symptoms,
and clinical findings.  Following the
examination and a review of the record,
the examiner should provide responses to
the following questions:  (a) Is it as
likely as not that the veteran developed
nicotine dependence in service?  (b) Does
the veteran have a current diagnosis of
nicotine dependence?  In the event that
the examiner concludes that the veteran
does not currently have nicotine
addiction, the examiner should provide an
explanation as to why he or she disagrees
with the veteran's private physicians.

4.  The veteran should be scheduled for
VA disability evaluation examinations to
ascertain the current severity of his
service-connected pain disorder,
gastritis with diverticulitis of the
colon, allergic rhinitis/sinusitis
prolapse of the rectum postoperative
hemorrhoids. The claims folder should be
made available to the examiner for review
in conjunction with the examination, and
the examiner should acknowledge such
review in the examination report.  Any
necessary tests and studies should be
performed.

5.  The RO should review the examination
report to determine if it is in compliance
with this REMAND.  If deficient in any
manner, it should be returned, along with
the claims file, for immediate corrective
action.

6.  Following completion of these
actions, the RO should review the
evidence and determine whether the
veteran's claims may now be granted.  If
the decision remains adverse to the
veteran, he and his representative should
be provided with an appropriate
Supplemental Statement of the Case and an
opportunity to respond thereto.  The case
should then be returned to the Board for
further appellate consideration, if
otherwise in order.

The appellant has the right to submit additional evidence and
argument on the matter or matters 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 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2007).

______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: N R ROBIN

disposition: remanded

text:
Citation Nr: 0824000
Decision Date: 07/18/08    Archive Date: 07/30/08

DOCKET NO.  06-33 522	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado

THE ISSUES

1.  Whether the reduction for service-connected bilateral
hearing loss from 20 to 10 percent, effective November 1,
2005, was proper.

2.  Entitlement to an evaluation in excess of 10 percent for
bilateral hearing loss for the time period from November 1,
2005.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Associate Counsel

INTRODUCTION

The veteran served on active military service from August
1970 to August 1972.

In a September 2002 rating decision, the RO awarded
entitlement to service connection for bilateral hearing loss
and assigned a 10 percent rating under 38 C.F.R. � 4.86,
Diagnostic Code 6100, effective January 28, 2002.
Thereafter, in a December 2003 rating decision, the RO
assigned a 20 percent rating for right ear hearing loss and a
noncompensable (zero percent) rating for left ear hearing
loss, both effective January 28, 2002.

In March 2005, the veteran filed a claim for an increased
evaluation for his hearing loss disabilities.

The appeal comes before the Board of Veterans' Appeals
(Board) from June and August 2005 rating decisions of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Denver, Colorado.  In a June 2005 rating decision, the RO
found that there was clear and unmistakable error in the
December 2003 rating decision, which rated the right and left
ear hearing loss separately and assigned a 20 percent rating
for bilateral hearing loss, effective January 28, 2002.  The
RO also proposed to reduce the disability rating for the
veteran's bilateral hearing loss from 20 to 10 percent.  In
an August 2005 rating decision, the RO finalized the
reduction to a 10 percent rating for the veteran's bilateral
hearing loss disability, effective November 1, 2005.

In April 2008, the veteran testified at a Board hearing at
the RO before the undersigned Veterans Law Judge; a copy of
the transcript is associated with the record.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the
appellant if further action is required.

REMAND

In an October 2005 statement, the veteran expressed
disagreement with the rating reduction of his service-
connected bilateral hearing loss in the RO's August 2005
rating decision.  This statement is accepted as a timely
notice of disagreement (NOD) with the August 2005 rating
decision on this issue, but the RO did not address the issue
in its September 2006 statement of the case (SOC).  See 38
C.F.R. �� 20.201, 20.302(a) (2006).  In Manlincon v. West, 12
Vet. App. 238 (1999), the United States Court of Veterans
Appeals (now the United States Court of Appeals for Veterans
Claims, hereinafter the Court) held that when an appellant
files a timely NOD and no SOC is issued, the Board should
remand, rather than refer, the issue to the RO for the
issuance of an SOC.  Consequently, this matter will be
remanded for the issuance of an SOC.

The Board further notes that the pending claim for an
evaluation in excess of 10 percent for bilateral hearing loss
is "inextricably intertwined" with the above-noted claim
regarding the propriety of the reduction from 20 to 10
percent, inasmuch as a grant of the benefits sought with
respect to the claim regarding the propriety of the reduction
could affect the adjudication of the claim for an increased
rating .  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris
v. Derwinski, 1 Vet. App. 180, 183 (1991), (two issues are
"inextricably intertwined" when they are so closely tied
together that a final Board decision cannot be rendered
unless both issues have been considered).  It follows that,
as any Board action at this time on the issue of whether the
reduction was proper would be premature, the issue must be
deferred pending the actions requested on remand.

In addition, the Board notes that the provisions of the
Veterans Claims Assistance Act of 2000 (VCAA), codified at 38
C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a), and as
interpreted by the Court, are applicable to this appeal.  As
the case is being remanded for additional development,
appropriate action should be taken to ensure that adequate
VCAA notice as to all elements of the claim is provided,
including the notice requirements pertaining to increased
ratings outlined in Vazquez-Flores v. Peake, 22 Vet. App. 37
(2008).

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should contact the veteran
and obtain from him the names and
addresses of all medical care providers,
VA or non-VA who treated him for his
service-connected bilateral hearing loss
since December 2007.  After the veteran
has signed the appropriate releases, those
records should be obtained and associated
with the claims folder.  All attempts to
procure records should be documented in
the file.  If the AMC/RO cannot obtain
records identified by the veteran, a
notation to that effect should be inserted
in the file.  The veteran and his
representative are to be notified of
unsuccessful efforts in this regard, in
order to allow the veteran the opportunity
to obtain and submit those records for VA
review.

2.  The RO should issue to the veteran and
his representative an SOC addressing the
claim regarding the propriety of the
reduction from 20 to 10 percent, effective
November 1, 2005.  All applicable criteria
should be addressed in the SOC, to include
38 C.F.R. � 3.105(a).  Along with the SOC,
the RO must furnish to the veteran and his
representative a VA Form 9 (Appeal to
Board of Veterans' Appeals) and afford
them the applicable time period for
perfecting an appeal to this issue.  (The
veteran and his representative are hereby
reminded that appellate consideration of
this claim may be obtained only if a
timely appeal is perfected.)  If, and only
if, the veteran files a timely appeal,
this issue should be returned to the
Board.

3.  The RO/AMC should issue a letter in
connection with Vazquez-Flores v. Peake,
22 Vet. App. 37 (2008), in regards to the
veteran's claim for an increased rating
for hearing loss, which should include the
following: (i) notify the claimant that to
substantiate a claim the claimant must
provide, or ask the Secretary to obtain,
medical or lay evidence demonstrating a
worsening or increase in severity of the
disability and the effect that worsening
has on the claimant's employment and daily
life; (ii) provide the provisions of
Diagnostic Code 6100; (iii) notify the
claimant that should an increase in
disability be found, a disability rating
will be determined by applying relevant
Diagnostic Codes, which typically provide
for a range in severity of a particular
disability from noncompensable to as much
as 100 percent, based on the nature of the
symptoms of the condition for which
disability compensation is being sought,
their severity and duration, and their
impact upon employment and daily life; and
(iv) provide examples of the types of
medical and lay evidence that the claimant
may submit (or ask the Secretary to
obtain) that are relevant to establishing
entitlement to increased compensation-
e.g., competent lay statements describing
symptoms, medical and hospitalization
records, medical statements, employer
statements, job application rejections,
and any other evidence showing an increase
in the disability or exceptional
circumstances relating to the disability.

4.  After completion of the above and any
additional development deemed necessary,
the issues on appeal should be reviewed
with consideration of all applicable laws
and regulations.  If any benefit sought on
appeal remains denied, the veteran and his
representative should be furnished an
appropriate supplemental statement of the
case and be afforded the opportunity to
respond.  Thereafter, the case should be
returned to the Board for appellate
review.

The appellant has the right to submit additional evidence and
argument on the matter or matters 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 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2007).

_________________________________________________
N. R. ROBIN
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) (2007).