text: A higher rating for PTSD is denied.

text:
Citation Nr: 0019000
Decision Date: 07/20/00    Archive Date: 07/25/00

DOCKET NO.  94-30 353	)	DATE
	)
	)

On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Buffalo, New York

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen the claim of service connection for hearing loss, and
if so, whether service connection is warranted.

2.  Entitlement to a rating in excess of 30 percent for post-
traumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Kimberly E. Harrison Osborne, Counsel

INTRODUCTION

The veteran had verified active military service from July
1957 to April 1962, and from July 1964 to February 1979.  He
had additional active service, the dates of which have not
been verified, and he retired from service in February 1979
based on completion of more than 22 years of active service.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal partly from a March 1993 rating decision by
the RO which granted service connection for PTSD, assigning a
10 percent rating.  In July 1993, the RO increased the rating
for PTSD to 30 percent.  The veteran appeals for a higher
rating.

The current appeal also arises from a November 1999 RO rating
decision which denied service connection for hearing loss.
The Board notes that in March 1993, the RO denied service
connection for hearing loss.  In June 1993, the veteran
submitted a notice of disagreement.  In August 1993, he was
issued a statement of the case.  He did not perfect his
appeal by filing a timely substantive appeal.  As a result,
the March 1993 RO decision denying service connection for
hearing loss is final.  Thus, new and material evidence is
needed to reopen the claim.  38 U.S.C.A. � 5108, 7105.  In
November 1999, the RO denied the claim of service connection
for hearing loss on a de novo basis.  Irrespective of the
RO's action in November 1999, the Board must decide whether
the veteran has submitted new and material evidence to reopen
the claim of service connection for hearing loss.  Barnett v.
Brown, 83 F.3d 1380 (Fed. Cir. 1996).  Thus, the Board
construes the issue to be whether new and material evidence
has been submitted to reopen the claim of service connection
for hearing loss, and if the claim is reopened, whether
service connection for hearing loss is warranted.

In February 2000, the veteran, through his representative,
raised the issue of service connection for tinnitus.  This
issue has not been adjudicated by the RO and it is referred
to the RO for appropriate action.

FINDINGS OF FACT

1.  An unappealed RO decision in March 1993 denied a claim of
service connection for hearing loss.  The evidence received
since the March 1993 RO decision includes evidence which is
not cumulative or redundant of evidence previously
considered, and which is so significant that it must be
considered in order to fairly decide the merits of the claim
for service connection.

2.  The veteran's left ear hearing loss began in service

3.  The veteran has not submitted competent evidence showing
a plausible claim of service connection for right ear hearing
loss.

4.  The veteran's PTSD is productive of no more than definite
social and industrial impairment, and no more than
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks due to symptoms.

CONCLUSIONS OF LAW

1.  The veteran has submitted new and material evidence since
the March 1993 RO decision, and thus the claim for service
connection for hearing loss is reopened.  38 U.S.C.A. ��
5108, 7105 (West 1991); 38 C.F.R. � 3.156 (1999).

2.  Left ear hearing loss was incurred in active service.
38 U.S.C.A. �� 1110, 1131, (West 1991 & Supp. 1999);
38 C.F.R. �� 3.303 (1999).

3.  The claim of service connection for right ear hearing
loss is not well grounded.  38 U.S.C.A. � 5107(a) (West 1991
& Supp. 1999).

4.  The criteria for a rating in excess of 30 percent for
service-connected PTSD have not been met.  38 U.S.C.A. � 1155
(West 1991 & Supp. 1999); 38 C.F.R. � 4.132, Diagnostic Code
9411 (1996), 38 C.F.R. � 4.130, Diagnostic Code 9411 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual Background

The veteran had verified active military service from July
1957 to April 1962, and from July 1964 to February 1979.  He
had additional active service, the dates of which have not
been verified, and he retired from service in February 1979
based on completion of more than 22 years of active service.
His service medical records does not contain an initial
service enlistment examination.  In October 1964 he was
treated for external otitis.  When examined in 1977,
audiological studies revealed the veteran had pure tone
thresholds of the right ear of 10, 10, 10, 5 and 30 decibels
at 500, 1000, 2000, 3000 and 4000 hertz, respectively.  Pure
tone thresholds of the left ear were 20, 15, 15, 30 and 60
decibels at 500, 1000, 2000, 3000 and 4000 hertz,
respectively.  Examination of the ears in 1978 revealed he
had pure tone thresholds of the right ear of 5, 5, 5, 0 and
20 decibels at 500, 1000, 2000, 3000 and 4000 hertz,
respectively.  Pure tone thresholds of the left ear were 5,
5, 5, 30 and 70 decibels at 500, 1000, 2000, 3000 and 4000
hertz, respectively.  The examiner noted the veteran had high
frequency hearing loss.  A 1979 separation examination
revealed the veteran had pure tone thresholds of the right
ear of 5, 0, 0, 0 and 25 decibels at 500, 1000, 2000, 3000
and 4000 hertz, respectively.  Pure tone thresholds of the
left ear were 5, 10, 15, 35 and 80 decibels at 500, 1000,
2000, 3000 and 4000 hertz, respectively.

Service personnel records show the veteran received the
Combat Action Ribbon, Purple Heart Medal, Vietnamese Cross of
Gallantry with Palm, Vietnam Campaign Medal, and the Good
Conduct Medal.

In 1987, the veteran was treated for decreased hearing loss.
He was referred to the ear, nose and throat (ENT) clinic in
August 1987.  At that time, audiological studies revealed
pure tone thresholds of the right ear of 10, 15, 20, and 30
decibels at 500, 1000, 2000, and 4000 hertz, respectively.
Pure tone thresholds of the left ear were 20, 55, 70, and 100
decibels at 500, 1000, 2000, and 4000 hertz, respectively.

VA outpatient treatment reports from 1992 show the veteran
complained of decreased hearing and that he received
treatment at the psychiatric clinic.  Psychiatric reports
during this time show the veteran lived with his mother.  He
complained of having nightmares, flashbacks, feelings of
isolation, feelings of guilt, and periods of depression.  He
had startle responses and was hypervigilant.  He stated he
had no friends other than Vietnam veterans.

In April 1992, the veteran filed a claim of service
connection for PTSD.  He stated he had flashbacks and
nightmares of his Vietnam experiences.

On April 1992 VA psychiatric examination, the veteran
complained of nightmares regarding his Vietnam experiences.
During mental status examination, the examiner noted the
veteran had severe hearing impairment which was more
pronounced on the left.  The veteran reported he had
continuous memories of his Vietnam experiences.  Mental
status examination revealed the veteran had startle response
and was hyperalert.  The veteran stated he frequently felt
depressed.  However, he denied having suicidal thoughts.  He
stated he had no friends and spent most of his time at home
taking care of his 80 year old mother.  The examiner stated
the veteran had good insight into his problems.  The veteran
related he could not express his emotions and that his
feelings were numb.  He denied hallucinations and delusional
trends.  His judgment was fair.  The examiner stated that at
the present time the veteran was socially and vocationally
impaired.  The diagnosis on Axis I was PTSD, dysthymia, and
generalized anxiety disorder.  Axis III conditions were noted
to include severe hearing impairment which was more
pronounced on the left.

A May 1992 private psychiatric examination report reveals the
veteran had an appropriate appearance.  There was no evidence
of psychomotor agitation or retardation.  He was cooperative
during the interview.  He stated he felt isolated and that he
lacked friends.  He denied feeling suicidal or having severe
depression.  His affect was congruent and appropriate.  His
speech was pressured and loud, due to hearing loss.  He
stated he feared noises, he could not get thoughts of Vietnam
out of his mind, and felt doctors wanted to harm him.  He
reported having nightmares about the war, but that they had
diminished over the past decade.  He had no delusions.  With
respect to his thought process, he had concrete thinking,
loosing of association, and anxiety.  He was logical, but had
some flight of ideas.  His sensorium was clear.  He had good
remote memory, but had gaps related to military service.  He
also had good recent and immediate memory.  His calculation
was good.  He had difficulty with concentration, as he was
easily distracted.  He could understand the relationship
between facts and could draw conclusions.  He had no plans
for the future due to employment problems and hearing
problems.

When examined by the VA in June 1992, the veteran complained
of irritability, anger, depression, difficulty with memory
and concentration, and difficulty falling asleep.  He stated
he had war related nightmares once a month.  He also stated
he had intrusive and recurrent thoughts about Vietnam.  He
reported having flashbacks of people getting shot, numbing of
feelings, and startle responses.  He stated he had no social
life except that he took his mother to bingo.

The examiner noted the veteran was 55 years old and retired
from the military at the age of 42.  The veteran stated he
then worked for Kodak for 7 years and was laid off.  He
stated that since then he had been unable to hold and obtain
employment.  He considered his hearing problem a major
impediment in obtaining employment.  Mental status
examination revealed the veteran was tense, anxious, restless
and irritable and that he had underlying anger.  He had a
speech impediment and he rambled at times.  The examiner
noted the veteran had hearing problems.  Examination revealed
the veteran had impaired memory and concentration but no
thought disorder.  The diagnosis was PTSD.

During a June 1992 VA social survey, the social worker
recorded the veteran's present complaints, pre-service
history, military history, and employment history.  During
the interview, the social worker noted the veteran was hard
of hearing and that he had a slight speech impediment.  The
social worker stated the veteran's past memory was quite
unreliable and that his recent memory was not good.  The
veteran was irrelevant at times.  He reported he had
nightmares of his Vietnam experiences.  He stated he had sad
feelings but denied suicidal ideation.  He claimed he heard
voices twice a month.  He stated he had no significant post-
military employment because he could not work due to hearing
problems.  He reported that during the summer he worked in
his garden and in the winter he sat in the house and thought.
He stated he had never been married and never had a
significant nonlegal union.  He related he lived with his
mother and that they usually got along pretty well, but
sometimes he would blow up when he thought about Vietnam.
The assessment was combat traumatized veteran.  The social
worker reported the veteran never had significant civilian
employment and was quite isolated.  He stated the veteran's
socio-economic functioning was severely impaired.  He related
it was difficult to differentiate the extent of which he was
disabled by the head injury, and/or combat trauma, and/or
hearing loss, but that his functioning was clearly severely
limited.

In a letter dated in June 1992, a social worker from the Nam
Era Service Center stated the veteran experienced traumatic
events while in Vietnam.  He reported the veteran experienced
nightmares and flashbacks of men dying in his arms, survival
guilt, anger over the wounded and maimed comrades, and a
sense of worthlessness and isolation.  He stated the veteran
had problems readjusting to civilian demands and
expectations.  He reported the veteran felt he was different
from those around him.  He complained of sleep disturbance,
social isolation, hypervigilance, and anger with authority.
The social worker reported the veteran suffered from hearing
loss, PTSD, and dysthymia.  He stated the veteran's
depression and the disabling effects of chronic PTSD served
to make him unemployable.  He stated the veteran had sought
employment but found his presentation of confusion and
unpredictable behavior such that he was unable to secure any
position, let alone meaningful employment.  He reported the
veteran never married and felt that he was incapable of
maintaining a validating relationship.  He stated the veteran
spent most of his time tending a garden or doing chores at
home.  He reported the veteran was in psychiatric therapy at
his clinic and also at the VA.  He related that gains in
therapy had been minimal.

An October 1992 VA psychiatric examination report indicates
the veteran remained unable to work and that he received
psychiatric treatment on a regular basis.  It was reported
the veteran took medication due to his psychiatric symptoms.
The veteran stated he had irritability, angry outbursts, and
problems with concentration.  He complained of feeling on
edge all the time and of having difficulty sleeping.  He
stated he had war-related nightmares which occurred 2 to 3
times a week.  He reported having intrusive and recurrent
thoughts of Vietnam.  He stated he had flashbacks and
startled reactions.  Objective findings revealed the veteran
was tense, anxious and restless.  His speech was coherent and
relevant but his verbal productivity was increased as a
result of a high level of anxiety.  His affect was
predominantly anxious.  There was no evidence of delusions or
hallucinations.  The diagnosis was PTSD.

An October 1992 VA neurology examination was conducted for
the purpose of evaluating any encephalopathy.  During the
examination, the veteran reported sustaining a shrapnel wound
injury to the head.  He stated he thereafter noticed a
progressive loss of hearing.  He reported having a 15 to 20
year history of abusing alcohol.  He reported he was living
with his mother.  He stated he was not able to work and had
not formed any lasting relationships.  He reported he noticed
some difficulty with his memory over the years.  He related
he had nightmares and flashbacks.  On examination, he was
oriented times 3.  He could remember 3 out of 3 objects after
5 minutes.  He could name the last 5 presidents and could
spell the word "world" forwards and backwards.  He was
concrete on proverbs and on similarities.  He had problems
hearing during the examination.

The examiner stated the veteran reported with a history of
shrapnel injury to the head while he was in service.  The
examiner opined that if this was the case, it may well have
caused some type of encephalopathy leading to loss of
hearing.  The examiner reported the veteran clearly had some
cerebellar abnormalities which may be related to the 20+ year
history of alcohol use.  The examiner concluded the veteran
had diminished hearing of unknown etiology.  The examiner
opined it was impossible to stated whether the veteran's
hearing loss was related to his psychiatric difficulties.
The diagnoses were miline cerebellar and left cerebellar
dysfunction, possibly secondary to alcohol abuse; and
encephalopathy by history, etiology unknown, probably
metabolic, question as to whether secondary to alcohol abuse.

In December 1992, the VA examiner who conducted the October
1992 neurologic examination submitted an addendum clarifying
his diagnoses.  He stated the veteran had PTSD secondary to
Vietnam with anxiety and depression; cerebellar dysfunction
probably secondary to alcoholism; and encephalopathy of
unknown etiology.  The examiner stated she was unable to
further delineate cause and that no further test would help
determine if it was service related.  The examiner stated the
issue was complicated and worsened by PTSD.

The RO, in a March 1993 rating decision, granted service
connection for PTSD and assigned a 10 percent rating.  The RO
denied service connection for hearing loss.  The RO denied
the claim stating the veteran failed to report for VA
examination and that the evidence on file was insufficient to
establish service connection for hearing loss.  In March
1993, he was given notice of the rating decision.

In June 1993, the veteran submitted a notice of disagreement
with the March 1993 denial of service connection for hearing
loss.  In August 1993, he was issued a statement of the case.
He failed to submit a substantive appeal.

Outpatient treatment reports from 1993 show the veteran
complained of having flashbacks, startle responses, and
nightmares regarding his Vietnam experiences.  The reports
also show he was prescribed medication due to his psychiatric
symptoms.  Reports further show he complained of hearing
loss.

In a June 1993 statement, the veteran reported he had
nightmares, flashbacks, anxiety, nervousness, anger, loss of
memory and depression as a result of his PTSD.  He stated he
had no friends, or just of few of them, because he had
trouble trusting people, other than Vietnam veterans.  He
reported having hearing loss due to sustaining a shrapnel
injury to the left side of his head.  He stated that since
the time of the injury he had trouble hearing.  He related
that due to his hearing loss, he felt he missed out on job
opportunities.

In July 1993, the RO granted a higher rating of 30 percent
for the service-connected PTSD, effective from April 1992.

On September 1993 VA audiology examination, the veteran
reported he had no hearing in his left ear.  He stated the
onset of his hearing loss may have been during Vietnam as
that was his only history of noise exposure.  He stated he
noticed hearing loss in 1986.  Audiological studies revealed
pure tone thresholds of the right ear were 15, 20, 45, 60 and
75 decibels at 500, 1000, 2000, 3000 and 4000 hertz,
respectively.  Pure tone thresholds of the left ear were
100+, 105+, 110+, 110+, and 110+ decibels at 500, 1000, 2000,
3000 and 4000 hertz, respectively.  Speech discrimination was
40 percent in the right ear and DNT in the left ear.  The
examiner stated the tests results were of poor inter-test
consistency.

At a February 1994 VA audiological examination, the veteran
reported that during service he was exposed to bombs, rifle
shots, grenades, rocket launchers and loud military vehicles.
He stated he worked in a Mott's juice factory for 2 years.
His chief complaint was hearing loss in his left ear.  He
stated that during service his left side was exposed to
shrapnel which he felt caused his hearing loss.  Pure tone
thresholds of the right ear were 10, 20, 60, 60 and 65
decibels at 500, 1000, 2000, 3000 and 4000 hertz,
respectively  Speech discrimination was 60 percent on the
right.  The audiologist could not evaluate speech
discrimination on the left, as the words were too distorted
to repeat.  The audiologist stated the veteran had right ear
moderate high frequency sensorineural hearing loss.  Testing
of the left ear was unreliable.

On July 1994 VA neurology examination, the veteran stated he
had been depressed but denied having any memory problems.
The assessment was hearing loss on the left side, which most
probably was sensorineural hearing loss.

A March 1995 VA neurological examination report revealed the
veteran had an unremarkable examination, except for some
hearing deficit.

On May 1995 psychological assessment, the veteran reported
having nightmares.  He stated he had hearing loss due to
being exposed to shellings in service.  Mental status
examination revealed his immediate recall and recent memory
were intact.  His remote memory may have been somewhat
impaired in that some of the information presented was
contradictory.  Cognitively he was very concrete.  He
admitted having a past problem with alcohol, but he no longer
saw it as a problem.  Alcohol dependence in full remission,
PTSD, and rule out generalized anxiety disorder were
diagnosed on Axis I.  Axis IV revealed his stressors were
moderate.  Axis V revealed a global assessment of function
(GAF) score of 65.

An October 1995 hospital summary reveals the veteran was
admitted due to balance and gait problems.  Neurological
examination revealed the veteran was alert and oriented in
three spheres.  Fluency, comprehension, naming and repetition
were normal.  Short-term memory testing showed recall of
three out of three items.  His fund of knowledge was good and
his attention was good.  His calculations were good.  His
abstractions were poor and his insight was good.  Bilateral
hearing loss and an anxiety disorder were diagnosed.

In October 1995, the veteran filed a claim of service
connection for hearing loss

A November 1995 VA audiology test revealed the veteran had an
asymmetrical bilateral sensorineural hearing loss with no
measurable left ear hearing.

Treatment reports from 1995 to 1996 show the veteran was in
individual and group counseling due to PTSD.  He was
prescribed medication due to PTSD symptoms.  Reports show he
had no obvious psychotic features, but that he continued to
function marginally.  The reports also show he complained of
hearing loss and was diagnosed as having bilateral
sensorineural hearing loss.

In a January 1996 letter, a VA psychiatrist stated he treated
the veteran for approximately 2 and 1/2 years.  He stated the
veteran continued to receive treatment from another
psychiatrist.  He reported the veteran also continued to
suffer from active PTSD symptoms such as nightmares,
disturbed sleep, flashbacks and anxiety.  He stated that
during the time he treated the veteran he did not observe any
significant improvement in his condition, and therefore his
prognosis for achieving a satisfactory occupational
functioning was rather poor.

During a June 1996 VA industrial survey, the veteran stated
he continued to live with his mother and that sometimes it
was very difficult living with her.  He stated he drove her
to bingo and tried to do other things for her.  He stated he
sometimes spent time with his nephew and the nephew's family.
He related he sometimes saw his brothers and sisters.  He
stated he had lots of friends but liked to stay close to his
home.  He reported he was laid off from a job in 1987 and
that he had not worked since then.  He related he spent his
time gardening and exercising and that he liked to stay busy.
He reported he primarily stayed around the house, but that he
volunteered with the Knights of Columbus and helped out with
bingo.  The veteran stated he continued to have bad dreams
about Vietnam, but that the dreams were not as frequent as
they once were.  He reported he experienced flashbacks when
he saw "road kill" or when he gardened.  He stated he
experienced pleasure when he was able to help people out and
when he won at bingo.  He stated his concentration, long term
memory and short term memory were poor.  He stated he took
medication for anxiety.

On September 1996 VA psychiatric examination, the veteran
complained of irritability, anger, sleep disturbance,
nightmares (which had decreased), flashbacks, intrusive and
recurrent thoughts of Vietnam, panic attacks, anxiety and
restlessness.  On examination, he was tense, anxious and
restless.  His speech was coherent and relevant, but very
pressured due to high anxiety.  He appeared preoccupied and
absent minded at times.  His thought process was somewhat
slowed down.  The psychiatrist stated the veteran continued
to be very distressed by PTSD symptoms and that he was
functioning only at a marginal level.

A December 1996 VA audiological examination revealed the
veteran related a history of sustaining hearing loss
following a grenade exploding near his left ear.  The
audiologist stated the veteran had a mild to severe sloping
essentially sensorineural hearing loss in the right ear and
that there were not consistent responses obtained in the left
ear.

Outpatient treatment reports from 1997 to 1999 show the
veteran participated in a PTSD group therapy program.  The
group discussed several symptoms of PTSD and ways to cope
with such symptoms.  The group also discussed VA compensation
benefits for PTSD.  The outpatient treatment reports note the
veteran continued to receive medication for PTSD symptoms.

An August 1999 VA neurology examination revealed a diagnosis
of complete hearing loss of the left ear and mild to severe
sensorineural hearing loss of the right ear.

An August 1999 VA psychiatric report notes the veteran was 62
years old and that he complained of nightmares, anger, sleep
disturbance, flashbacks, intrusive thoughts, lack of
concentration, and forgetfulness.  He was oriented to time,
place and person.  He was anxious during the interview.  He
seemed to have impairment in both recent and remote memory.
He denied suicidal or homicidal ideation.  He reported he was
unable to work and that he last worked in 1987.  The
diagnosis was delayed PTSD.  The psychiatrist stated that the
GAF score related to PTSD would be around 55.  The
psychiatrist related the veteran continuously had flashbacks,
panic attacks and had difficulty socializing.  He noted the
veteran had not worked since 1987, and that he lacked
concentration and was becoming forgetful.

An August 1999 audiology examination revealed the veteran had
pure tone thresholds of the right ear of 25, 40, 70, 70, and
75 decibels at 500, 1000, 2000, 3000 and 4000 hertz,
respectively.  Pure tone thresholds of the left ear were 105,
105, 105, 105 and 105 decibels at 500, 1000, 2000, 3000 and
4000 hertz, respectively.  Speech recognition was 62 percent
on the right and 0 percent on the left.  The diagnosis was
mild to severe sloping sensorineural hearing loss in the
right ear and a complete lack of hearing in the left ear.

II.  Analysis

A.  New and material evidence to reopen the claim of service
connection for hearing loss

Service connection may be granted for disability resulting
from disease or injury that was incurred in or aggravated by
active service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R.
� 3.303.  Certain chronic diseases, including sensorineural
hearing loss, which become manifest to a compensable degree
within the year after service, will be rebuttably presumed to
have been incurred in service.  38 U.S.C.A. �� 1101, 1112,
1113; 38 C.F.R. �� 3.307, 3.309.

Impaired hearing will be considered a disability for VA
purposes when the auditory threshold in any of the
frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of these frequencies are 26 decibels or greater;
or when speech recognition scores using the Maryland CNC Test
are less than 94 percent.  38 C.F.R. � 3.385.

The claim for service connection for hearing loss was denied
by the RO in March 1993.  The veteran did not appeal that
decision, and it is considered to be final, with the
exception that the claim may be reopened by the submission of
new and material evidence.  38 U.S.C.A. �� 5108, 7105.  The
question now presented is whether new and material evidence
has been presented, since the May 1993 RO decision, which
would permit the reopening of the claim for service
connection for hearing loss.  Evans v. Brown, 9 Vet.App. 273
(1996); Manio v. Derwinski, 1 Vet.App. 140 (1991).  New and
material evidence means evidence not previously submitted to
agency decision makers which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim.  38 C.F.R. � 3.156; Hodge v.
West, 155 F.3rd 1356 (Fed.Cir. 1998).

Evidence available at the time of the 1993 RO decision
included the veteran's service medical records from his
lengthy active duty which ended in 1979, and post-service
medical records, including outpatient treatment reports and
VA examination reports.  The veteran's service medical
records show he had left ear hearing loss under VA standards.
He was diagnosed as having high frequency hearing loss of the
left ear.  Service medical records did not demonstrate
hearing loss of the right ear.  The earliest post-service
medical record showing treatment for hearing loss was in
1987.  At that time, auditory thresholds of the left ear met
the criteria for hearing loss under VA standards, but
auditory thresholds in the right ear did not meet the
requisite criteria.  Psychiatric examination reports dated in
1992 note the veteran complained of hearing problems.  An
October 1992 neurology examination report reveals the veteran
stated he had hearing loss after sustaining a shrapnel wound
injury to the head while in service.  The examiner stated
that if the veteran sustained a shrapnel injury to the head
it well may have caused some type of encephalopathy leading
to loss of hearing.  The examiner concluded the veteran's
hearing loss was of unknown etiology.

Evidence on file after the 1993 RO decision denying service
connection for hearing loss includes medical records and
additional contentions raised by the veteran.  The additional
medical reports shows he currently has bilateral hearing
loss.  The additional evidence also includes the veteran's
contention that he developed hearing loss after being exposed
to shellings and grenade explosions in service is also new
and material evidence.

The veteran's assertion of developing hearing loss after
exposure to shellings and grenade explosions in service and
the evidence showing he now has right ear hearing loss is
new, as it is not cumulative or redundant of previously
submitted evidence.  The evidence is also material since it
is so significant that it must be considered in order to
fairly decide the merits of the claim.  Hence, the claim for
service connection for hearing loss is reopened by new and
material evidence.

The Board finds that the reopened claim for service
connection for left ear hearing loss is supported by evidence
which makes it well grounded, meaning plausible.  38 U.S.C.A.
� 5107(a); Elkins v. West, 12 Vet.App. 209 (1999).  The Board
must next determine whether service connection for left ear
hearing loss is warranted on the merits, based on a
consideration of all the evidence of record.  In this regard,
it is noted the veteran's service awards (i.e. Combat Action
Ribbon and Purple Heart Medal) show he engaged in combat,
suggesting he was exposed to acoustic trauma.  In addition,
the veteran's service medical records show he had high
frequency hearing loss of the left ear.  Post- service
medical records show he now has no hearing in the left ear.
After a review of the entire record, and with application of
the benefit-of-the-doubt rule (38 U.S.C.A. � 5107(b)), the
Board finds that the veteran's left ear hearing loss was
incurred in service, and service connection is warranted.

With respect to the right ear, the Board finds the veteran
has not submitted a well grounded claim of service
connection.  In this regard, the Board notes that service
medical records are negative for any findings or diagnosis of
right ear hearing loss.  There is no evidence of right ear
hearing loss within the year after the veteran's 1979 service
discharge, as required for a presumption of service
incurrence.  The veteran first complained of hearing loss in
1987, many years after service, and at that time he did not
have a hearing loss disability in the right ear under the
standards of 38 C.F.R. � 3.385.  Not until 1993 does the
record show he had right ear hearing loss meeting VA
standards.  Beginning in 1994, right ear sensorineural
hearing loss was diagnosed.

The veteran has not submitted any competent medical evidence
showing that right ear hearing loss, which was first shown
many years following service, is related to service.  In
October 1992 a VA neurologist stated that if the veteran
sustained a shrapnel injury to the head in service it well
may have caused some type of encephalopathy leading to loss
of hearing.  He also stated it was impossible to state
whether the veteran's hearing loss was related to psychiatric
difficulties.  He concluded the veteran's hearing loss was of
unknown etiology.  The Board finds this statement/opinion to
be speculative and inconclusive.  As a result, it cannot
serve to make the claim of service connection well grounded.
Tirpak v. Derwinski, 2 Vet. App. 609 (1992).

Likewise the veteran's assertion that his right ear hearing
loss first noted many years after service is insufficient to
well ground his claim of service connection.  As a layman, he
is not competent to comment on medical causation or
diagnosis.  If the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
is required.  Grottveit v. Brown, 5 Vet.App. 91 (1993).

In the absence of competent evidence showing the veteran's
right ear hearing loss is related to service, including noise
exposure in service, the claim must be denied as not well
grounded.

B.  Higher rating for PTSD

The veteran's claim for a rating in excess of 30 percent for
service-connected PTSD is well grounded, meaning not
inherently implausible.  All relevant facts have been
properly developed and, therefore, the VA's duty to assist
the veteran has been satisfied.  38 U.S.C.A. � 5107(a).

Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity.  Separate diagnostic codes identify the
various disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.

The rating schedule criteria for evaluating mental disorders
changed during the pendency of the appeal.  The "old"
criteria, in effect prior to November 7, 1996, provided that
PTSD is to be rated 30 percent when there is definite
impairment in the ability to establish or maintain effective
and wholesome relationships with people, and when
psychoneurotic symptoms result in such reduction in
initiative, flexibility, efficiency, and reliability levels
as to produce definite industrial impairment. (The term
"definite" in the regulation means "distinct, unambiguous,
and moderately large in degree, more than moderate but less
than rather large." VAOPGCPREC 9-93.)  A 50 percent rating
is to be assigned when the ability to establish or maintain
effective or favorable relationships with people is
considerably impaired, and when by reason of psychoneurotic
symptoms the reliability, flexibility, and efficiency levels
are so reduced as to result in considerable industrial
impairment.  A 70 percent rating is assigned when symptoms
result in severe social and industrial impairment.  38 C.F.R.
� 4.132, Code 9411 (1996).

Under the "new" rating criteria, which became effective on
November 7, 1996, a 30 percent rating for PTSD is warranted
when there is occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent events).
A 50 percent rating is warranted when there is occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.  A 70 percent rating is assigned when the
psychiatric condition produces occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work-like
setting); inability to establish and maintain effective
relationships.  38 C.F.R. � 4.130, Code 9411 (1997)
(effective November 7, 1996).

Where laws or regulations change after a claim has been filed
or reopened but before the administrative or judicial appeal
process is completed, unless Congress provides otherwise, the
version of the law most favorable to the appellant will
apply.  Karnas v. Derwinski, 1 Vet.App. 308 (1990).  Here,
either the previous or the current rating criteria may apply,
whichever are most favorable to the veteran.

At the outset, the Board notes the veteran has a long history
of alcohol abuse.  Disability attributable to non-service-
connected alcohol abuse may not be considered in support of a
claim for a higher rating for PTSD.  38 C.F.R. � 4.14.

With regard to the veteran's industrial history, the record
demonstrates the veteran retired from the military at the age
of 42.  He then worked for Kodak for 7 years until he was
laid off.  The veteran stated he had been unable to hold or
obtain employment since that time.  Psychiatric examination
in April 1992 revealed the veteran was noted to have PTSD,
dysthymia, generalized anxiety and severe hearing impairment.
The psychiatrist stated the veteran was socially and
vocationally impaired.  In a June 1992 letter, a private
social worker stated the veteran had hearing loss, PTSD, and
dysthymia.  He stated the veteran's depression and the
disabling effects of chronic PTSD served to make the veteran
unemployable.  He stated the veteran had sought employment
but found his presentation of confusion and unpredictable
behavior such that he was unable to secure any position, let
alone meaningful employment.  In June 1992, a VA social
worker stated the veteran's socio-economic functioning was
severely impaired but that it was difficult to differentiate
the extent of which he was disabled by the head injury,
and/or combat trauma, and/or hearing loss.  A 1992 VA social
and industrial survey shows the veteran spent his time doing
chores or working in his garden.  In October 1992, a VA
psychiatrist stated the veteran remained unable to work.

Reports from 1992 show the veteran had a 20+ year history of
abusing alcohol.  In 1995, the veteran stated he no longer
had a problem with alcohol abuse.  A May 1995 psychological
assessment revealed the veteran had moderate stressors and
that he had a GAF score of 65, indicating mild industrial
impairment.  In January 1996, a VA psychiatrist stated the
veteran's prognosis for achieving a satisfactory occupational
functioning was rather poor.  In September 1996, a VA
psychiatrist stated the veteran continued to be very
distressed by PTSD symptoms and that he was functioning only
at a marginal level.  However, a 1996 VA social and
industrial survey revealed the veteran volunteered with the
Knights of Columbus, helped out with the administration of
bingo games, gardened, exercised, and visited with family.
In August 1999, a VA psychiatrist reported the veteran's GAF
score related to PTSD was 55, indicating moderate industrial
impairment.

There is nothing in the record demonstrating the veteran lost
his last employment in 1987 due to PTSD.  Rather, the record
demonstrates he was laid off.  Although the veteran has not
worked in several years, it appears from the record that his
20+ year history of alcohol abuse and other disabilities have
had an impact on his ability to obtain and maintain
employment.  He is in fact retired (and receiving retirement
benefits) and no recent attempts to work are shown.
Comprehensive VA examinations include GAF scores showing no
more than moderate impairment of industrial adaptability
attributable solely to PTSD.

As to the veteran's social history, the record shows the
veteran lived with his mother (until her death) and that they
usually got along well together.  The record also shows he
spent time with his nephew and his nephew's family and that
he sometimes saw his siblings.  At times, he stated he had no
friends and at times he reported having lots of friends.  He
stated he liked to stay busy.  He stated he had difficulty
socializing with others.  However, GAF scores of 55 and 65
are of record, indicating no more than moderate social
impairment.  The record overall demonstrates no more than
moderate social impairment.  Even if the veteran's social
impairment was more than moderate, his social impairment is
to be evaluated only as it affects industrial adaptability.
38 C.F.R. � 4.129 (effective prior to November 7, 1996);
38 C.F.R. � 4.126 (effective November 7, 1996).

The next higher rating of 50 percent is not warranted under
either the old or the new rating criteria.  The Board finds
the medical and other evidence does not show PTSD symptoms of
a magnitude to produce considerable social and industrial
impairment (the old criteria for a 50 percent rating under
Code 9411).  Nor do PTSD symptoms cause occupational and
social impairment with reduced reliability and productivity
due to symptoms such as those outlined in the new criteria
for a 50 percent rating under Code 9411.  Mental status
examinations from 1992 to 1999 show he is oriented to time,
place, and person.  He does not have any hallucinations or
delusions.  He did not have a thought disorder.  His speech
is coherent and relevant.  Although the veteran complained of
having problems with his memory, there is no indication he
has retention of only highly learned material, or that he
forgets to complete tasks.  He reports having problems
concentrating; yet, on mental status examination, he has had
no problems with calculations.

The Board notes that this is an initial rating case, and
consideration has been given to "staged ratings" since
service connection was made effective (i.e., different
percentage ratings for different periods of time).  Fenderson
v. West, 12 Vet.App. 119 (1999).  However, there appears to
have been no identifiable periods of time, since the
effective date of service connection, when PTSD was less or
more than 30 percent disabling.  Thus "staged ratings" are
inapplicable here.

In conclusion, the Board finds that the veteran's overall
PTSD disability picture most closely approximates the
criteria for a 30 percent rating, than a 50 percent rating,
and thus, the lower rating of 30 percent is to be assigned.
38 C.F.R. � 4.7.  The preponderance of the evidence is
against a higher rating for PTSD; the benefit-of-the-doubt
doctrine rule is inapplicable, and the claim must be denied.
38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App 49
(1990).

ORDER

Service connection for left ear hearing loss is granted.

Service connection for right ear hearing loss is denied.

A higher rating for PTSD is denied.

	L. W. TOBIN
	Member, Board of Veterans' Appeals


series: legacy

judge_norm: RENÉE M PELLETIER

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
Citation Nr: 0020000
Decision Date: 07/31/00    Archive Date: 08/02/00

DOCKET NO.  98-08 290	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas

THE ISSUES

1.  Entitlement to a disability rating greater than 10
percent for residuals of a fractured right tibia and fibula.

2.  Entitlement to service connection for a right hip
disorder.

ATTORNEY FOR THE BOARD

Michelle L. Nelsen, Associate Counsel

INTRODUCTION

The veteran had active duty from November 1951 to November
1955.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1997 rating decision of the
Department of Veterans Affairs (VA) Medical and Regional
Office Center (MROC) in Wichita, Kansas.

The Board construes the veteran's statements in his August
1997 and June 1999 VA examinations as an informal claim for
service connection for a right ankle disorder.  This issue
has not been adjudicated by the VAMROC.  Therefore, the Board
refers the matter to the VAMROC for the appropriate action.

REMAND

The veteran seeks an increased disability rating for
residuals of a fractured right tibia and fibula and service
connection for a right hip disorder.

Review of the June 1999 VA orthopedic examination report
reveals that the veteran reported VA medical treatment for
complaints he asserted were related to the fractures.  The
claims folder includes VA medical records dated to March 1997
only.  In addition, review of the examination report shows
that that the examiner ordered current X-rays, apparently of
the right hip and right knee.  However, claims folder does
not contain the X-ray reports.  VA is charged with
constructive, if not actual, knowledge of evidence generated
by VA.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Moreover, the examination report does not include the
examiner's analysis of the X-rays.  If an examination report
does not contain sufficient detail, it must be returned as
inadequate for rating purposes.  38 C.F.R. � 4.2.

Accordingly, the case is REMANDED to the VAMROC for the
following action:

1.  The VAMROC should attempt to secure
the veteran's VA outpatient medical
treatment records dated from March 1997
to the present.  Any records obtained
should be associated with the claims
folder.

2.  The VAMROC should secure copies of
the X-ray reports ordered in conjunction
with the June 1999 VA orthopedic
examination and associate them with the
claims folder.

3.  The VAMROC should then forward the
claims folder, if possible, to the
examiner who conducted the June 1999 VA
examination.  The examiner should be
requested to review the claims folder,
with particular attention to the
examination request, the June 1999 VA
examination report, and the June 1999 X-
ray reports.  He should be asked to
provide an addendum to the June 1999 VA
examination report that includes his
analysis of the findings shown on the X-
ray reports, as well as any changes to
his analysis provided as requested in the
examination request.

If the examiner is not available, the
VAMROC should forward the claims folder
to another qualified orthopedist with the
same instructions.

4.  After completing any necessary
development in addition to that specified
above, the VAMROC should readjudicate the
veteran's claim of entitlement to a
disability rating greater than 10 percent
for residuals of a fractured right tibia
and fibula, as well as his claim of
entitlement to service connection for a
right hip disorder.  If the disposition
of either claim remains unfavorable to
the veteran, the RO should furnish the
veteran a supplemental statement of the
case and afford him the applicable
opportunity to respond.

Thereafter, the case should be returned to the Board for
final appellate review, if in order.  The Board intimates no
opinion as to the ultimate outcome of the veteran's claim.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office.  Kutscherousky v. West, 12 Vet. App. 369
(1999).

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West Supp. 1999) (Historical and
Statutory Notes).  In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.

	REN�E M. PELLETIER
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 1999), 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) (1999).


judge_norm: BRIAN LEMOINE

disposition: granted

condition: back

text:
Citation Nr: 0021000
Decision Date: 08/10/00    Archive Date: 08/18/00

DOCKET NO.  99-06 364	)	DATE
	)
	)

Received from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia

THE ISSUE

Entitlement to service connection for a back disorder.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

David A. Brenningmeyer, Counsel

INTRODUCTION

The veteran served on active duty from December 1958 to March
1962.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a January 1998 decision by the RO in
Indianapolis, Indiana, which, among other things, denied
service connection for a back condition.  The veteran
submitted a notice of disagreement in January 1999, and the
RO issued him a statement of the case in February 1999.  The
matter was transferred to the jurisdiction of the RO in
Huntington, West Virginia, later that same month, and the
veteran's substantive appeal was received in March 1999.

In December 1999, the veteran had a video-conference hearing
before the undersigned Acting Member of the Board.  See
38 U.S.C.A. � 7107(c), (e) (West Supp. 2000); 38 C.F.R.
�� 20.700(e), 20.707 (1999).  A transcript of that hearing is
of record.

FINDINGS OF FACT

1.  During service, the veteran had multiple parachute jumps.
He also had surgery in service involving the administration
of spinal anesthesia.

2.  The veteran has a current back disorder; x-rays of his
low back have been interpreted to reveal degenerative disc
space narrowing at L1-2, L2-3, and L3-4, a right-sided
unilateral pars defect at L5, and degenerative arthritic
changes.

3.  Medical opinion evidence has been received which
indicates that the veteran's current back problems could be
service-related.

CONCLUSION OF LAW

The claim of service connection for a back disorder is well
grounded.  38 U.S.C.A. �� 1131, 5107 (West 1991 & Supp.
2000); 38 C.F.R. � 3.303 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends that service connection should be
granted for a back disorder.  He maintains that his current
difficulties can be attributed to multiple parachute jumps
and/or the administration of spinal anesthesia in service.

Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated thereby.  38 U.S.C.A. � 1131 (West Supp. 2000); 38
C.F.R. �� 3.303(a), 3.306 (1999).  Service connection is also
warranted where the evidence shows that a chronic disability
or disorder has been caused or aggravated by an already
service-connected disability.  38 C.F.R. � 3.310 (1999);
Allen v. Brown, 7 Vet. App. 439 (1995).  When disease is
shown as chronic in service, or within a presumptive period
so as to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date
are service connected unless clearly attributable to
intercurrent causes.  38 C.F.R. � 3.303(b) (1999).

A person who submits a claim for VA benefits has the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded.  Only if the claimant meets this burden does VA
have the duty to assist him in developing the facts pertinent
to the claim.  38 U.S.C.A. � 5107(a) (West 1991); Epps v.
Gober, 126 F.3d 1464 (Fed. Cir. 1997); Morton v. West,
12 Vet. App. 477, 485-86 (1999).  If the claimant does not
meet this initial burden, the appeal must fail because, in
the absence of evidence sufficient to make the claim well
grounded, the Board does not have jurisdiction to adjudicate
the claim.  Boeck v. Brown, 6 Vet. App. 14, 17 (1993).

A well-grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation.  Such a
claim need not be conclusive, but only possible, to satisfy
the initial burden of 38 U.S.C.A. � 5107(a).  To be well
grounded, however, a claim must be accompanied by evidence
that suggests more than a purely speculative basis for
granting entitlement to the requested benefits.  Dixon v.
Derwinski, 3 Vet. App. 261, 262-63 (1992).  Evidentiary
assertions accompanying a claim for VA benefits must be
accepted as true for purposes of determining whether the
claim is well grounded, unless the evidentiary assertion is
inherently incredible or the fact asserted is beyond the
competence of the person making the assertion. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).  Where the determinative
issue involves medical causation or a medical diagnosis,
competent medical evidence to the effect that the claim is
plausible or possible is required.  Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990).  A claimant cannot meet this
burden merely by presenting lay testimony, because lay
persons are not competent to offer medical opinions.
Espiritu v. Derwinski, 2 Vet. App. at 495.

The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (Court) has held that evidence pertaining to each of
three elements must be submitted in order to make a claim of
service connection well grounded.  There must be competent
(medical) evidence of a current disability; competent (lay or
medical) evidence of incurrence or aggravation of disease or
injury in service; and competent (medical) evidence of a
nexus, or link, between the in-service injury or disease and
the current disability.  Caluza v. Brown, 7 Vet. App. 498,
506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table).  The third element may in some cases be established
by the use of statutory presumptions.  See 38 U.S.C.A. � 1112
(West 1991 & Supp. 2000); 38 C.F.R. �� 3.307, 3.309 (1999).

In the present case, the Board finds that the claim of
service connection for a back disorder is well grounded.  The
record shows that the veteran had multiple parachute jumps
during service, and that he had surgery in service involving
the administration of spinal anesthesia.  VA x-rays of his
low back in May 1997 were interpreted to reveal degenerative
disc space narrowing at L1-2, L2-3, and L3-4, a right-sided
unilateral pars defect at L5, and degenerative arthritic
changes, and the record contains an opinion from a private
physician, J. Brookins Taylor, M.D., dated in April 1997,
indicating that the veteran's current back problems could be
service-related.  Under the circumstances, it is the Board's
conclusion that the requirements for a well-grounded claim
have been satisfied.  Consequently, to this extent, the
appeal is granted.

ORDER

The claim of service connection for a back disorder is well
grounded; to this extent, the appeal is granted.

REMAND

As noted above, the Board has determined that the veteran's
claim is well grounded.  Because the claim is well grounded,
VA has a duty to assist him in developing the facts pertinent
to the claim.  38 U.S.C.A. � 5107(a) (West 1991).

In this regard, the Board notes that the etiological opinion
from Dr. Taylor, while sufficient to make the veteran's claim
well grounded, does not provide an adequate basis for a grant
of service connection.  This is true because Dr. Taylor did
not provide any rationale for his opinion, because he offered
no discussion or analysis of the fact that the veteran
injured his back many years after service, in June 1979,
while working, and because there is no indication that he
reviewed all of the evidence pertaining to the veteran's
complete medical and military history prior to offering his
opinion on the matter.

The Board also notes that the record contains an unfavorable
VA opinion, contained in the report of a May 1997 examination
conducted for compensation purposes.  There, the examiner
stated, "I see no connection whatsoever between the back
pain and the spinal anesthetic."  That etiological opinion
is likewise inadequate, however, and for similar reasons;
namely, because the examiner provided no rationale for his
opinion, because he did not discuss the veteran's history of
multiple parachute jumps in service, or the role of
intervening injury in 1979, and because there is no
indication that he reviewed the veteran's complete medical
and military history prior to offering his opinion on the
matter.

The Board further notes that not all of the evidence
pertinent to the veteran's claim has been obtained for
review.  The record does not presently contain any report of
Dr. Taylor's examination of the veteran on April 9, 1997,
referred to in Dr. Taylor's letter of that same date, or a
copy of a June 6, 1998, letter from Dr. Taylor, referred to
by the veteran's representative during the December 1999
video-conference hearing.  Neither does the record contain
any treatment reports from the VA Medical Center (VAMC) in
Fort Wayne, Indiana, where the veteran has testified he
received treatment for his back; a complete set of his
service personnel records, showing the dates and duration of
his assignment to Airborne units; or any information
pertaining to whether he may have filed a workmen's
compensation claim in connection with the work-related injury
in 1979.

In the context of a claim for service connection, the duty to
assist includes the duty to provide the veteran with a
thorough and contemporaneous medical examination, one that
includes a medical opinion as to whether the claimed
disability is in any way related to service.  Moore v.
Derwinski, 1 Vet. App. 401, 405-06 (1991); Witherspoon v.
Derwinski, 2 Vet. App. 4 (1991).  Normally, in such a case,
the examiner should review the available medical records
prior to rendering his or her opinion as to the etiology of
the disorder in question.  Green v. Derwinski, 1 Vet.
App. 121, 124 (1991); VAOPGCPREC 20-95 (July 14, 1995).
Because Dr. Taylor's opinion is unsatisfactory in this
regard, because the only VA opinion on the matter is also
unsatisfactory, and because not all of the evidence pertinent
to the veteran's claim has been procured, a remand is
required.  38 C.F.R. �� 3.326, 19.9 (1999).

On remand, the RO should undertake efforts to obtain a
complete set of clinical records from Dr. Taylor, including
copies of any records of his examination of the veteran on
April 9, 1997, and a copy of the letter from Dr. Taylor dated
June 6, 1998.  The RO should also afford Dr. Taylor the
opportunity to provide a further explanation of the factual
basis for his April 1997 etiological opinion.  The RO should,
in addition, obtain a complete set of the veteran's service
personnel records, and a complete set of all pertinent VA
treatment records from the VAMC in Fort Wayne, Indiana.
Finally, the RO should ask the veteran for information
regarding any workmen's compensation claim he may have filed
in connection with the injury of his back at work in June
1979, and should contact the state workmen's compensation
agency in West Virginia for purposes of obtaining
documentation of any such claim.  Then, after all the
evidentiary development has been completed, the RO should
have the veteran scheduled for an examination for purposes of
obtaining an opinion, based on the entire record, as to
whether his currently shown back disorder is in any way
related to active military service.

For the reasons stated, this case is REMANDED to the RO for
the following actions:

1.  The RO should ask the veteran to
provide the RO with information
regarding any evidence of current or
past treatment for his back that has not
already been made part of the record,
and should assist him in obtaining such
evidence following the procedures set
forth in 38 C.F.R. � 3.159 (1999).  The
RO should undertake efforts to obtain a
complete set of clinical records from
Dr. Taylor, including copies of any
records of his examination of the
veteran on April 9, 1997, referred to in
Dr. Taylor's letter of that same date,
and a copy of a June 6, 1998, letter
from Dr. Taylor, referred to by the
veteran's representative during the
December 1999 video-conference hearing.
The RO should also make an effort to
ensure that all relevant records of VA
treatment have been obtained for review,
including all pertinent records of
treatment from the VAMC in Fort Wayne,
Indiana.  The veteran should be given a
reasonable opportunity to respond to the
RO's communications, and any additional
evidence received should be associated
with the claims folder.

2.  The RO should also ask the veteran
to provide the RO with information as to
whether he filed a workmen's
compensation claim in connection with
the injury of his back at work in June
1979.  The RO should request the veteran
to affirmatively indicate whether he
filed any such claim, and should ask him
to provide the RO with copies of any
documents pertaining to such claim, if
one was filed.  The veteran should be
given a reasonable opportunity to
respond to the RO's communications, and
any additional evidence received should
be associated with the claims folder.

3.  The RO should contact Dr. Taylor and
afford him the opportunity to provide a
further explanation of the factual basis
for his April 1997 etiological opinion.
Dr. Taylor should be given a reasonable
opportunity to respond to the RO's
communications, and any additional
evidence received should be associated
with the claims folder.

4.  The RO should contact the National
Personnel Records Center and request a
complete copy of the veteran's service
personnel record, to include his duties
and assignments, in order to determine
the amount of time he spent on Airborne
status.  The evidence received should be
associated with the claims folder.

5.  The RO should contact the state
workmen's compensation agency in West
Virginia and request that the agency
conduct a search of its records to
ascertain whether the veteran filed a
workmen's compensation claim in
connection with the injury of his back
at work in June 1979.  The RO should
request the agency to affirmatively
indicate whether or not a claim was
filed by the veteran, and should ask the
agency to provide copies of any
documents pertaining to the disposition
of such claim.  The evidence received
should be associated with the claims
folder.

6.  After all of the above development
has been completed, the RO should
schedule the veteran for an orthopedic
examination.  The examining physician
should review the claims folder,
including a copy of this remand, examine
the veteran, and offer an opinion as to
whether it is at least as likely as not
that the veteran has a current back
disorder that can be attributed to
active military service.  The examiner
should specifically note, and comment
upon, the veteran's history of multiple
parachute jumps in service, the surgery
in service involving the administration
of spinal anesthesia, the intervening
work injury in 1979, and the opinion(s)
offered by the veteran's private
physician, Dr. Taylor.  A complete
rationale for all opinions should be
provided.

7.  The RO should thereafter take
adjudicatory action on the claim of
service connection for a back disorder.
If the benefit sought is denied, a
supplemental statement of the case
(SSOC) should be issued.

After the veteran and his representative have been given an
opportunity to respond to the SSOC, the claims folder should
be returned to this Board for further appellate review.  No
action is required by the veteran until he receives further
notice, but he may furnish additional evidence and argument
while the case is in remand status.  Kutscherousky v. West,
12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109
(1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).
The purposes of this remand are to procure clarifying data
and to comply with governing adjudicative procedures.  The
Board intimates no opinion, either legal or factual, as to
the ultimate disposition of this appeal.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, the Veterans Benefits Administration's
Adjudication Procedure Manual, M21-1, Part IV, directs ROs to
provide expeditious handling of all cases that have been
remanded by the Board and the Court.  See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.

	BRIAN LEMOINE
	Acting Member, Board of Veterans' Appeals


judge_norm: HEATHER J HARTER

disposition: denied

text:
Citation Nr: 0022000
Decision Date: 08/18/00    Archive Date: 08/23/00

DOCKET NO.  99-01 121	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona

THE ISSUE

Entitlement to service connection for post-traumatic stress
disorder (PTSD).

REPRESENTATION

Veteran represented by:	AMVETS

ATTORNEY FOR THE BOARD

L. M. Rogers, Associate Counsel

INTRODUCTION

The veteran had active military service from December 1985 to
May 1987, when she was discharged on account of physical
disability.

This matter comes to the Board of Veterans' Appeals (Board)
from a September 1998 rating decision of the Department of
Veterans Affairs (VA) Phoenix, Arizona Regional Office (RO).
In that decision the RO denied service connection for PTSD.
The veteran perfected an appeal of the September 1998
decision.

The veteran requested the opportunity to present testimony in
support of his claim at a personal hearing before a Member of
the Board of Veterans' Appeals (Board).  Such a hearing was
scheduled for April 1999.  She was notified of the scheduled
time and place but failed to appear for the hearing.  When an
appellant elects not to appear at the prescheduled hearing
date, the request for a hearing will be considered to have
been withdrawn.  38 C.F.R. � 20.704(c).  The claim will thus
be adjudicated without further delay based upon all the
evidence presently of record.

FINDING OF FACT

There is no competent evidence tending to show a nexus
between PTSD and active service.

CONCLUSION OF LAW

The claim for entitlement to service connection for PTSD is
not well-grounded.  38 U.S.C.A. � 5107 (West 1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Factual Background

Review of the veteran's service medical records indicates
that in March 1986 the veteran complained of suffering from
emotional problems.  At that time, the veteran denied having
suicidal ideations.

In June 1986, it was noted that the veteran did not have any
psychiatric disorder or emotional illness.  The veteran was
also not suffering from any suicidal or homicidal ideations.

A September 1986 report of medical examination shows a
diagnosis of an atypical bipolar disorder and an atypical
eating disorder.

In October 1986 the Medical Evaluation Board (MEB) found that
the veteran's atypical bipolar disorder and atypical eating
disorder existed prior to service.  The MEB determined that
the veteran was unfit for further military service and issued
a medical discharge.

The veteran initially claimed entitlement to VA disability
compensation for PTSD in November 1997.  She based her claim
on her belief that she suffers from PTSD as the result of
having witnessed a roommate being raped in service.

A December 1997 VA Medical Center (VAMC) outpatient treatment
report shows that the veteran was suffering from severe
anxiety after someone broke into her car.  She also reported
reliving a rape experience but there was no evidence of
current suicidal intent.  On examination, the veteran was
anxious and somewhat disorganized due to anxiety, but there
was no evidence of acute psychosis.  Impression was bipolar
disorder by history and panic disorder with agoraphobia and
acute situational exacerbation.

During a June 1998 psychiatric examination, the veteran told
the VA examiner that while in the service she witnessed the
sexual assault of her roommate.  She stated that she was
threatened by the assaulters not to talk about the assault or
she would be harmed herself.  The veteran explained that
because of those threats she did not report the assault.

The VA examiner described the veteran's presentation as very
scattered and rambling.  It was noted that it was difficult
for the veteran to answer questions directly.  The veteran
reported that when under stress she has flashbacks about the
sexual assault.  According to her, these flashbacks occur
about three times a week and may last for several minutes.
She stated that she has problems with anger and irritability,
particularly in relation to authority.  She also reported
having a recent altercation or disagreement with a policeman.
The veteran stated that she has some suicidal ideation, an
inability to sleep, and an eating disorder.  The VA examiner
diagnosed the veteran with an atypical bipolar mood.  The VA
examiner also found that there was not sufficient clinical
symptomatology to warrant a diagnosis of PTSD.

In July 1998, the veteran was hospitalized at a VAMC and
diagnosed with probable generalized anxiety disorder with
panic attacks and agoraphobia and a possible bipolar disorder
by history.  The veteran reported having recent flashbacks
about her roommate being raped and she also reported that
she, herself, had been raped about a year previously.

VAMC outpatient treatment records from August 1998 show that
the veteran received treatment for interpersonal relationship
problems, legal problems, impulsive behaviors, anger,
fluctuating depression, fear of men, and fear of rape.
Impression was borderline personality disorder, PTSD, and
possible bipolar disorder.

On a September 1998 PTSD stressor worksheet, the veteran
reported that she is fearful of men, she has difficult
relationships with men, and she has attempted suicide.

II. Laws and Regulations

Under the law, service connection can be granted for any
disability resulting from disease or injury incurred in or
aggravated during active military service.  38 U.S.C.A.
� 1131.

As to a PTSD claim, the United States Court of Appeals for
Veterans Claims (Court) has held that such a claim is well-
grounded where there is medical evidence of a current
diagnosis of PTSD, lay evidence of an in-service stressor,
and medical-nexus evidence linking PTSD to the veteran's
service.  See Gaines v. West, 11 Vet. App. 353 (1998); Cohen
v. Brown, 10 Vet. App. 128, 136-137 (1997).

After it has been determined that a PTSD claim is well-
grounded, the merits of the claim must be adjudicated.
Eligibility for a PTSD service connection award requires a
medical diagnosis of PTSD, credible supporting evidence that
the claimed in-service stressor actually occurred, and
medical evidence of a causal nexus between the current
symptomatology and the specific claimed in-service stressor.
See 38 C.F.R. � 3.304(f); Gaines, 11 Vet. App. at 357; Cohen,
10 Vet. App. at 138.

The evidence necessary to establish the occurrence of a
recognizable stressor during service to support a claim of
entitlement to service connection for PTSD will vary
depending on whether or not the veteran was engaged in combat
with the enemy.  If the claimed stressor is related to
combat, and the evidence shows that the veteran served in
combat, his lay testimony may be sufficient to establish that
the claimed incidents occurred.  If the veteran did not serve
in combat, or the claimed stressors are not related to
combat, corroborating evidence is required to show that the
claimed events actually occurred.  Moreau v. Brown, 9 Vet.
App. 389 (1996).

III. Analysis

An impression of PTSD and PTSD symptoms noted in an August
1998 VAMC outpatient treatment report satisfies the first
element of Gaines because there is a current medical
diagnosis of PTSD.  The veteran has provided lay evidence of
an in-service stressor by recounting a rape she witnessed
while in the service.  Her statements about this incident
must be presumed to be credible at this procedural stage.
King v. Brown, 5 Vet. App. 19 (1993).  Thus, for purposes of
analyzing whether the claim is well-grounded, the Board finds
that the second Gaines element, lay evidence of an in-service
stressor, has been satisfied.

The Board notes, however, that although in August 1998 the VA
treating physician recorded an impression of PTSD and PTSD
symptoms, he did not specifically link the veteran's PTSD to
the actual rape incident that she reported occurred during
service.  Since her discharge from the service the veteran
has reported that she has been raped herself, she has been in
altercations with authority, and she has received treatment
for several other mental disorders.  Furthermore, there is no
evidence tending to show that the 1998 physician has reviewed
the veteran's service medical records, rather, it would
appear that the diagnoses rendered for treatment purposes at
that time were based solely upon the veteran's own reported
history in conjunction with the physician's clinical
impressions.  The record does not include any other diagnoses
indicative of PTSD, although the record includes many mental
health treatment reports showing other psychiatric
disabilities.  Consequently, the Board finds no evidence of a
medical nexus between PTSD and the veteran's service.

The only remaining evidence purporting to link the
development of PTSD to service is the veteran's own
assertions.  Statements prepared by lay persons ostensibly
untrained in medicine cannot constitute competent medical
evidence to render a claim well grounded.  However, the
capability of a witness to offer such evidence is different
from the capability of a witness to offer evidence that
requires medical knowledge.  For the most part, a witness
qualified as an expert by knowledge, skill, experience,
training, or education must provide medical testimony.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  Here,
the record does not indicate that the veteran possesses the
requisite expertise to render a medical opinion.

In the absence of evidence tending to demonstrate a nexus
between PTSD and service, the Board is constrained to hold
that the claim of entitlement to service connection for PTSD
is not well-grounded.  Because the record does not include
competent medical evidence satisfying the third and final
element of a well-grounded claim, the claim is not well
grounded.  VA cannot assist the veteran in further
development of the claim.  38 U.S.C.A. � 5107(a); Morton,
12 Vet. App. at 485.

Although where claims are not well grounded VA does not have
a statutory duty to assist the claimant in developing facts
pertinent to the claim, VA may be obligated under 38 U.S.C.A.
� 5103(a) to advise a claimant of evidence needed to complete
the application.  This obligation depends upon the particular
facts of the case and the extent to which VA has advised the
claimant of the evidence necessary to be submitted with a VA
benefits claims.  Robinette v. Brown, 8 Vet. App. 69 (1995).

In this case, the RO fulfilled its obligation under � 5103(a)
in a May 1998 letter to the veteran, outlining the type of
evidence which would tend to support her claim and informing
her of the necessity for submitting such evidence, and in the
December 1998 statement of the case.  Furthermore, the RO's
actions in this case following receipt of the veteran's claim
for entitlement to service connection for PTSD appear to be
in accordance with the development required of claims
involving allegations of personal assault.  See Patton v.
West, 12 Vet. App. 272 (1999); VA ADJUDICATION PROCEDURE MANUAL
M21-1, Part III,  5.14 (Feb. 20. 1996).  See also YR v.
West, 11 Vet. App. 393 (1998) ( 5.14 is a substantive rule
and the equivalent of a VA regulation).  On appellate review,
the Board sees no areas in which further development may be
fruitful.

When the Board addresses in its decision a question that has
not been addressed by the RO, in this case well groundedness,
it must consider whether the veteran has been given adequate
notice to respond and, if not, whether he has been prejudiced
thereby.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The
Board finds that the veteran has been accorded ample
opportunity by the RO to present argument and evidence in
support of his claim.  Any error by the RO in deciding this
case on the merits, rather than being not well grounded, was
not prejudicial to the veteran.

ORDER

The claim of entitlement to service connection for PTSD is
denied.

	Heather J. Harter
	Acting Member, Board of Veterans' Appeals

	(CONTINUED ON NEXT PAGE)

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judge_norm: NANCY I PHILLIPS

condition: gi

text:
Citation Nr: 0023000
Decision Date: 08/29/00    Archive Date: 09/01/00

DOCKET NO.  98-07 392	)	DATE
	)
	)

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

THE ISSUE

Evaluation of hiatal hernia with history of ulcerative
colitis and ulcerative proctitis, status post colonoscopies,
evaluated as 30 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

C. L. Mason, Associate Counsel

INTRODUCTION

The veteran served on active duty from September 1976 to
September 1996.  This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a May 1997 rating
decision of the Montgomery, Alabama Department of Veterans
Affairs (VA) Regional Office (RO), which granted service
connection for hiatal hernia with history of ulcerative
colitis and ulcerative proctitis, status post colonoscopy and
assigned a 10 percent evaluation.

The veteran and his representative appeared before a Member
of the Board via a videoconference hearing at the RO in
February 1999.  In June 1999, the Board REMANDED this issue
to the RO for additional development.  Following the receipt
of additional evidence, the RO, in an October 1999 rating
decision, increased the evaluation to 30 percent effective
from the date of the veteran's separation from service.

Preliminary review of the record does not indicate that the
RO expressly considered referral of the veteran's claim for
higher evaluation for his hiatal hernia with history of
ulcerative colitis and ulcerative proctitis, status post
colonoscopies to the VA Undersecretary for Benefits or the
Director, VA Compensation and Pension Service for the
assignment of an extraschedular rating under 38 C.F.R. �
3.321(b)(1) (1999).  That regulation provides that to accord
justice in an exceptional case where the schedular standards
are found to be inadequate, the field station is authorized
to refer the case to the Undersecretary for Benefits or the
Director, VA Compensation and Pension Service for assignment
of an extraschedular evaluation commensurate with the average
earning capacity impairment.  The governing criteria for such
an award is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards.  The United
States Court of Appeals for Veterans Claims (Court) has held
that the Board is precluded by regulation from assigning an
extraschedular rating under 38 C.F.R. � 3.321(b)(1) (1999) in
the first instance; however, the Board is not precluded from
raising this question, and in fact is obligated to liberally
read all documents and oral testimony of record and identify
all potential theories of entitlement to a benefit under the
law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).
The Court has further held that the Board must address
referral under 38 C.F.R. � 3.321(b)(1) only where
circumstances are presented which the Director of VA's
Compensation and Pension Service might consider exceptional
or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Having reviewed the record with these mandates in mind, the
Board finds no basis for further action on this question.
VAOPGCPREC 6-96 (1996).

FINDINGS OF FACT

1.  The veteran's service-connected hiatal hernia with
history of ulcerative colitis and ulcerative proctitis,
status post colonoscopies is manifested principally by
epigastric burning pain, heartburn, reflux, intermittent
diarrhea and constipation, and loose stools.

2.  The hiatal hernia, the predominant disability, with
history of ulcerative colitis and ulcerative proctitis,
status post colonoscopies, does not cause vomiting, material
weight loss and hematemesis or melena with moderate anemia;
and is not productive of severe impairment of health.

3.  The severity of the overall disability does not warrant
elevation to the next higher evaluation.

CONCLUSION OF LAW

The criteria for an evaluation in excess of 30 percent for
the veteran's hiatal hernia with history of ulcerative
colitis and ulcerative proctitis, status post colonoscopies
have not been met.  38 U.S.C.A. �� 1155, 5107(b) (West 1991);
38 C.F.R. �� 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7323,
7346 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board finds that the veteran's claim for a higher
evaluation is well grounded within the meaning of 38 U.S.C.A.
� 5107(a)(West 1991).  Where the claimant is awarded service
connection for a disability and subsequently appeals the RO's
initial assignment of an evaluation for the disability, the
claim continues to be well grounded as long as the rating
schedule provides for a higher evaluation and the claim
remains open.  Shipwash v. Brown, 8 Vet. App. 218, 225
(1995).  The veteran has not alleged that any records of
probative value that may be obtained, and which have not
already been requested by the VA or associated with his
claims folder, are available.  The Board accordingly finds
that the duty to assist, as mandated by of 38 U.S.C.A.
� 5107(a)(West 1991), has been satisfied.

The Board has considered the issue raised by the Court in
Fenderson v. West, 12 Vet. App. 119 (1999).  With respect to
this issue, the Board has continued this issue as entitlement
to an increased evaluation.  The veteran is not prejudiced by
the naming of this issue.  The Board has not dismissed any
issue and the law and regulations governing the evaluation of
disabilities is the same regardless of how the issues have
been phrased.  It also appears that the Court has not
provided a substitute name for this type of issue.  In
reaching the subsequent determination, the Board has
considered whether staged ratings should be assigned.  Before
the Board may execute a staged rating of the veteran's
disability, it must be determined that there is no prejudice
to the veteran to do so without remand to the RO for that
purpose.  Bernard v. Brown, 4 Vet. App. 384, 389 (1993).  As
the regulations and rating criteria to be applied are the
same, the Board finds no prejudice to the veteran in
considering the issue as entitlement to higher evaluation on
appeal from the initial grant of service connection.

Service medical records reveal that hiatal hernia with reflux
disease, ulcerative colitis, and ulcerative proctitis were
diagnosed during service.  During service, the veteran
underwent several colonoscopies for ulcerative colitis.  The
veteran retired from active duty in September 1996.  At a
January 1997 VA examination, the veteran's history of hiatal
hernia and ulcerative colitis after an episode of bloody
stools was noted.  He reported that his most recent
colonoscopy was negative.  The veteran complained of
heartburn and dyspepsia after drinking coffee, tea, soda, or
orange juice or when lying down and occasional loose stools.
On evaluation, the abdomen was soft, there was no tenderness,
mass or palpable organs.  A rectal examination was normal.
The diagnoses included chronic dyspepsia, etiology uncertain
and ulcerative colitis in remission.  In a May 1997 rating
decision, the RO granted service connection for hiatal hernia
with history of ulcerative colitis and ulcerative proctitis,
status post colonoscopy and assigned a 10 percent evaluation.

Private medical records from May 1997 to August 1999 reveal
that the veteran has been followed by a private physician,
RRB, M.D, for hiatal hernia and history of ulcerative
colitis.  Records from May 1997 to July 1997 reflect that the
veteran was referred from a military facility with complaints
of increased mucous and intermittent bleeding in his stools,
gas, and approximately 2 to 3 bowel movements per day.  His
weight was 266 lbs.  The veteran also complained of abdominal
pain with increased gastroesophageal reflux.  A June 1997
colonoscopy revealed chronic active ulcerative colitis.
Private medical records from August 1997 to November 1997
show that the veteran was seen complaining of increased
reflux symptoms and chest discomfort with burning
occasionally lasting all day.  A September 1997 endoscopy was
positive for antral Helicobacter Pylori.  In November 1997,
Dr. B reported that the veteran was still experiencing mucoid
stools and episodes of urgency and frequency, but his
symptoms have improved.  His weight was reported to be 270
lbs.  The impression was fairly well controlled ulcerative
colitis and moderately severe reflux.  Private medical
reports from February 1998 to May 1998 show that the veteran
was seen in February following an exacerbation of viral
gastroenteritis with abdominal pain, diarrhea, and myalgia.
His symptoms improved with treatment but he began to
experience worsening dyspepsia and indigestion.  Normoactive
bowel sounds were noted in all four quadrants.  The veteran's
weight was 276 lbs.  The impression was dyspepsia secondary
to Helicobacter pylori gastritis and ulcerative colitis.
Private medical records from August 1998 to August 1999 show
diagnoses of mild ulcerative colitis and hiatal hernia with
gastroesophageal reflux disease, stable.  A January 1999
colonoscopy revealed mild ulcerative colitis, apparently
under good control.  During this time his weight ranged from
274 to 277 lbs.  In an August 1999 letter, Dr. B stated that
the veteran's ulcerative colitis and hiatal hernia with
reflux were both fairly well controlled with medication.

At his February 1999 videoconference hearing, the veteran
testified that he experienced daily heartburn and acid reflux
at night for which he took Tums or Rolaids.  The veteran
denied weight loss or bleeding other than occasional blood in
the stool due to his ulcerative colitis.  With respect to his
ulcerative colitis, he reported that he experienced abdominal
pains with constipation or diarrhea about once a week.

The RO, in an October 1999 rating decision, increased the
evaluation for hiatal hernia with history of ulcerative
colitis and ulcerative proctitis, status post colonoscopy to
30 percent disabling effective from October 1, 1996.

Disability evaluations are determined by comparing the
veteran's current symptomatology with the criteria set forth
in the Schedule for Rating Disabilities.  38 U.S.C.A. � 1155
(West 1991); 38 C.F.R. Part 4 (1999).  Where there is a
question as to which of two disability evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating.  Otherwise, the lower rating will
be assigned.  38 C.F.R. � 4.7 (1999).  A 10 percent
disability is warranted for moderate ulcerative colitis with
infrequent exacerbations.  Moderately severe ulcerative
colitis with frequent exacerbations warrants a 30 percent
evaluation.  A 60 percent evaluation is warranted for severe
ulcerative colitis with numerous attacks a year and
malnutrition, health only fair during remissions.  Pronounced
ulcerative colitis resulting in marked malnutrition, anemia,
and general debility, or with serious complication as liver
abscess warrants a 100 percent evaluation.  38 C.F.R.
� 4.114, Diagnostic Code 7323 (1999).

Under Diagnostic Code 7346, a 10 percent disability
evaluation is warranted for a hiatal hernia with two or more
symptoms for the 30 percent evaluation of less severity.  A
hiatal hernia with persistently recurrent epigastric distress
with dysphagia, pyrosis, and regurgitation, accompanied by
substernal or arm or shoulder pain, productive of
considerable impairment of health warrants a 30 percent
evaluation.  A 60 percent evaluation requires hiatal hernia
with symptoms of pain, vomiting, material weight loss and
hematemesis or melena with moderate anemia; or other symptom
combinations productive of severe impairment of health.  38
C.F.R. � 4.114, Diagnostic Code 7346 (1999).

The Board notes that the veteran contended that his hiatal
hernia and ulcerative colitis should be evaluated separately.
However, the regulations state that ratings under diagnostic
codes 7301 to 7329 inclusive, 7331, 7342, and 7345 to 7348
inclusive, will not be combined with each other.  A single
evaluation will be assigned under the diagnostic code which
reflects the predominant disability picture, with elevation
to the next higher evaluation where the severity of the
overall disability warrants such evaluation.  38 C.F.R.
� 4.114 (1999).  Here, the RO, correctly, has determined the
predominant disability and evaluated the veteran's disability
under the appropriate diagnostic code.

Upon the evidence of record, the Board concludes that
predominant disability in the instant case is the hiatal
hernia.  The record shows that although the veteran has
recurrent diarrhea and constipation along with loose stools
due to ulcerative colitis, this disorder has been
characterized as mild, and its symptoms as occasional and
controlled.  On the other hand, he indicates that his
predominant symptoms are that of reflux and burning due to
hiatal hernia.  Thus, the Board finds that the veteran's
current symptoms are predominantly attributable to hiatal
hernia and thus evaluated under Diagnostic Code 7346.

After reviewing the evidence, the Board notes that during
recent private examinations, the veteran's complaints
included persistent recurring epigastric distress, heartburn
and daily acid reflux for which he took medication.  He did
not have vomiting, material weight loss, and hematemesis or
melena with moderate anemia; or other symptom combinations
productive of severe impairment of health.  On the contrary,
his weight was stable, his appetite was normal, and he was
described as well developed, well nourished and nutritionally
normal.  Accordingly, the Board finds that the predominant
disability picture, hiatal hernia, does not warrant an
evaluation in excess of 30 percent pursuant to 38 C.F.R.
� 4.114, Diagnostic Code 7346 (1999).

Moreover, although the Board found that hiatal hernia was the
predominant disability, even assuming that the veteran's
ulcerative colitis was the predominant disability, an
evaluation in excess of 30 percent would not be warranted.
Although the veteran experienced recurring attacks including
alternating constipation and diarrhea, occasional loose
and/or bloody stools, and abdominal pain, his weight was
stable, his appetite was normal, and he was described as well
developed and well nourished.  There were no findings of
severe ulcerative colitis with numerous attacks a year and
malnutrition, and only fair health during remissions.
Accordingly, even assuming that the predominant disability
picture was that of ulcerative colitis, the evidence would
not warrant an evaluation in excess of 30 percent pursuant to
38 C.F.R. � 4.114, Diagnostic Code 7323 (1999).

Finally, the Board does not find that the severity of the
overall disability picture warrants elevation to the next
higher evaluation.  As indicated above, the veteran does have
malnutrition, anemia, weight loss of impairment in health due
to service connected disability.  The preponderance of the
evidence is against the claim, and the benefit of the doubt
is not for application.

ORDER

An evaluation in excess of 30 percent for hiatal hernia with
history of ulcerative colitis and ulcerative proctitis,
status post colonoscopies is denied.

	NANCY I. PHILLIPS
	Member, Board of Veterans' Appeals