judge_norm: MICHAEL D LYON

condition: psychiatric

text: “New” and “material” evidence having not been presented, the claims for entitlement to service connection for prostatitis, hepatitis, and a psychiatric disorder are not reopened, and the benefits sought in connection with these claims are denied.

text:
Citation NR: 9710000
Decision Date: 03/24/97		Archive Date: 04/02/97
DOCKET NO.  94-32 769	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana

THE ISSUES

1.  Entitlement to service connection for epididymitis.

2.  Whether new and material evidence has been presented to
reopen a claim for entitlement to service connection for
prostatitis.

3.  Whether new and material evidence has been presented to
reopen a claim for entitlement to service connection for
hepatitis.

4.  Whether new and material evidence has been presented to
reopen a claim for entitlement to service connection for a
psychiatric disorder.

REPRESENTATION

Appellant represented by:	Kevin McClue, Attorney

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Associate Counsel

INTRODUCTION

The veteran served on active duty from March 1972 to
September 1974.

This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from adverse action by the New
Orleans, Louisiana, Regional Office (hereinafter RO).  In
June 1996, a hearing was held at the RO before the Board
member rendering this decision, who was designated by the
Chairman to conduct the hearing pursuant to 38 U.S.C.A.
� 7102 (West 1991 & Supp. 1996).

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends in essence that he currently has
disability associated with epididymitis that is etiologically
related to similar pathology incurred during service.
Accordingly, it is contended that service connection for this
disability is warranted.  It is also contended that
sufficient �new� and �material� evidence has been submitted
to reopen, and ultimately allow, claims for service
connection for prostatitis, hepatitis, and a psychiatric
disorder.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that a well-grounded claim for
entitlement to service connection for epididymitis has not
been submitted and that new and material evidence has not
been presented to reopen claims for entitlement to service
connection for prostatitis, hepatitis and a psychiatric
disorder.

FINDINGS OF FACT

1.  There is no competent evidence of record showing an
etiologic nexus between a current disability associated with
epididymitis and in-service pathology.

2.  Entitlement to service connection for prostatitis was
originally denied by the Board in a December 1984 decision;
an October 1991 rating decision found no new and material
evidence to reopen a claim for service connection for
prostatitis and the veteran was notified in November 1991
that he had not submitted sufficient evidence to reopen this
claim.  A January 1992 rating decision confirmed the denial
of the veteran�s claim to the extent that it held that
additional evidence submitted subsequent to the October 1991
rating decision did not establish a factual basis upon which
to grant the claim for entitlement to service connection for
prostatitis.  The veteran was notified of all pertinent
decisions.  These were the last final adjudicative actions
addressing this issue on any basis.

3.  Entitlement to service connection for hepatitis was
originally denied by the Board in March 1990; this was the
last final adjudicative action addressing this issue on any
basis.

4.  Entitlement to service connection for a psychiatric
disorder was originally denied by the Board in October 1981;
an October 1991 Board decision found no new and material
evidence to reopen this claim and this was the last final
adjudicative action addressing this issue on any basis.

5.  None of the additional evidence received since the last
final adjudicative actions addressing the issues of
entitlement to service connection for prostatitis, hepatitis
and a psychiatric disorder, when viewed in the context of all
the evidence of record, results in a reasonable possibility
of changing the outcome of the veteran�s claims that he
currently has disability associated with prostatitis,
hepatitis, or a psychiatric disorder that is etiologically
related to in-service pathology.

CONCLUSIONS OF LAW

1.  A well-grounded claim for entitlement to service
connection for epididymitis has not been presented.
38 U.S.C.A. �� 1110, 5107(a) (West 1991); 38 C.F.R. �  3.303
(1996).

2.  �New� and �material� evidence sufficient to reopen the
claims for service connection for prostatitis, hepatitis, and
a psychiatric disorder has not been presented.  38 U.S.C.A.
��  5107, 5108, 7104, 7105 (West 1991); 38 C.F.R. � 3.156
(1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Entitlement to Service Connection for Epididymitis

Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.

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.  38 U.S.C.A. � 5107(a).  There is no further duty
to assist the veteran if a well-grounded claim is not
submitted.  Tirpak v. Derwinski, 2 Vet.App. 609 (1992);
Murphy v.  Derwinski, 1 Vet.App. 78 (1990).  The evidentiary
assertions by the veteran are to be accepted as true for the
purposes of determining whether a claim is well grounded,
except where the evidentiary assertion is inherently
incredible or is beyond the competence of the person making
the assertion.  See King v. Brown, 5 Vet.App. 19 (1993).  The
United States Court of Veterans Appeals has also stated that
medical evidence showing a nexus between present disability
and in-service pathology is required to form a well-grounded
claim for service connection.  Caluza v. Brown, 7 Vet.App.
498, 506 (1995); see also Edenfield v. Brown, 8 Vet.App. 384,
388 (1995).  While such a nexus is claimed by the veteran,
there is no competent objective evidence of record linking a
current disability associated with epididymitis to in-service
pathology.  He is not competent to establish that medical
nexus.  As such, the claim for service connection for
epididymitis is not well grounded and must therefore be
denied.

In summarizing the relevant clinical evidence of record, the
Board notes that a service medical record dated in June 1972
showed the veteran reporting pain in the right spermatic cord
and testicles.  Upon examination, a tender spermatic cord and
epididymis were shown, and the impression was probable
epididymitis.  Records of approximately two days of inpatient
treatment for the veteran�s epididymitis in June 1972, to
include a �Brookline Bridge� to support the testicles, were
associated with the claims file at the time of a March 1996
hearing before a hearing officer.  These records do not
reflect a residual disability associated with this condition
upon his discharge from the hospital.  Thereafter, an August
1972 report from a dispensary reflects treatment for gram
negative diplococci, and a January 1973 service medical
record reflects treatment for abdominal cramps.  It was
indicated in that month that the veteran was noted to have no
discharge.  No further treatment for genitourinary symptoms
during service is shown, and the veteran did not indicated
that he had a genitourinary disorder on a Report of Medical
History compiled in August 1974 shortly before separation
from service.  The August 1974 separation examination was
negative except for mild lumbar muscle spasms.

After service, VA outpatient treatment records dated in
October 1975 showed the veteran with complaints of back pain,
and it was noted that he had no burning on urination.  The
veteran was afforded a VA physical examination in November
1975 at which time he complained of left flank pain.
However, the genitourinary examination conducted at that time
was negative.  In August 1976, the veteran reported to a VA
medical facility with complaints of long-standing painful
urination.  He also reported that his urine had been of a
dark yellow color.  The diagnoses at that time did not
include epididymitis.  VA outpatient treatment records dated
in 1977 and 1978 do not reflect a diagnosis of or complaints
consistent with epididymitis, nor does any of the clinical
evidence dated until 1984.  A January 1984 �Social Assessment
Update� does indicate that the veteran was in receipt of
medication from a genitourinary clinic for a �possible
infection.�  A February 1986 outpatient treatment record
reflects a diagnosis of a urinary tract infection.  No
clinical report of record thereafter reflects a diagnosis of
epididymitis, and while the veteran reported to a VA examiner
in May 1991 that he had penile bleeding, a physical
examination at that time showed a normal penis, a non-tender
prostate and no testicular swelling.

In reviewing the evidence of record summarized above, the
Board has also considered the argument propounded by the
veteran in the form of written contentions and sworn
testimony contending that service connection for epididymitis
is warranted because he has current disability associated
with this disorder that is the result of the in-service
epididymitis.  However, absent any independent supporting
clinical evidence from a physician or other medical
professional, statements by laypersons expressing the opinion
that disabilities are service connected are not probative.
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).  There is
no definitive independent clinical evidence of record
supporting the veteran�s assertions,  and the objective
clinical evidence that is of record, as summarized in the
preceding paragraph, contradicts, rather than supports, these
assertions.  Of most relevance in this regard is the fact
that while the service medical records reflect treatment for
epididymitis in June 1972, the remaining service medical
records do not reflect treatment for this condition, and the
examination and medical history compiled upon separation from
service do not refer to epididymitis or any other
genitourinary disorder.  Moreover, the post service clinical
evidence most proximate to service from 1975 to 1978 as
described above did not reflect the existence of this
condition, and the clinical evidence dated thereafter does
not include any competent evidence of record linking a
present disability associated with epididymitis to in-service
symptomatology or pathology.  Accordingly, the Board must
find the claim for entitlement to service connection for
epididymitis to be not well-grounded.  Caluza, 7 Vet.App. at
498, 506 (1995); Edenfield, 8 Vet.App. at 384, 388.

In finding the claim for entitlement to service connection
for epididymitis to be  not well grounded, the obligation of
the RO under 38 U.S.C.A. � 5103(a) and the holding in
Robinette v. Brown, 8 Vet.App. 69, 77-80 (1995) to advise the
veteran of the evidence needed to complete his application
when he has failed to present a well-grounded claim has been
considered.  The Board concludes that this obligation to the
veteran was fulfilled by the RO to the extent the veteran was
notified in the May 1996 supplemental statement of the case
that his claim for service connection for epididymitis was
being denied due to that lack of any evidence that the in-
service treatment for epididymitis resulted in any residual
disability.  Moreover, it has not been suggested that there
are objective medical reports that are available and should
be obtained which would show the required nexus between a
present disability due to epididymitis and pathology or
symptomatology incurred during service.

II.  Whether New and Material Evidence has been Presented to
Reopen a Claim for Entitlement to Service Connection for
Prostatitis.

Unappealed rating actions are final.  38 U.S.C.A. � 7105.  If
new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.

The United States Court of Veteran's Appeals has held that
the Board must perform a two-step analysis when a veteran
seeks to reopen a claim based on new evidence.  First, the
Board must determine whether the additional evidence is "new"
and "material."  Second, if the Board determines that new and
material evidence has been added to the record, the claim is
reopened and the Board must evaluate the merits of the
veteran's claim in light of all the evidence, both new and
old.  Manio v. Derwinski, 1 Vet.App. 140 (1991).  "New"
evidence means more than evidence which was not previously of
record.  To be "new,� the additional evidence must be more
than merely cumulative.  Colvin v. Derwinski, 1 Vet.App. 171
(1991).  To be "material," the additional evidence must be
probative of the issue at hand.  Also, to be "material,"
there must be a reasonable possibility that the new evidence,
when viewed in the context of all the evidence, both old and
new, would change the outcome of the previous decision.
Smith v. Derwinski, 1 Vet.App. 178 (1991).

Summarizing the relevant evidence and adjudicative history,
entitlement to service connection for prostatitis was
originally denied by the Board in a December 1984 decision.
April 1987 and March 1990 Board decisions found insufficient
evidence to reopen the veteran�s claims for service
connection for prostatitis.  In addition, an October 1991
rating decision found no new and material evidence to reopen
the claim, and the veteran was notified in November 1991 that
he had not submitted sufficient evidence to reopen this
claim.  A January 1992 rating decision confirmed the denial
of the veteran�s claim to the extent that it held that
additional evidence submitted after the October 1991 rating
decision did not establish a factual basis upon which to
grant the claim for entitlement to service connection for
prostatitis.  As a timely appeal was not filed, these were
the last final adjudicative actions addressing this issue on
any basis.

The evidence before the RO in November 1991/January 1992
included the service medical records, summarized in pertinent
part in the previous section.  The service medical records do
not reflect a diagnosis of prostatitis.  As indicated, the
service medical records reflected treatment for epididymitis
in June 1972, gram negative diplococci in August 1972 and
abdominal cramping in January 1973.  No further treatment for
genitourinary complaints during service was shown, and the
medical history and examination completed close to separation
from service did not reflect complaints of or findings of a
genitourinary disorder.

The post service evidence includes that aforementioned
November 1975 VA examination which showed no objective
evidence of a genitourinary disorder.  Also referenced
previously was treatment provided at a VA outpatient
treatment clinic in August 1976 for painful urination with
dark yellowish colored urine.  The diagnoses at that time did
not include prostatitis.  While the remaining post-service
clinical evidence of record at the time of the last final
rating actions did reflect some genitourinary complaints and
reported histories by the veteran of prostatitis (see e.g.,
July 1983 VA outpatient treatment record) and treatment for
other disabilities, particularly a psychiatric disability,
none of this clinical evidence contains any objective
findings consistent with a diagnosis of prostatitis.  This
evidence includes the aforementioned May 1991 VA outpatient
treatment record reflecting an examination finding of a non-
tender prostate.

The evidence before the RO at the time of the last final
adjudicative action addressing the issue of entitlement to
service connection for prostatitis also included argument
from the veteran in the form of written contentions and sworn
testimony at October 1983 and December 1986 hearings before
hearing officers essentially contending that he has
prostatitis that was etiologically related to in-service
genitourinary problems.

Additional evidence of record dated after the October
1991/January 1992 adjudicative action includes reports from
treatment for unrelated disabilities at private medical
facilities from 1988 to 1993.  These records also reflect VA
treatment for disabilities other than those involving the
genitourinary system through March 1996 and the
aforementioned service medical records reflecting treatment
for epididymitis in June 1972.  Also submitted was a
photocopy of an article describing the nature of
genitourinary emergencies.  The additional evidence also
included written contentions and sworn testimony presented by
the veteran at a hearing at the RO before a hearing officer
in March 1996 and a hearing at the RO before the signing
Board member in June 1996 alleging current disability due to
prostatitis as a result of in-service genitourinary
pathology.

Analyzing the additional evidence described in the preceding
paragraph in light of all the other evidence of record, the
Board concludes none of the additional evidence is �material�
because there is no �reasonable possibility� that such
evidence could result in an allowance of the veteran�s claim:
None of the additional evidence contains any competent
objective evidence showing a current disability associated
with prostatitis that could be attributed to in-service
genitourinary symptomatology or pathology.  Moreover, the
contentions by the veteran linking a present disability to
the in-service genitourinary disability are of insufficient
evidentiary value to be considered "material" evidence, as it
has not been shown that the veteran  has any medical
knowledge beyond that of laypersons.  Moray v. Brown, 5
Vet.App. 211 (1993).  As for the sworn testimony from the
1996 hearings, that testimony essentially reiterates
information already on file, as the veteran indicated again
that he believed he has prostatitis as a result of an in-
service genitourinary disorder.  To the extent hearing
testimony restates contentions already on file, it does not
constitute new and material evidence.  See Reid v. Derwinski,
2 Vet. App. 312 (1992).

As the Board concludes that the veteran has failed to present
sufficient �new� and �material� evidence to reopen the claim
for service connection for prostatitis, no further
adjudication of the claim is warranted.  See, Kehoskie v,
Derwinski, 2 Vet.App. 31 (1991).

III.  Whether New and Material Evidence has been Presented to
Reopen a Claim for Entitlement to Service Connection for
Hepatitis

Except as provided by 38 U.S.C.A. � 5108, when a claim is
disallowed by the Board, the claim may not thereafter be
reopened and allowed and a claim based upon the same factual
basis may not be considered.  38 U.S.C.A. � 7104(c) (West
1991).

Entitlement to service connection for hepatitis was
originally denied by the Board in March 1990, and this was
the last final adjudicative action addressing this issue on
any basis.  The evidence before the Board at that time
included the service medical records, which included the
Report of Medical History completed in August 1974 in which
the veteran reported that he had never had jaundice or
hepatitis.  Later that month, the veteran reported suffering
from nausea and vomiting for one week.  He did not report
having diarrhea and no scleral icterus was present.
Urinalysis to rule out hepatitis was slightly positive for
bile.  The impression was probable hepatitis.

After separation from service, the veteran was afforded a VA
examination in November 1975, at which time a urinalysis was
negative for bile.  There were no complaints of or objective
findings consistent with hepatitis.  In August 1976, the
veteran reported initially a �past history� of hepatitis, but
he later stated that he was �believed� to have had hepatitis
in service but that testing for this disease was negative.
The veteran�s complaints at that time included abdominal
discomfort, nausea and fatigue.  Upon physical examination,
no scleral icterus was noted and serum bilirubin and
urinalysis were negative.  No other relevant history or
physical findings are of record until a report from VA
treatment in September 1988 at which time the veteran
reported that he was hospitalized at the De Paul Hospital
earlier in that month for treatment of hepatitis.  The
physical examination at that time showed no overt severe
jaundice.  In October 1988, the veteran again referred to
past hospitalization for hepatitis, but the physical
examination at that time showed no obvious jaundice.  The
impression was �history of positive hepatitis test, cause
unknown,� and the veteran filed a claim for entitlement to
service connection for hepatitis in that month, contending
essentially that he was treated for hepatitis in service and
that he had hepatitis at that time that was etiologically
related to in-service pathology.

In denying the veteran�s claim for service connection for
residuals of hepatitis in March 1990, the Board considered
the evidence summarized above and concluded that the post-
service objective evidence did not show �chronic residuals of
hepatitis due to service.�

Evidence submitted after the March 1990 Board decision
includes reports from private laboratory dated in September
1988 and September 1992 reflecting positive laboratory
testing for the hepatitis �B� antibody.  Clinical records
from the DePaul Hospital dated in September 1988 showed no
scleral icterus or other objective findings consistent with
hepatitis.  The additional evidence also incudes clinical
records from this facility dated in 1988 and 1989 reflecting
treatment for a psychiatric disorder without any evidence of
hepatitis.  Also of record is a report from negative
laboratory testing conducted at a private medical facility in
March 1993 and VA treatment records dated in 1995 and 1996
that did not reflect treatment for hepatitis.  Transcripts of
record from the previously referenced hearings conducted at
the RO before a hearing officer and the signing Board Member
in 1996, show the veteran�s essential contention to be that
he was treated in a hepatitis ward during service and that he
has a present disability associated with the claimed in-
service hepatitis.

Turning to an analysis of the additional evidence described
above in light of all the other evidence of record, the Board
concludes that none of it is �material� because there is
again no �reasonable possibility� that such evidence could
result in an allowance of the veteran�s claim.  None of the
additional evidence contains any competent objective evidence
showing a current disability associated with hepatitis that
could be attributed to in-service symptomatology or
pathology. While the veteran has claimed that he was treated
for hepatitis during service and after service, there is
insufficient objective clinical evidence to confirm this
contention.  Most significantly, there is no objective
evidence among the additional documents submitted
etiologically linking a current disability associated with
hepatitis to in-service pathology or symptomatology.
Moreover, as noted previously, the unsupported contentions by
the veteran linking a present disability to the claimed in-
service hepatitis are of insufficient evidentiary value to be
considered "material" evidence, as it has not been shown that
the veteran has any medical knowledge beyond that of
laypersons.  Moray, 5 Vet.App. at 211 (1993).  As for the
sworn testimony from the 1996 hearings, that testimony
essentially reiterates information already on file to the
extent that the veteran contended again that he was treated
for hepatitis during service and that chronic residuals of
this disease have resulted in present disability.
Accordingly, the Board finds that testimony to not be new and
material evidence.  See Reid, 2 Vet.App. at 312 (1992).

As the Board concludes that the veteran has failed to present
sufficient �new� and �material� evidence to reopen the claim
for service connection for hepatitis, no further adjudication
of the claim is warranted.  See Kehoskie, 2 Vet.App. at 31
(1991).

IV. Whether New and Material Evidence has been Presented to
Reopen a Claim for Entitlement to Service Connection for a
Psychiatric Disorder.

Service connection may be granted for a psychosis if the
disorder is manifested to a degree of 10 percent or more
within one year of separation from service.  38 U.S.C.A.
�� 1101, 1112, 1113 (West 1991); 38 C.F.R. �� 3.307, 3.309
(1996).

Personality disorders are not �diseases� for which service
connection can be granted, and as a �matter of law� are not
compensable disabilities.  38 C.F.R. � 3.303(c); Beno v.
Principi, 3 Vet.App. 439, 441 (1992).

Entitlement to service connection for a psychiatric disorder
was originally denied by the Board in October 1981.  Board
decisions dated in December 1984 and May 1986 found
insufficient evidence to reopen or allow this claim.  The
last final adjudicative action addressing the issue of
entitlement to service connection for a psychiatric disorder
was an October 1991 Board decision which found no new and
material evidence to reopen this claim.

Evidence of record before the Board in October 1991 included
the service medical records which showed treatment in the
mental health clinic in March 1974 for �family� problems.
The diagnosis was situational stress.  An undated mental
status evaluation conducted during service noted that the
veteran exhibited bizarre behavior, a dull alertness level
and a depressed mood.  The thought content and thinking
process were noted to be normal, and it was felt that there
was no significant mental illness.  The August 1975 Report of
Medical History compiled upon discharge indicated the veteran
was depressed over his �army situation.�  It was also
indicted by the veteran on this report that he had dizziness
and/or fainting spells and that he suffered from depression
or excessive worry.  The psychiatric examination conducted at
that time was normal.

After service, the veteran reported for VA outpatient
treatment in August 1975 with complaints of dizzy spells and
headaches.  The physical examination was negative at that
time, and the examiner felt the complaints were psychogenic
in origin.  One month later, the veteran complained about
suffering from restlessness and stated that he did not sleep
well.  No auditory hallucinations were reported and the
examiner found no evidence of an acute psychosis.  In April
1976, the veteran was treated in a VA psychiatric clinic and
the diagnosis was latent schizophrenia.  The same diagnosis
was reached after a May 1978 VA psychiatric examination.
After treatment was rendered in a VA psychiatric clinic in
October 1978, the diagnosis was a schizoid personality
disorder.

A statement of record dated in October 1978 shows the
veteran�s sister indicating that the veteran had no
psychiatric problems prior to service and that he came home
from the service with depression, �bad nerves,� and a quick
temper that made it impossible for him to work.  The veteran
testified at a July 1981 hearing that he felt that he had a
psychiatric disorder that was the result of psychiatric
problems experienced during service.  He testified that the
psychiatric disorder resulted in depression, problems with
sleeping, and sexual problems, among other symptoms.  The
veteran also indicated that he did not seek treatment for a
psychiatric disorder until approximately one year after
service.

The Board denied the veteran�s claim for service connection
for a psychiatric disorder, as mentioned previously, in
October 1981.  In analyzing the evidence summarized above,
the Board found insufficient evidence to find that the in-
service �nervous� symptoms were reflective of chronic
psychopathology such that it could be concluded that the
veteran incurred a psychiatric disability during service.  It
was also the conclusion of the Board at that time that the
findings within one year of separation form service were
representative of a personality disorder, and that service
connection for a psychosis thus could not be granted on a
�presumptive basis.�

A review of the remaining evidence of record at the time of
the October 1991 Board decision reflects numerous instances
of VA inpatient and outpatient treatment through 1990 for a
variously diagnosed psychiatric disorder.  None of these
reports included any objective evidence linking a psychiatric
disorder to in-service symptomatology or reflected the
presence of an acquired psychotic disorder within one year of
separation from service.  The veteran also presented
testimony at an October 1983 hearing in which he stated that
his first post-service treatment for a psychiatric disorder
was at a VA medical facility in 1974 by a person �just out of
school� who �refused to talk.�  Also of record are reports
from the Social Security Administration indicating that the
veteran was found to be disabled under this agency�s
regulatory criteria from 1976 due to a schizophrenic disorder
and a personality disorder.  Additional evidence in the form
of written argument and sworn testimony by the veteran, his
brother, sister, and others asserting that the veteran had no
psychiatric problems prior to service but had significant
psychiatric impairment thereafter was also before the Board
in October 1991.

The additional evidence of record dated after the October
1991 Board decision includes VA and private clinical records
dated through March 1996.  While some of these records
describe treatment for a psychiatric disorder, diagnosed in
1989 as recurrent major depression with possible intermittent
psychotic features and avoidant personality disorder, none of
these records contain any objective evidence linking a
present psychiatric disorder to in-service pathology or
symptomatology or indicate the presence of a psychosis within
one year of service.  The additional evidence also contains
written contentions and sworn testimony from the veteran
presented at the previously mentioned 1996 hearings that in
essence presents the argument that his current psychiatric
disability is etiologically linked to service.

The Board has reviewed the additional evidence summarized
above that has been submitted since the October 1991 Board
decision and concludes that none of it is �material� in that,
as previously discussed, there is no �reasonable possibility�
that such evidence could result in an allowance of the
veteran�s claim.  None of the additional evidence contains
any competent objective evidence showing an etiologic
relationship between a present psychiatric disability and in-
service symptomatology or pathology.  Moreover, this evidence
does not tend to establish the presence of an acquired
psychotic disorder within one year of separation from
service.  For reasons stated previously, the Board also finds
the unsupported contentions and testimony by the veteran
linking a present psychiatric disability to in-service
symptoms to not be "material" evidence.  Moray, 5 Vet.App. at
211 (1993); See Reid, 2 Vet. App. at 312 (1992).

As the Board concludes that the veteran has failed to present
sufficient �new� and �material� evidence to reopen the claim
for service connection for a psychiatric disorder, no further
adjudication of the claim is warranted.  See Kehoskie, 2
Vet.App. at 31 (1991).

ORDER

The claim for entitlement to service connection for
epididymitis is not well-grounded and is therefore denied.

�New� and �material� evidence having not been presented, the
claims for entitlement to service connection for prostatitis,
hepatitis, and a psychiatric disorder are not reopened, and
the benefits sought in connection with these claims are
denied.

	MICHAEL D. LYON
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


series: legacy

judge_norm: NANCY I PHILLIPS

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text: The appellant’s claim for an effective date prior to October 1, 1992, for VA compensation for a dependent spouse, is denied.

text:
Citation NR: 9711000
Decision Date: 03/28/97		Archive Date: 04/04/97
DOCKET NO.  95-11 687	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida

THE ISSUE

Entitlement to an effective date prior to October 1, 1992,
for VA compensation for a dependent spouse.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

M. Salari, Associate Counsel

INTRODUCTION

The appellant served on active duty from September 1963 to
October 1969 and from March 1970 to October 1978.  This
appeal comes before the Board of Veterans� Appeals (Board)
from a November 1992 decision by the Hartford, Connecticut,
Regional Office (RO) of the Department of Veterans Affairs
(VA), which granted VA benefits for the appellant�s dependent
spouse (R.S.S.) effective from October 1, 1992.  The claim
was subsequently transferred to the St. Petersburg, Florida,
RO.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends, in essence, that he notified VA of
his marriage to his second spouse (R.S.S.) within 6 months of
the marriage, and that VA was at fault in its failure to
process the information he provided.  He asserts that he
should not be penalized for VA�s mistake.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against his claim for an effective date prior to
October 1, 1992 for VA compensation for a dependent spouse.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the appellant�s claim has been obtained by the
RO.

2.  The appellant did not notify VA of his marriage to his
second spouse, R.S.S., within one year of the marriage; he
notified VA of the marriage to R.S.S. in September 1992.

CONCLUSION OF LAW

The criteria for an effective date prior to October 1, 1992,
for VA compensation for a dependent spouse, have not been
met.  38 U.S.C.A. �� 5101, 5110(n) (West 1991 & Supp. 1996);
38 C.F.R. �� 3.1(p), 3.31, 3.155(a), 3.401(b) (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the appellant�s claim is well
grounded within the meaning of 38 U.S.C.A. � 5107(a) (West
1991); that is, he has presented a claim that is plausible.
All relevant facts have been properly developed, and the duty
to assist the appellant, mandated by 38 U.S.C.A. � 5107(a)
(West 1991), has been satisfied.

The appellant argues that he is entitled to an effective date
prior to October 1992, for entitlement to VA compensation for
a dependent spouse.  After careful consideration of the
appellant�s claim and the evidence of record, the Board
concludes that an effective date prior to October 1992,
cannot be awarded.

A review of the record indicates that in his original claim
for entitlement to VA compensation, dated in October 1979,
the appellant reported that he was married to a J.E.S.  In
September 1992, the appellant advised the RO that his
marriage to J.E.S. had terminated in November 1985.  Also in
September 1992, he notified the RO that he had remarried (a
R.S.S.) in May 1989.  The record shows no earlier written
communication from the appellant advising the RO of his
remarriage in 1989.

The relevant provisions of 38 C.F.R. � 3.401(b) provide that
the effective date of an award of any benefit or any increase
therein by reason of marriage shall be the date of the claim
or the date that dependency arose, whichever is later.  See
also 38 U.S.C.A. � 5110(n) (West 1991 & Supp. 1996).  The
date of the claim is the date of the marriage, if evidence of
the event is received within 1 year of the event; otherwise,
it is the date that notice is received of the dependent�s
existence, if evidence is received within 1 year of VA�s
request.  A claim is a formal or informal communication in
writing requesting a determination of entitlement or
evidencing a belief in entitlement to a benefit.  38 C.F.R.
�� 3.1(p), 3.155 (1996).

As previously mentioned, the record shows that no written
communication advising of the marriage to R.S.S. was received
from the appellant prior to September 1992.  Since this date
is not within one year of the date of marriage (which was in
May 1989), the earliest date that benefits can be awarded
would be the date of notification of the existence of the
dependent spouse (September 1992).  38 C.F.R. �� 3.401(b),
3.1(p) (1996).  Under the relevant provisions of 38 C.F.R.
� 3.31 (1996), payment of monetary benefits for an increased
award of compensation may not be made for any period prior to
the first day of the calendar month following the month in
which the award became effective.  Since the appellant�s
notice was received in September 1992, the RO appropriately
awarded monetary benefits beginning in October 1, 1992.

The Board notes the appellant�s contentions that he provided
information about his marriage to R.S.S. to the RO within 6
months from the date of marriage.  However, absent any
evidence indicating some type of administrative irregularity,
the Board must presume that all documents submitted by the
appellant to the RO have been associated with the claims
file.  A review of the claims file does not show any
administrative irregularities, and as such, the appellant�s
claim must be denied.

					(CONTINUED ON THE NEXT PAGE)

ORDER

The appellant�s claim for an effective date prior to October
1, 1992, for VA compensation for a dependent spouse, is
denied.

	NANCY I. PHILLIPS
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: WILLIAM J REDDY

condition: back

disposition: remanded

text:
Citation NR: 9714000
Decision Date: 04/25/97		Archive Date: 05/01/97
DOCKET NO.  93-15 953	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUES

1.  Entitlement to service connection for a back disorder.

2.  Entitlement to an increased evaluation for post-traumatic
stress disorder, currently rated 30 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Amy Padoll, Associate Counsel

INTRODUCTION

The veteran had active military service from April 1944 to
October 1945.

The Board of Veterans� Appeals (Board) notes that this case
was previously remanded in May 1995 for additional
development of the issues of entitlement to service
connection for a back disorder and for an increased
evaluation for psychoneurosis.  After completion of the
requested development, the regional office (RO) continued to
deny the veteran�s claim for service connection for a back
disorder.  However, with regards to the other issue on
appeal, after reviewing the medical evidence of record the RO
reclassified the veteran�s psychiatric disorder.  In a rating
decision dated in January 1996, the RO determined that the
veteran�s disorder was now diagnosed as post-traumatic stress
disorder (PTSD) and would be rated as such.  Thus, the
veteran�s disorder was still assigned a 30 percent rating;
however, it was now classified as PTSD and rated under
Diagnostic Code 9411.  Therefore, the Board will address the
issue of an increased rating as it is stated above.

The issue of entitlement to an increased evaluation for PTSD
will be handled in the remand section of the decision.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he began developing back problems
in service after lifting ammunition.  Moreover, he states
that he has continued to experience back symptoms since
service and has received treatment for his back condition
since service.  Furthermore, he states that he continues to
experience back problems which prevent him from participating
in many of his daily activities.  Therefore, the veteran
contends that service connection for a back disorder should
be granted.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for service connection for a
back disorder.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the claim for service connection for a back
disorder has been obtained by the RO, insofar as possible.

2.  The veteran�s back disorder demonstrated after service,
is unrelated to service.

CONCLUSION OF LAW

A back disorder was not incurred in or aggravated by active
service.  38 U.S.C.A. �� 1110, 5107 (West 1991 & Supp. 1995);
38 C.F.R. � 3.303 (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran�s claim for service connection for a back
disorder is well grounded within the meaning of 38 U.S.C.A.
� 5107 in that he has presented a claim which is plausible.
As it stands, the record is complete.  The case was
previously remanded by the Board in May 1995 in order to
afford the veteran an opportunity to submit any additional
evidence related to his claim for service connection.  The RO
sent a letter to the veteran in July 1995 informing him of
the evidence necessary to support his claim.  The veteran
responded in July 1995 with a written statement.  The RO
attempted to obtain any available outstanding medical records
which the veteran referred to in his statement.  However, no
further medical evidence was submitted by the veteran nor
received from any medical facilities.  Accordingly, no
further assistance to the veteran is required by the
Department of Veterans Affairs (VA) to comply with the duty
to assist him as mandated by 38 U.S.C.A. � 5107(a) (West
1991).

Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of a preexisting
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. � 1110 (West 1991 & Supp. 1995).  Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service.  38 C.F.R. � 3.303(d) (1996).

The veteran�s service medical records are negative for any
complaints or findings pertaining to a back disorder while in
service.  The records do not reveal any treatment related to
back problems during active service.  When hospitalized for
psychiatric observation immediately prior to separation from
service, it was specifically reported that all physical
examinations were normal.

The veteran underwent three VA examinations between February
1947 and April 1952.  At the time of those examinations the
veteran did not report any complaints associated with a back
disorder.  Moreover, the examiner did not report any findings
associated with a back disorder.

Outpatient treatment records dated in January 1988 showed
that the veteran was seen with complaints of low back pain
for a long time.  At that time, the examiner noted that the
veteran had stated that he currently had low back pain;
however, when asked to localize the pain the veteran stated
that he presently did not have any back pain.  The diagnosis
was intermittent low back pain.

Between May 1988 and August 1992, the veteran�s brother
submitted several statements in which he reported that the
veteran had had back pain and been under a doctor�s care
since service.  Moreover, the brother reported that the
veteran had trouble lifting heavy objects due to his back
pain.

In May 1992, the veteran was seen after he requested an
evaluation of his back condition.  At that time, the veteran
reported that he had sustained an injury to his back in
service and had continued to experience back pain since
service.  An examination revealed an essentially normal
examination except for some mild tenderness over L3 and L4.
X-rays demonstrated minimal degenerative changes.  The
diagnosis was intermittent mechanical low back pain.

Another X-ray performed in May 1992 noted a history of
chronic back pain of unknown etiology.  The impression was
diffuse osteopenia, mild scoliosis, no acute abnormality.

A hearing was held in August 1992, at which time the veteran
testified that he developed a back disorder in service.  He
further stated that he has continued to experience back pain
since service.  Moreover, he stated that his back pain has
interfered with both his ability to perform his job and his
daily activities.

The veteran was again seen on an outpatient basis in April
1993.  At that time he reported complaints of continued back
pain.  His condition was reported as stable.

The record reveals that the veteran currently has some back
disorder.  However, the preponderance of the evidence shows
that the veteran did not develop a back disorder until after
separation from service.  The service medical records show no
evidence of any complaints or findings in service related to
the back.  Moreover, there is no evidence in the service
medical records of any injury or treatment sought in relation
to a back disorder.

Furthermore, following his separation from service, the first
medical evidence of a back disorder is the VA outpatient
treatment records from January 1988.  Moreover, the record
shows that the veteran underwent several VA examinations
between 1947 and 1952; however, he did not report any
complaints of back trouble nor were any findings of a back
disorder noted.

The veteran contends that he developed a back disorder in
service and that he has continued to have a back disorder
since his separation from service in 1945.  The evidence
against the claim is the service medical records, which don�t
show that he had any back disorder, but do show that a
physical examination just before separation from service was
normal, and the reports of VA examinations from 1947 to 1952,
which also don�t show that he had a back disorder.  Also
against the claim is the fact that there is no clinical
documentation of a back disorder until 1988 and the fact that
that, although he has been in correspondence with and
examined by VA in relation to other claims since separation
from service (service connection for a psychiatric disorder
was first granted in November 1945), at the times of
examinations prior to 1988, he did not report or claim that
he had a back disorder.  The evidence in favor of the claim
is medical documentation of a back disorder beginning in
1988, and testimony and statements from the veteran and his
brother, more than 40 years after the veteran�s separation
from service, that the veteran�s back disorder began during
service and has continued since that time.

The Board notes that the veteran and his brother, as
laypersons, are not competent to testify or state that any
current disorder is related or was caused by any injury or
incident of service.  Such a conclusion requires specialized
medical knowledge.  Espiritu v. Derwinski, 2 Vet.App. 492
(1992).  They are competent, however, to testify or make
statements concerning the veteran�s symptoms that were
observable.  These statements are, however, of low probative
value in that they are vague and general, in the sense that
they essentially say that the veteran has had the reported
problems all the time during the entire more than 40 year
period in question, and also because they were made from
memory many years later, which raises the question of just
how continuous the reported symptoms were.  The Board finds
that the testimony and statements of the veteran and his
brother are outweighed by the service medical records which
show no back disorder and the examinations from 1947 to 1952
which show no back disorder during the time that the veteran
and his brother now say that he was having a back disorder.
The preponderance of the evidence shows that the veteran�s
back disorder was not manifest until many years after service
and is not otherwise related to service.  Therefore, the
veteran�s claim must be denied.

ORDER

Service connection for a back disorder is denied.

REMAND

After a review of the claims file, the Board is of the
opinion that additional development is necessary in order to
render a determination in the appeal for an increased
evaluation for PTSD.

The criteria for rating mental disorder found in 38 C.F.R.
� 4.132 was amended, effective November 7, 1996, after the
issuance of the last supplemental statement of the case.
Where a law or regulation changes after a claim has been
filed or reopened, but before the administrative judicial
process has been concluded, the version most favorable to an
appellant applies unless Congress provided otherwise or
permitted the Secretary to do otherwise and the Secretary
does so.  Marcoux v. Brown, 9 Vet.App. 289 (1996); Karnas v.
Derwinski, 1 Vet.App. 308 (1991).  Thus, the veteran�s
psychiatric disorder must be evaluated under both the old and
new criteria to determine which version is most favorable to
the veteran.  Moreover, the Court of Veterans Appeals has
held that if the Board�s initial consideration of a matter or
question not adjudicated by the RO might be prejudicial to
the appellant, the case must be remanded to the RO for
initial consideration.  Bernard v. Brown, 4 Vet.App. 384
(1995).

In the Board�s 1995 remand, it was pointed out that a claim
for a total disability evaluation on the basis of
unemployability had been raised and that it was inextricably
intertwined with the claim for an increased evaluation for
the veteran�s psychiatric disorder.  In a rating decision in
January 1996, the RO determined that the claim was not for
consideration because of the provisions of 38 C.F.R.
� 4.16(c).  However, as the veteran�s representative has
pointed out, � 4.16(c) was deleted from the regulations in
November 1996.  The veteran�s representative has requested
that the claim for a total disability evaluation based on
unemployability be considered again by the RO.

Therefore, the issue of an increased evaluation for PTSD is
REMANDED to the RO for the following actions:

1.  After the necessary information and
authorization have been obtained from the
veteran, copies of treatment records for
the veteran�s PTSD, VA or private,
inpatient or outpatient, since May 1995,
should be obtained by the RO and added to
the claims folder.

2.  After the above requested development
has been completed to the extent
possible, the veteran should be afforded
a comprehensive VA psychiatric
examination to determine the current
severity of his service-connected PTSD.
The examination should be conducted in
accordance with the Physician�s Guide for
Disability Evaluation Examinations.  All
indicated tests and studies should be
performed.  The examiner must assign a
Global Assessment of Functioning Score
consistent with the American Psychiatric
Association�s Diagnostic and Statistic
Manual of Mental Disorders and must
explain the meaning of the assigned score
in terms of social and industrial
adaptability.  In addition, the examiner
should offer an opinion as to how, and to
what extent, each symptom of the
veteran�s PTSD affects his initiative,
flexibility, efficiency and reliability,
and, in general, his social and
industrial adaptability.  The RO should
also provide the examiner with the
necessary information so that the
examiner can report findings concerning
the factors to be considered in
evaluating psychiatric disorders that
became effective in November 1996.  The
examiner should prepare a comprehensive
report, which addresses the
aforementioned, as well as the history of
the veteran�s disability, and the report
should be associated with the veteran�s
claims folder.  Copies of pertinent
treatment records and prior psychiatric
examination reports from the veteran�s
claims folder and a copy of this remand
must be made available to the examiner
for review prior to the examination and
the examiner should state in his report
that the medical records and prior
examination reports were reviewed.

3.  The RO should review the examination
report to ensure that it is in complete
compliance with this remand.  If not, the
report should be returned to the examiner
for corrective action.

4.  After completion of the requested
development to the extent possible, the
RO should again review the claim for an
increased rating for PTSD under the
criteria in effect prior to November 7,
1996, and the new criteria that became
effective November 7, 1996.  The RO
should also adjudicate the claim for a
total disability evaluation based on
individual unemployability.  If the claim
is denied, the veteran and his
representative should be informed of the
need for a notice of disagreement to have
the issue included in the veteran�s
appeal.

If the benefit sought on appeal continues to be denied, the
veteran and his representative should be furnished a
supplemental statement of the case, which does not contain
any issue for which a notice of disagreement has not been
filed, and given a reasonable opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, as warranted.  No action is
required of the veteran until he receives further notice.  By
this remand, the Board intimates no opinion as to the
ultimate outcome of this case.

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
Veterans Appeals 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. 1996) (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.

	WILLIAM J. REDDY
	Member, Board of Veterans' Appeals

38 U.S.C.A. � 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been assigned to an individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans�
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans� Judicial Review Act, Pub.
L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans� Appeals.  Appellate rights do not
attach to those issues addressed in the remand portion of the
Board�s decision, because a 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)
(1996).

- 2 -


judge_norm: WILLIAM R HARRYMAN

disposition: granted

text: Compensation under 38 U.S.C.A. § 1151 for residuals of a right ankle fracture is granted.

text:
Citation NR: 9715000
Decision Date: 04/30/97		Archive Date: 05/06/97
DOCKET NO.  95-17 485	)	DATE
	)
	)

On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Togus, Maine

THE ISSUE

Entitlement to compensation under the provisions of 38
U.S.C.A. � 1151 for residuals of a fracture of the right
ankle.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

K. E. Harrison

INTRODUCTION

The veteran had active military service from September 1944
to December 1944.  This matter comes before the Board of
Veterans� Appeals (Board) on appeal from a February 1995
rating decision by the RO which denied compensation under
38 U.S.C.A. � 1151 for residuals of a fracture of the right
ankle.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he has residuals of a right ankle
fracture due to an injury he sustained at a VA facility.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports the
award of compensation under 38 U.S.C.A. � 1151 due to
residuals of a fracture of the right ankle.

FINDING OF FACT

The veteran has residuals of a right ankle disability which
is the result of VA hospitalization.

CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C.A. � 1151 for
residuals of a right ankle injury have been met.  38 U.S.C.A.
�� 1151, 5107, (West 1991); 38 C.F.R. � 3.358 (1996).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Factual Background

A May 1992 VA hospital report of special incident involving a
beneficiary reveals that the veteran was a lodger who was
diagnosed as having large cell lymphoma of the scalp and
seizure disorder.  It was reported that the veteran fell in
the elevator twisting his right ankle at 10:00 p.m. on May
12, 1992.  He was noted to have some swelling and tenderness
over the lateral malleolus.  He was subsequently admitted to
the hospital.  The report reveals that the veteran had a
moderately severe fracture and that with open reduction he
should show satisfactory recovery.  It was reported that
posttraumatic arthritis was a complication of this type of
injury.

A May 1992 report from the safety manager/industrial
hygienist stated that the veteran was a lodger and that on
May 12, 1992 he was entering an elevator which had not
properly leveled.  The car was approximately two inches lower
than the floor of the elevator lobby.  He stated that the
veteran fell because of the difference in levels and broke
his ankle.

A hospital summary covering the period of May 12, 1992 to May
29, 1992 reveals that the veteran was followed for lymphoma
involving the scalp.  It was reported that he stayed in the
hospital as a lodger to have a CT scan of the brain on the
night of the injury and while at the hospital he fell and
twisted his ankle.  X-ray studies showed that the veteran had
a displaced fracture of the lateral malleolus associated with
the lateral subluxation of the talus of the right ankle.  He
was admitted to the orthopedic service on May 12, 1992 where
he subsequently underwent an open reduction and internal
fixation of the lateral malleolus and closed reduction of
subluxation of the talus.  A short cast was applied and he
gradually became ambulatory.  The cast was removed and was
replaced with a walking boot prior to his discharge.

During a July 1992 orthopedic outpatient treatment visit, the
veteran complained that his ankle still ached.  It was noted
that the veteran was making satisfactory progress.

In a February 1995 rating decision, the RO decided that the
veteran had not submitted a well-grounded claim for
compensation benefits under 38 U.S.C.A. � 1151 (West 1991).
Citing Sweitzer v. Brown, 5 Vet.App. 503 (1993), the RO
stated that under the provisions of 38 U.S.C.A. � 1151 any
injury or aggravation of an injury must have resulted from
the examination itself, and not from the process of reporting
for the examination.  The RO further stated that the veteran
had not met the eligibility criteria under 38 U.S.C.A. � 1151
as he was not being examined or treated at the time of the
accident and therefore had not submitted a well-grounded
claim.

I.  Analysis

In Gardner v. Derwinski, 1 Vet.App. 584 (1991), the Court
invalidated 38 C.F.R. � 3.358(c)(3), on the grounds that that
section of the regulation, which included an element of
fault, did not properly implement the statute.  The
provisions of 38 C.F.R. � 3.358, excluding section (c)(3),
remained valid.  See Brown v. Gardner, 115 S.Ct. 552 (1994).
In pertinent part, 38 U.S.C.A. � 1151 provides that where any
veteran shall have suffered an injury, or an aggravation of
an injury, as the result of hospitalization, medical or
surgical treatment, or as a result of having submitted to an
examination under any such law, and not the result of
veteran's own willful misconduct, and such injury or
aggravation results in additional disability or death,
compensation shall be awarded in the same manner as if such
disability or death were service-connected.  On March 16,
1995, amended regulations were published deleting the fault
or accidental requirements of 38 C.F.R. � 3.358 (c) (3), in
order to conform the controlling regulation to the Supreme
Court�s Decision.

38 C.F.R. � 3.358, the regulation implementing 38 U.S.C.A.
� 1151, provides, in pertinent part, that in determining if
additional disability exists, the beneficiary's physical
condition immediately prior to the disease or injury on which
the claim for compensation is based will be compared with the
subsequent physical condition resulting from the disease or
injury.  As applied to medical or surgical treatment, the
physical condition prior to the disease or injury will be the
condition which the specific medical or surgical treatment
was designed to relieve.  As applied to examinations, the
physical condition prior to the disease or injury will be the
condition at time of beginning the physical examination as a
result of which the disease or injury was sustained.
Compensation will not be payable for the continuance or
natural progress of disease or injuries for which the
hospitalization, etc., was authorized.  In determining
whether such additional disability resulted from a disease or
injury or an aggravation of an existing disease or injury
suffered as a result of hospitalization, medical, or surgical
treatment, it will be necessary to show that the additional
disability is actually the result of such disease or injury
or an aggravation of an existing disease or injury and not
merely coincidental therewith.  The mere fact that
aggravation occurred will not suffice to make the additional
disability compensable in the absence of proof that it
resulted from the disease or injury or an aggravation of an
existing disease or injury suffered as the result of
training, hospitalization, medical or surgical treatment or
examination.  38 C.F.R. � 3.358 (b), (c).

In the instant case, a review of the evidence reveals that
the veteran fractured his right ankle while being a lodger at
a VA hospital.  He was scheduled to undergo several CT scans.
As the veteran fractured his right ankle at the VA hospital,
there is no question as to whether he has additional
disability.  The determinative issue in the instant case is
whether the veteran�s residuals of a fracture to the right
ankle is the result of VA hospitalization, or as a result of
having submitted to an examination.

In Sweitzer v. Brown, the Court of Veteran�s Appeals (Court)
held that to be compensable under 38 U.S.C.A. � 1151 any
injury or aggravation of an injury must have resulted from
examination itself and not from process of reporting for
examination.  It was on this basis that the RO denied the
veteran�s claim.

In a precedent opinion date January 29,1997, VA�s General
Counsel concluded that:

Compensation under 38 U.S.C.A. � 1151 for
injuries suffered �as the result of . . .
hospitalization� is not limited to
injuries resulting from the provision of
hospital care and treatment, but may
encompass injuries  resulting from risk
created by any circumstances or incidents
of hospitalization... An injury caused by
a fall may be considered a result of
hospitalization where the conditions or
incidents or hospitalization caused or
contributed to the fall or the severity
of the injury.  A fall due solely to the
patient�s inadvertence, want of care, or
preexisting disability generally does not
result from hospitalization. . . In
individual cases, the question as to
whether an injury resulted from
hospitalization is essentially an issue
of fact to be determined by the fact-
finder upon consideration of all
pertinent circumstances.

VAOPGCPREC 7-97 (O.P.G.PREC. 7-97).  The Board is bound be
the VA General Counsel�s holding.

The record demonstrates that on May 12, 1992 at 10:00 p.m.
the veteran fractured his right ankle.  At the time of the
incident he was categorized as a lodger and was scheduled for
several CT scans.  The Board finds that his lodger status
more closely resembles hospitalization than submitting to an
examination.  The Random House College Dictionary 640
(rev.ed. 1980) defines hospitalize as to place in a hospital
for medical or surgical treatment.  Hospitalization is
defined as the state of being hospitalized.  Submitting to an
examination does not usually involving an over night stay in
a hospital or medical facility.  Thus, the Board finds that
for the purpose of adjudicating the veteran�s claim, he was
hospitalized at a VA facility.

Since the Board finds that the veteran�s circumstances
resembles hospitalization as opposed to submitting to an
examination, the Sweitzer holding is not for application in
the instant case.

The record shows that the veteran was injured at a VA
hospital due to walking into an elevator which had not
leveled properly.  The elevator car was approximately 2
inches lower than the floor of the elevator lobby causing the
veteran to fall and fracture his ankle.  VA Precedent Opinion
7-97 provides that compensation under 38 U.S.C.A. � 1151 for
injuries suffered �as the result of . . . hospitalization� is
not limited to injuries resulting from the provision of
hospital care and treatment but may encompass injuries
resulting from risk created by any circumstances or incidents
of hospitalization.  In the instant case the veteran�s fall
and fracture of the right ankle has been documented as due to
the hospital�s elevator not being leveled.  Under these
circumstances and taking into consideration the VA General
Counsel�s opinion, the Board finds that the evidence supports
the award of compensation under the provisions of 38 U.S.C.A.
� 1151 for residuals of a fracture of the right ankle.

ORDER

Compensation under 38 U.S.C.A. � 1151 for residuals of a
right ankle fracture is granted.

	WILLIAM R. HARRYMAN
	Acting Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: U R POWELL

text:
Citation NR: 9716000
Decision Date: 05/08/97		Archive Date: 05/22/97
DOCKET NO.  95-39 223	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri

THE ISSUES

1.  Entitlement to an increased rating for spondylolisthesis
of the lumbosacral spine, currently evaluated as 10 percent
disabling.

2.  Entitlement to an increased rating for recurrent
dislocation of the left shoulder, currently evaluated as 20
percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Milo H. Hawley, Counsel

INTRODUCTION

The veteran had active service from July 1973 to April 1977.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1995 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, which continued a 10 percent evaluation
for the veteran's spondylolisthesis of the lumbosacral spine
and granted a 10 percent evaluation for recurrent dislocation
of the left shoulder from April 6, 1995.  In December 1995 a
hearing officer granted a 20 percent evaluation for recurrent
dislocation of the left shoulder from April 6, 1995.

When the veteran filed his notice of disagreement in
September 1995 he indicated that he believed there was clear
and unmistakable error in a rating of April 1977 which
awarded a no percent evaluation for his left shoulder
disability.  This is an apparent reference to a November 1978
rating decision which granted service connection for
recurrent dislocation of the left shoulder and assigned a
noncompensable evaluation from April 7, 1977.  The issue of
whether there was clear and unmistakable error in the
November 1978 rating decision in assigning a noncompensable
evaluation for recurrent dislocation of the left shoulder is
referred to the RO for its consideration.

REMAND

During the veteran's personal hearing in November 1995,
before a hearing officer at the RO, the veteran testified
that he was able to bend over once at the time of the July
1995 VA examination, but if he had been requested to do so
again he would not have been able to.  He testified that he
had pain on bending and at all times in his back.  He also
testified with respect to pain, discomfort, and recurrent
dislocation of the left shoulder.

In the case of DeLuca v. Brown, 8 Vet.App. 202 (1995), the
United States Court of Veterans Appeals (Court) held that in
evaluating a service-connected left shoulder disability, the
Board erred in not adequately considering functional loss due
to pain under 38 C.F.R. � 4.40 and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. � 4.45.  The Court held that
Diagnostic Code 5201 does not subsume 38 C.F.R. �� 4.40 and
4.45, and that the rule against pyramiding set forth in
38 C.F.R. � 4.14 does not forbid consideration of a higher
rating based on a greater limitation of motion due to pain on
use, including use during flareups.  The Court remanded the
case to the Board to obtain a medical evaluation that
addressed whether pain significantly limits functional
ability during flareups, or when the arm is used repeatedly
over a period of time.  The Court also held that the examiner
should be asked to determine whether the left shoulder joint
exhibited weakened movement, excess fatigability, or
incoordination.  If feasible, these determinations were to be
expressed in terms of additional range of motion loss due to
any weakened movement, excess fatigability, or
incoordination.

In light of the above, the Board believes that additional
development is required prior to further appellate review.
Accordingly, the case is REMANDED to the RO for the
following:

1.  The RO should contact the veteran and
request that he provide the names,
addresses and approximate dates of
treatment for all VA and non-VA health
care providers who have treated him for
recurrent dislocation of the left
shoulder and spondylolisthesis of the
lumbosacral spine in recent years.  With
any necessary authorization from the
veteran, the RO should attempt to obtain
copies of pertinent treatment records
identified by the veteran which are not
currently of record.

2.  Then, the RO should arrange for a VA
orthopedic examination by a board-
certified specialist, if available, to
determine the nature and extent of the
veteran's recurrent dislocation of the
left shoulder and spondylolisthesis of
the lumbosacral area.  All indicated
studies should be performed and all
findings should be reported in detail.
The veteran's claims file must be made
available to the examiner prior to the
examination.  The examiner shoulder
describe in degrees of excursion any
limitation of the left shoulder and
lumbosacral area that is found to be
present, and due to the service-connected
recurrent dislocation of the left
shoulder and spondylolisthesis of the
lumbosacral area.  The examiner is also
requested to:  (1) Express an opinion as
to whether pain could significantly limit
the functional ability of the left
shoulder or lumbosacral area during
flareups, or when the left shoulder or
lumbosacral area are used repeatedly over
a period of time, and express these
determinations, if feasible, in terms of
the additional loss of range of motion
due to pain on use or during flareups;
(2) determine whether, as a result of
recurrent dislocation of the left
shoulder or spondylolisthesis of the
lumbosacral area, the left shoulder joint
or lumbosacral area exhibit weakened
movement, excess fatigability, or
incoordination, and express these
determinations, if feasible, in terms of
the additional loss of range of motion
due to any weakened movement, excess
fatigability, or incoordination.  A
complete rationale for any opinion
offered should be provided.

3.  Then, in light of the additional
evidence obtained pursuant to the
requested development, the RO should
readjudicate the issues on appeal, taking
into account the Court's decision in
DeLuca, supra, where applicable.

If any benefit sought on appeal is not granted to the
veteran's satisfaction or if a timely notice of disagreement
is received with respect to any other matter, both the
veteran and his representative should be provided a
supplemental statement of the case on all issues in appellate
status and be afforded the appropriate time to respond.

Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order.  In
taking this action, the Board implies no conclusion, either
legal or factual, as to the ultimate outcome warranted.  No
action is required of the veteran until he is otherwise
notified.

	U. R. POWELL
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 1996), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Veterans Appeals.  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) (1996).
- 2 -


judge_norm: J JOHNSTON

text:
Citation NR: 9719000
Decision Date: 05/30/97		Archive Date: 06/04/97
DOCKET NO.  94-32 767	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho

THE ISSUE

Entitlement to recognition as the veteran's surviving spouse
for purposes of payment of Department of Veterans Affairs
(VA) death pension benefits.

ATTORNEY FOR THE BOARD

Jeanne Schlegel, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1939 to
September 1945.  He died in December 1968.  The appellant is
the veteran�s former spouse.

This matter comes before the Board of Veterans' Appeals
(Board) from a November 1993 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in which it was
determined that the appellant did not meet the basic
eligibility requirements for death pension benefits, since
she was not considered the veteran's surviving spouse.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that she should be entitled to death
pension benefits as the surviving spouse of the veteran.  She
maintains that she and the veteran lived as husband and wife
for 24 years, and that following divorce, neither remarried.
She further asserts that she took care of him prior to his
death and paid for his burial.  She also argues that she was
recognized as his widow for Social Security purposes.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant's claim for
entitlement to recognition as surviving spouse of the veteran
for purposes of VA death benefits is without legal merit.

FINDINGS OF FACT

1.  The veteran and appellant were married in May 1941.

2.  The veteran and appellant were divorced in May 1965.

3.  The veteran died in December 1968, approximately 3 1/2
years after the veteran and appellant were divorced.

4.  The appellant has not established that she has basic
eligibility for death pension benefits by virtue of status as
a surviving spouse, and accordingly she has not achieved
claimant status.

CONCLUSION OF LAW

The veteran and the appellant were not married at the time of
the veteran's death, and the appellant is not entitled to
recognition as surviving spouse of the veteran for purposes
of VA death benefits.  38 U.S.C.A. � 101(3) (West 1991); 38
C.F.R. �� 3.1(j), 3.50(a),(c) (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that this issue presented in this
case is a matter in which the law, as opposed to the
evidence, is dispositive.  The United States Court of
Veterans Appeals (Court) has observed that the use of the
statutory term "well grounded" should be confined to matters
in which the evidence is dispositive.  Therefore, in cases
such as this, where the law and not the evidence is
dispositive, the claim should be denied or the appeal to the
Board terminated because of the absence of legal merit or the
lack of entitlement under the law (Cf. FED R.
CIV. P. 12(b)(6) ("failure to state a claim upon which relief
can be granted"), as opposed to dismissing the case for
failure to present a well-grounded claim.  Sabonis v. Brown,
6 Vet.App. 426, 430 (1994).

Under the applicable criteria, improved death pension is a
benefit payable to a veteran's surviving spouse or child
because of the veteran's nonservice-connected death.  38
U.S.C.A. � 1541(a); 38 C.F.R. � 3.3(b)(4).  Dependency and
indemnity compensation (DIC) is a payment made by the VA to a
surviving spouse, child or parent because of a service-
connected death occurring after December 31, 1956.
38 U.S.C.A. � 101(14); 38 C.F.R. � 3.5(a)(1).  As the cause
of the veteran�s death was not service-connected, the
benefits at issue in this case are improved death pension
benefits.

The term "surviving spouse" means a person of the opposite
sex who was the spouse of a veteran at the time of the
veteran's death (and meets the requirements of 38 C.F.R. �
3.1(j)), and who lived with the veteran continuously from the
date of marriage to the date of the veteran's death (except
where there was a separation which was due to the misconduct
of, or procured by, the veteran without the fault of the
spouse) and who has not remarried.  38 U.S.C.A. � 101(3); 38
C.F.R. � 3.50(c).

"Marriage" means a marriage valid under the law of the place
where the parties resided at the time of marriage, or the law
of the place where the parties resided when the right to
benefits accrued.  38 U.S.C.A. � 103(c); 38 C.F.R. � 3.1(j).
The term "spouse" means a person of the opposite sex who is a
wife or husband.  The term "wife" means a person whose
marriage to the veteran meets the requirements of 38 C.F.R. �
3.1(j) (1996) and 38 C.F.R. � 3.50(a)(c) (1996).

The record reflects that the veteran and the appellant were
married in May 1941.  They were divorced by an Idaho District
Court decree issued in May 1965.  The veteran died on
December 7, 1968.  The death certificate reflected that the
cause of death was exposure to weather due to intoxication
and confusion.  No claim for service connection for the cause
of the veteran�s death has been received.

The appellant filed an application for dependency and
indemnity compensation or death pension by a surviving spouse
or child (including accrued benefits and death compensation,
where applicable) in September 1993.  Pursuant to
administrative decision dated in November 1993, the RO denied
the appellant entitlement to death pension benefits because
she was not considered the veteran�s surviving spouse.

The appellant submitted additional evidence in support of her
claim, including three lay statements and correspondence from
the Social Security Administration.  The first lay statement,
received in May 1994 from R.G., attested that she and the
appellant, the veteran and their family were neighbors from
1953-1965.  A second lay statement from W.R., apparently also
a neighbor, attested that the veteran, appellant, and their
children lived together for about 12 years, until 1965.  A
third lay statement submitted in May 1994 from E.R., attested
to essentially the same information.  Also in support of her
claim, correspondence from the Social Security Administration
was submitted, reflecting that the appellant had received
widow�s benefits on the veteran�s Social Security record from
December 1981 until December 1984.

Analysis

The appellant has not contended or presented any evidence
that she and the veteran were married at the time of his
death.  The evidence reveals that they had been divorced for
approximately 3 1/2 years at the time of the veteran's death.
Additionally, the appellant�s September 1993 claim for death
pension benefits indicated that she did not continuously live
with the veteran from the date of marriage until the date of
his death.

For entitlement to VA death benefits as a veteran�s
"surviving spouse," a claimant must have (1) been the
veteran's spouse at the time of his death and (2) have lived
continuously with the veteran from the date of marriage to
the date of the veteran's death (except where there was a
separation due to the misconduct of, or procured by, the
veteran without the fault of the spouse).  38 U.S.C.A. �
101(3).

The appellant was not the veteran�s spouse at the time of his
death.  She divorced the veteran and was not his spouse for
approximately 3 1/2 years prior to his death. The evidence
also shows that she did not continuously reside with him from
the date of marriage to the date of the veteran's death.

The fact that she received Social Security benefits and was
afforded widow status from 1981-1984 is also immaterial as
Social Security regulations are not used in the determination
of widow status for VA purposes.  VA regulations are
controlling.   This was explained to the appellant in
correspondence from the RO dated in October 1994.  The record
clearly reflects and the evidence is uncontradicted that the
appellant was not the spouse of the veteran when he died.
Therefore, she does not meet the regulatory definition of a
surviving spouse for VA purposes as provided under 38 C.F.R.
� 3.50, and is not eligible for improved death pension
benefits.  The Board is not empowered to ignore regulations
which have been adopted by the VA.  38 U.S.C.A. � 7104(c);
Payne v. Derwinski, 1 Vet.App. 85, 87 (1990).

In November 1993, the RO notified the appellant that she did
not meet the basic eligibility requirements for death pension
benefits, since she was not the veteran�s surviving spouse.
A veteran or spouse who fails to submit appropriate evidence
never attains the status of claimant.  Aguilar v. Derwinski,
2 Vet.App. 21, 23 (1991).  Although VA has an obligation to
assist a claimant in developing the facts pertinent to a
well-grounded claim, to give a claimant the benefit of the
doubt, and to render a decision which grants every benefit
which can be supported in law while protecting the interests
of the government, this is not true for those who are not
entitled to be called "claimants."  38 C.F.R. � 3.103(a)
(1996); Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991).  In
this case, there is no obligation or duty to assist the
appellant in developing the facts pertinent to the claim
because she has not submitted evidence which shows or
establishes that she has basic eligibility for the benefits
sought by virtue of status as the surviving spouse of the
veteran.  Essentially, she has not attained claimant status.
Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991).
The United States Court of Veterans Appeals has held that in
a case where the law is dispositive of the claim, the claim
should be denied or the appeal to the Board terminated
because of the absence of legal merit or the lack of
entitlement under the law.  Sabonis v. Brown, 6 Vet.App. 426,
430 (1994).

ORDER

Entitlement to recognition as the surviving spouse of the
veteran for the purpose of establishing entitlement to VA
death benefits is denied.

	J. JOHNSTON
	Acting Member, Board of Veterans' Appeals

38 U.S.C.A. �  7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been assigned to an individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: GEORGE R SENYK

text: 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 Veterans Appeals 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. 1997) (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

text:
Citation NR: 9721000
Decision Date: 06/16/97		Archive Date: 06/30/97
DOCKET NO.  95-28 432	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey

THE ISSUES

1.  Entitlement to benefits under 38 U.S.C. � 1151 for
residuals of a nasal repair based on Department of Veterans
Affairs surgery in 1991.

2.  Entitlement to an effective date prior to November 3,
1994, for non service-connected pension benefits.

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Michelle S. Miyake, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1954 to July
1957.

REMAND

The veteran has requested the opportunity to appear at a
hearing before a Traveling Member of the Board, sitting at
the RO.  Accordingly, this case is REMANDED to the RO for the
following:

1.  The veteran should be scheduled for a
hearing at the RO before a Traveling
Member of the Board.

2.  Upon completion of the requested
development, and according to established
appellate procedures, the case should be
returned to the Board for further
consideration, if otherwise in order.

No action is required of the veteran until he receives
further notice.

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
Veterans Appeals 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. 1997) (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.

	GEORGE R. SENYK
	Member, Board of Veterans' Appeals

38 U.S.C.A. � 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been assigned to an individual member of the Board.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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)
(1996).
- 2 -