judge_norm: S S TOTH

condition: psychiatric

text:
Citation Nr: 0723000
Decision Date: 07/27/07    Archive Date: 08/06/07

DOCKET NO.  04-09 107	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for a prostate
disorder, to include as secondary to herbicide exposure.

2.  Entitlement to service connection for kidney/renal
disease, to include as secondary to herbicide exposure.

3.  Entitlement to service connection for multiple cysts on
the kidneys, to include as secondary to herbicide exposure.

4.  Entitlement to service connection for peripheral
neuropathy, to include as secondary to herbicide exposure.

5.  Entitlement to service connection for bipolar disorder,
to include as secondary to herbicide exposure.

6.  Entitlement to service connection for osteoarthritis, to
include as secondary to herbicide exposure.

7.  Entitlement to service connection for hypertension, to
include as secondary to herbicide exposure.

8.  Entitlement to service connection for heart disease, to
include as secondary to herbicide exposure.

9.  Entitlement to service connection for gout, to include as
secondary to herbicide exposure.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel

INTRODUCTION

The appellant served an initial period of active duty for
training from June 25, 1967, to October 24, 1967.  He had
additional service in the U. S. Air Force Reserve from June
1967 to June 1973.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana.

The appellant's case is not affected by the opinion issued by
United States Court of Appeals for Veterans Claims (Court),
Haas v. Nicholson, 20 Vet. App. 257 (2006).

Treatment records were received from Chabert Medical Center.
The appellant was evaluated at that facility in June 2002.
The records show that the appellant made several statements
that could be inferred to raise an issue of entitlement to
service connection for post-traumatic stress disorder (PTSD).
In fact, a diagnosis of PTSD was given on a psychiatric
report form on June 15, 2002, but lined out.  Another record,
dated June 17, 2002, recommended that the appellant seek VA
treatment for his PTSD symptoms.

In light of the appellant's statements, and the medical
references to PTSD, the Board finds that a claim of
entitlement to service connection for PTSD has been raised.
However, the issue has not been developed or certified on
appeal.  It is referred to the RO for such further
development as may be necessary.

FINDINGS OF FACT

1.  The appellant served in the U. S. Air Force Reserve from
June 1967 to June 1973.  He did not serve on active duty but
had an initial active duty for training period from June 25,
1967, to October 24, 1967.

2.  There is no objective evidence of record to show that the
appellant had any herbicide exposure related to his reserve
service.

3.  The evidence of record is against a finding that the
appellant has a prostate disorder, kidney/renal disease,
multiple cysts on the kidneys, peripheral neuropathy, bipolar
disorder, osteoarthritis, hypertension, heart disease, or
gout that is related to his reserve service or a period of
active duty for training.

CONCLUSIONS OF LAW

1.  A prostate disorder was not incurred in or aggravated
during a period of active or inactive duty for training.  38
U.S.C.A. �� 101 (2), (24) (26), 1101, 1110, 1112, 5107 (West
2002); 38 C.F.R. �� 3.6, 3.102, 3.303, 3.304, 3.307, 3.309
(2006).

2.  Kidney/renal disease was not incurred in or aggravated
during a period of active or inactive duty for training.  38
U.S.C.A. �� 101 (2), (24) (26), 1101, 1110, 1112, 5107; 38
C.F.R. �� 3.6, 3.102, 3.303, 3.304, 3.307, 3.309.

3.  Multiple cysts on the kidneys were not incurred in or
aggravated during a period of active or inactive duty for
training.  38 U.S.C.A. �� 101 (2), (24) (26), 1101, 1110,
1112, 5107; 38 C.F.R. �� 3.6, 3.102, 3.303, 3.304, 3.307,
3.309.

4.  Peripheral neuropathy was not incurred in or aggravated
during a period of active or inactive duty for training.  38
U.S.C.A. �� 101 (2), (24) (26), 1101, 1110, 1112, 5107; 38
C.F.R. �� 3.6, 3.102, 3.303, 3.304, 3.307, 3.309.

5.  Bipolar disorder was not incurred in or aggravated during
a period of active or inactive duty for training.  38
U.S.C.A. �� 101 (2), (24) (26), 1101, 1110, 1112, 5107; 38
C.F.R. �� 3.6, 3.102, 3.303, 3.304, 3.307, 3.309.

6.  Osteoarthritis was not incurred in or aggravated during a
period of active or inactive duty for training.  38 U.S.C.A.
�� 101 (2), (24) (26), 1101, 1110, 1112, 5107; 38 C.F.R. ��
3.6, 3.102, 3.303, 3.304, 3.307, 3.309.

7.  Hypertension was not incurred in or aggravated during a
period of active or inactive duty for training.  38 U.S.C.A.
�� 101 (2), (24) (26), 1101, 1110, 1112, 5107; 38 C.F.R. ��
3.6, 3.102, 3.303, 3.304, 3.307, 3.309.

8.  Heart disease was not incurred in or aggravated during a
period of active or inactive duty for training.  38 U.S.C.A.
�� 101 (2), (24) (26), 1101, 1110, 1112, 5107; 38 C.F.R. ��
3.6, 3.102, 3.303, 3.304, 3.307, 3.309.

9.  Gout was not incurred in or aggravated during a period of
active or inactive duty for training.  38 U.S.C.A. �� 101
(2), (24) (26), 1101, 1110, 1112, 5107; 38 C.F.R. �� 3.6,
3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. �� 5103, 5103A (West 2002 &
Supp. 2006), and the pertinent implementing regulation,
codified at 38 C.F.R. � 3.159 (2006), provides that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim.  The provisions also require VA to
notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim.  As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.  In
addition, VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.

In the present case, the appellant's claim was received in
November 2002.  The RO wrote to the appellant to provide the
notice required by the VCAA in December 2002.  The letter
addressed the establishment of service connection, to include
as due to herbicide exposure.  The RO advised the appellant
of the evidence required to substantiate his claim for
service connection.  This included a number of detailed
suggestions of the type of evidence that would be of benefit.
The appellant was also asked to provide specific information
regarding his herbicide exposure, to include information of
the earliest manifestations of symptoms.

The letter advised the appellant of the information required
from him to enable VA to obtain evidence on his behalf, the
assistance that VA would provide to obtain evidence on his
behalf, and that he should submit such evidence or provide VA
with the information necessary for VA to obtain such evidence
on his behalf.  While the letter did not explicitly ask that
the appellant provide any evidence in his possession that
pertains to the claim, as per � 3.159(b)(1), he was advised
of the types of evidence that could substantiate his claim
and to ensure that VA receive any evidence that would support
the claim.  Logically, this would include any evidence in her
possession.

The appellant responded with information regarding his post-
service chemical exposure in December 2002.  He said that all
information should be found in the medical records from the
doctors and facilities he had identified.

The appellant's claim was adjudicated in April 2003.  He was
denied service connection for all of his claimed
disabilities, to include as secondary to herbicide exposure.

The Board finds that the appellant was provided with the
notice required by the VCAA.  He was afforded a meaningful
opportunity to participate in the development of his claim.
The appellant has identified/submitted evidence and submitted
argument throughout the duration of his appeal.  There is no
evidence of prejudice to the appellant based on any notice
deficiency and he has not alleged any prejudice.

All available evidence pertaining to the appellant's claim
has been obtained.  The claims folder contains private
medical records obtained from the five sources identified
from the appellant.  He has stated that all medical
information would be found in those records.

The Board finds that VA has satisfied its duty to notify and
assist.  All obtainable evidence identified by the appellant
relative to his claim has been obtained and associated with
the claims folder, and he has not identified any other
pertinent evidence, not already of record, which would need
to be obtained for a fair disposition of this appeal.  The
Board is also unaware of any such evidence.

The Board has considered whether a VA examination was
required in this case under the duty to assist provisions
codified at 38 U.S.C.A. � 5103A(d) and by regulation found at
38 C.F.R. � 3.159(c)(4).  See McLendon v. Nicholson, 20 Vet.
App. 79, 81 (2006).  The duty to assist under 38 U.S.C.A. �
5103A(d) and 38 C.F.R. � 3.159(c)(4) is triggered when it is
necessary to obtain an examination to make a decision in the
case.  Factors to consider in determining whether an
examination is necessary include whether there is evidence of
a current disability, and whether there is evidence that the
disability may be associated with the appellant's military
service but there is not sufficient medical evidence to make
a decision on the claim.  Id.

The evidence of record is such that the duty to obtain a
medical examination is not triggered in this case.  The
appellant served only on ACDUTRA or INACDUTRA.  He did not
serve on active duty.  He alleges that his claimed
disabilities are related to his reserve service, to include
as due to herbicide exposure.  However, he has not provided
evidence to show that he was treated for any of the claimed
disabilities during his reserve service or that he became
disabled by any of the disabilities during a period of
ACDUTRA.  The medical evidence identified by the appellant
does not relate any of the post-service diagnoses to his
reserve service.  See generally Buchanan v. Nicholson, 451
F.3d 1331 (Fed. Cir. June 2006).  Thus, there is no
requirement to obtain a VA medical examination in this case.
See McLendon, 20 Vet. App. at 85-86; see also Wells v.
Principi, 326 F.3d 1381 (Fed. Cir. 2003) (a appellant is
required to show some causal connection between his
disability and his military service).  The Board finds that
VA has complied, to the extent required, with the duty- to-
assist requirements found at 38 U.S.C.A. � 5103A and 38
C.F.R. � 3.159(c)-(e).

During the pendency of this appeal, the Court, issued a
decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The decision held that the VCAA notice requirements of
38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b) apply to all
five elements of a service connection claim.  Those five
elements include: 1) veteran status; 2) existence of a
disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability.  The Court held that upon receipt of
an application for a service- connection claim, 38 U.S.C.A. �
5103(a) and 38 C.F.R. � 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486.  Additionally, this notice must include notice
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded.  Id.

In the present appeal, the appellant was not provided with
the notice required by the decision in Dingess.  However,
there is no prejudice to the appellant for the lack of
notice.  As the Board has denied service connection for the
claimed disabilities, no ratings or effective dates will be
assigned.  The issue of veteran's status is not in dispute as
to whether the appellant had the requisite service to submit
a claim.  He does have such service.  He is not precluded
from submitting a claim by any bar regarding his status.  See
Dingess, 19 Vet. App. at 486.  Nor can his claim be disposed
of by any reference to his status such as misconduct, or lack
of recognized service under Sabonis v. Brown, 6 Vet. App.
426, 430 (1994).

Accordingly, the Board finds no evidence of prejudicial error
in proceeding with final appellate consideration of his claim
at this time.  See Bernard v. Brown, 4 Vet. App. 384, 394
(1993).
I.  Background

The appellant served in the U. S. Air Force Reserve from June
1967 to June 1973.  He had an initial period of active duty
for training from June 25, 1967, to October 24, 1967.  The
appellant's DD 214 and Air Force (AF) Form 7 personnel record
both reflect that his military specialty was as an
administrative specialist throughout his service in the
reserves.

The AF Form 7 also lists the appellant's assignments during
service, all of which were within the continental United
States.  The appellant's cumulative totals of active duty for
training were listed based on his anniversary date in the
reserves.  The AF Form 7 shows that he had no active duty
days as of June 11, 1968, 27 days as of June 11, 1969, 3 days
as of June 11, 1970, and 22 days as of June 11, 1971.  The
specific dates of the ACDUTRA were not provided.  No
information regarding periods of INACDUTRA was shown.

The appellant's service medical records (SMRs) do not reflect
any findings of complaints or treatment for the issues on
appeal.  The appellant's June 1967 entrance physical
examination noted that he had worn glasses for years for
myopia and had an appendectomy.  He had also been treated for
recurrent muscular back pain for the last two years.  The
SMRs did not contain any regular clinical entries or
additional physical examination reports.  Rather the
appellant submitted yearly statements as to his physical
health by means of an SF-89, Report of Medical History (RMH),
dated in April 1969, May 1970, May 1971, May 1972, and May
1973.  The appellant did not report by way of complaints,
treatment, or diagnosis of anything more than he reported on
his June 1967 physical examination.  He remarked that he was
in good health on each of the several forms.

The appellant submitted his current claim in November 2002.
He listed the issues on appeal and said that he thought that
the various disorders might be due to his exposure to Agent
Orange in service.  Associated with the claims folder is a
Report of Contact dated in December 2002.  The appellant was
asked if he had ever served in Vietnam.  The appellant
responded that he had not.  He advised that he was exposed to
Agent Orange in 1971; however, there were no details listed
in regard to the claimed exposure.

The RO wrote to the appellant to provide the required VCAA
notice in December 2002.  The letter advised the appellant
that he could contact the nearest VA medical center and
request an examination and screening by a special Agent
Orange examination.  He was informed that he would be asked
to provide information regarding his exposure.  The appellant
was asked by the RO to provide information regarding his
post-service exposure to chemical agents and medical care
received.

The appellant provided a response to the request for his
post-service chemical exposure and treatment in December
2002.  He also identified five sources of private treatment
records for the RO to contact.  The appellant did not
identify any treatment from VA.  As will be shown, medical
records were obtained from all of the sources identified by
the appellant.

Records were obtained from Southeast Louisiana Hospital for
psychiatric treatment provided in 1976.  A social evaluation
in the records reported that the appellant had not received
any psychiatric treatment prior to being hospitalized at that
facility in July 1976.  The appellant's problems were said to
have started three months earlier when he fell from an
offshore oilrig and injured his back.  It was noted that,
prior to the back injury, the appellant had numerous
complaints of physical illnesses.  None of the illnesses were
listed in the records.  The evaluation noted that the
appellant's behavior did not deteriorate until he started
taking large amounts of medication for his back pain.  The
appellant's reserve service was noted.  A physical
examination conducted on admission was reported as normal.
An admission note recorded that the appellant said that he
had seen private psychiatrists [in contrast to the social
evaluation report of no prior psychiatric treatment].  The
appellant was said to have no known illnesses but reported
having had "prostate trouble" in the past.  The psychiatric
discharge summary noted that the appellant had many, many
somatic complaints.  There was a diagnosis of schizophrenia,
schizo-affective type.

Records from Haydel Medical Clinic, for the period from March
1977 to February 2000 were obtained.  An entry dated in
December 1978 reported that the appellant's prostate was 2+
and boggy.  The appellant had injured several fingers at
different times and had them x-rayed.  The appellant also
received treatment for high blood pressure.

The appellant received primarily psychiatric treatment from
Terrebonne Mental Health for the period from April 1996 to
January 2003.  Treatment records for that period show that
the appellant was treated for bipolar affective disorder
beginning in 1996.  An entry dated in April 1996 noted that
the appellant had a medical history of treatment for
hypertension and arthritis, although no specific joints were
identified in regard to the history of arthritis.  Another
entry from June 1996 noted that the appellant had problems
with his prostate.  The appellant was said to have a recent
diagnosis of gout in October 1996.  A number of entries noted
that the appellant's kidney functioning was monitored.  An
entry, dated in July 2000, reported that the appellant had
kidney damage from a fall 24 years earlier.  He was also said
to have cysts in his kidneys and prostate problems with
difficulty in urinating.  In July 2001 the appellant told his
health care provider that his psychiatric problems were the
result of his being in the military during the Vietnam War.
In September 2001 he said that he wanted to file a claim
"against the government" for chemical exposures on oilrigs
and in the military.  No further description was provided.

Records were received from University Medical Center for
treatment provided to the appellant from September 2000 to
August 2002.  An initial entry, from September 2000, noted a
history of prostatitis of 34 years and renal problems for 18
years.  The renal problems were said to be secondary to
lithium/hydrochlorothiazide (HCTZ) toxicity.  The appellant
was also noted to have a history of left shoulder tendonitis,
bipolar disorder, gout, and hypertension.  The results of a
number of tests were noted.  The impression was of multiple
cysts on both kidneys, and chronic prostatitis.  The
appellant was treated on several occasions for prostatitis
and polycystic kidney disease (PCKD).

Additional medical records were received from Chabert Medical
Center for the period from January 2002 to September 2003.
The appellant was seen for atypical chest pain in January
2002.  No cardiovascular disease, other than hypertension,
was noted.  An Acute Psychiatric Unit report, dated June 15,
2002, noted that the appellant presented with a complaint
that "I can't take it anymore."  The examiner listed a
history of bipolar disorder and post-traumatic stress
disorder (PTSD).  The appellant reported having intrusive
thoughts of "the boys he sent off to serve and die in
Vietnam."  The appellant's previous psychiatric
hospitalization in 1976 was noted as well as his continued
psychiatric treatment at Terrebonne.  The appellant gave a
history of exposure to Agent Orange.  The psychiatric
diagnoses were bipolar affective disorder, depressed phase,
and alcohol abuse.  There was a diagnosis of PTSD listed for
Axis I but this was lined out.  The appellant was to be
admitted for observation.  A treatment plan entry, dated June
15, 2002, recorded that the appellant felt guilt from being
in service and "things I had to do."  Nothing further was
added in regard to the alleged activities.  A counseling
entry, dated June 17, 2002, reported that the appellant was
recommended to go to VA for evaluation of his PTSD symptoms.
A final entry, dated in September 2003, related to
instructions provided to the appellant for preparation for an
intravenous pyelogram (IVP).

The appellant submitted several statements contending that
his multiple physical problems and his psychiatric condition
were all related to his military service.

II.  Analysis

Direct Service Connection

In general, the law provides that service connection may be
granted for disability resulting from disease or injury
incurred in or aggravated by service.  38 U.S.C.A. � 1110
(West 2002); 38 C.F.R. �� 3.303, 3.304 (2006).

Generally, service connection requires (1) medical evidence
of a current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury.  Hickson v. West, 12 Vet. App. 247, 253
(1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995).

The term "veteran" is defined in 38 U.S.C.A. � 101(2) (West
2002) as "a person who served in the active military, naval,
or air service, and who was discharged or released therefrom
under conditions other than dishonorable."  The term "active
military, naval, or air service" includes active duty, and
"any period of active duty for training during which the
individual concerned was disabled or died from a disease or
injury incurred or aggravated in line of duty, and any period
of inactive duty training during which the individual
concerned was disabled or died from an injury incurred or
aggravated in line of duty."  38 U.S.C.A. � 101(24) (West
2002); 38 C.F.R. � 3.6(a) (2006); see Biggins v. Derwinski, 1
Vet. App. 474, 477-478 (1991).

Active duty for training (ACDUTRA) is defined, in part, as
"full-time duty in the Armed Forces performed by Reserves for
training purposes."  38 U.S.C.A. � 101(22) (West 2002); 38
C.F.R. � 3.6(c) (2006).  The term inactive duty training
(INACDUTRA) is defined, in part, as duty, other than full-
time duty, under sections 316, 502, 503, 504, or 505 of title
32 [U. S. Code] or the prior corresponding provisions of law.
38 U.S.C.A. � 101(23) (West 2002); 38 C.F.R. � 3.6(d) (2006).

Thus, with respect to the appellant's Air Force Reserve
service, service connection may only be granted for
disability resulting from disease or injury incurred or
aggravated while performing ACDUTRA, or an injury incurred or
aggravated while performing INACDUTRA.  38 U.S.C.A. ��
101(24), 106, 1110,; 38 C.F.R. �� 3.6, 3.303, 3.304.  Service
connection is generally not legally merited when a disability
incurred on INACDUTRA results from a disease process.  See
Brooks v. Brown, 5 Vet. App. 484, 487 (1993).

Certain evidentiary presumptions--such as the presumption of
sound condition at entrance to service, the presumption of
aggravation during service of preexisting diseases or
injuries which undergo an increase in severity during
service, and the presumption of service incurrence for
certain diseases which manifest themselves to a degree of
disability of 10 percent or more within a specified time
after separation from service--are provided by law to assist
veterans in establishing service connection for a disability
or disabilities.  38 U.S.C.A. �  1112, (West 2002); 38 C.F.R.
� 3.304(b), 3.306, 3.307, 3.309 (2006).

The advantages of these evidentiary presumptions do not
extend to those who claim service connection based on a
period of ACDUTRA or INACDUTRA.   Paulson v. Brown, 7 Vet.
App. 466, 470-71 (1995) (noting that the Board did not err in
not applying presumptions of sound condition and aggravation
to appellant's claim where he served only on ACDUTRA and had
not established any service-connected disabilities from that
period); McManaway . West, 13 Vet. App. 60, 67 (citing
Paulson, 7 Vet. App. at 469-70, for the proposition that,
"if a claim relates to period of [ACDUTRA], a disability
must have manifested itself during that period; otherwise,
the period does not qualify as active military service and
claimant does not achieve veteran status for purposes of that
claim.").

In this case, the appellant is not considered a veteran under
the applicable statute and regulations.  He did not serve a
period of active duty.  He served an initial period of
ACDUTRA and had additional service in the Air Force Reserve.
Further, the evidence does not demonstrate that the appellant
manifested any of the claimed disorders during his reserve
service or that he was disabled by any of the claimed
disabilities during a period of ACDUTRA.

In that regard, the SMRs do not reflect treatment for any of
the claimed disabilities.  The appellant reported that he was
in good health on each of the submissions for 1969, 1970,
1971, 1972, and 1973.  Thus, there is no evidence in the SMRs
to show that the appellant was disabled at any time during
his period of reserve service from any of the claimed
disabilities.  Harris v. West, 13 Vet. App. 509, 511 (2000).

The post-service private medical records do not establish
that the appellant was disabled from any of the claimed
disabilities during his reserve service.  He was diagnosed
with schizophrenia, schizo-affective type at the time he was
hospitalized in July 1976.  The records from that
hospitalization do not relate the diagnosis to the
appellant's reserve service.  He was later diagnosed with
bipolar disorder in 1996.  Again, this diagnosis was not
related to his reserve service.

Likewise the diagnoses of kidney/renal disease, cysts on the
kidneys, osteoarthritis, hypertension, and gout were all
diagnosed years after the appellant's reserve service.  None
of the medical records relate those diagnoses to his reserve
service.  A July 2000 entry from Terrebonne Mental Health
noted that the appellant had kidney problems from a fall 24
years earlier (1976).  Records from University Medical Center
attributed the appellant's kidney disease to lithium/HCTZ
toxicity.

The medical evidence of record does not document a diagnosis
of heart disease or peripheral neuropathy.  The appellant
does have diagnoses of hypertension and kidney disease but
there is no evidence of heart disease as a separate
diagnostic entity.

In regard to the appellant's prostatitis the medical records
do show that he related having had prostate problems in the
past when he was hospitalized in 1976.  He also reported a 34
year history of complaints when he was seen in September
2000, meaning the condition went back to 1966.  However, the
SMRs reflect no military treatment for the condition during
reserve service, and certainly do not reflect any evidence of
the appellant being disabled from prostatitis during his
reserve service.  Moreover, none of the private medical
records have associated the appellant's prostatitis with his
reserve service other than by way of vague statements of
prostate problems in the past.

There is no medical evidence to establish a nexus between any
currently claimed disability and the appellant's reserve
service, in general, and no medical evidence to show that he
was disabled at any time from any of the claimed disabilities
during his reserve service, to include any period of ACDUTRA.

Service Connection Secondary to Herbicide Exposure

The appellant has also alleged that his claimed disabilities
are due to his exposure to herbicides, or Agent Orange.  The
appellant's military service, based on service records in the
claims folder, do not reflect any service in Vietnam, or any
other overseas location.  Further, the appellant denied any
service in Vietnam.

The appellant has said he was exposed to herbicides in 1971
but he has not identified any of the details involved such as
exact date, location, or his duty status.  In his several
statements he refers to exposure to "2-4-T" but never
provides the necessary details to confirm such exposure.

Certain diseases associated with exposure to herbicide agents
may be presumed to have been incurred in service even though
there is no evidence of the disease in service, provided the
requirements of 38 C.F.R. � 3.307(a)(6) (2006) are met.  See
38 C.F.R. � 3.309(e) (2006).  The diseases for which service
connection may be presumed to be due to an association with
herbicide agents include chloracne or other acneform disease
consistent with chloracne, Type 2 diabetes (also known as
Type II diabetes mellitus or adult-onset diabetes), Hodgkin's
disease, chronic lymphocytic leukemia, multiple myeloma; non-
Hodgkin's lymphoma, acute and subacute peripheral neuropathy,
porphyria cutanea tarda, prostate cancer, respiratory cancers
(cancer of the lung, bronchus, larynx, or trachea), and soft-
tissue sarcoma (other than osteosarcoma, chondrosarcoma,
Kaposi's sarcoma, or mesothelioma).

In general, for service connection to be granted for one of
these diseases, it must be manifested to a degree of 10
percent or more at any time after service.  Chloracne,
porphyria cutanea tarda, and acute and subacute peripheral
neuropathy must be manifest to a degree of 10 percent within
one year after the last date on which the veteran performed
active military, naval, or air service in the Republic of
Vietnam during the period beginning on January 9, 1962, and
ending on May 7, 1975.  See 38 C.F.R. � 3.307(a)(6)(ii)
(2006).  A veteran who served in the Republic of Vietnam
during the period beginning on January 9, 1962, and ending on
May 7, 1975, will be presumed to have been exposed during
such service to an herbicide agent unless there is
affirmative evidence to the contrary.

The Board notes that 38 U.S.C.A. � 1116 was amended by
section 201 of VEBEA, effective December 27, 2001.
Specifically, section 201(c) of the VEBEA amended 38 U.S.C.A.
� 1116 so as to establish a statutory presumption of exposure
to herbicide agents for veterans that served in Vietnam
during the Vietnam era, as noted above.

It is important to note that the diseases listed at 38 C.F.R.
� 3.309(e) are based on findings provided from scientific
data furnished by the National Academy of Sciences (NAS).
Section 3 of the Agent Orange Act of 1991, Pub. L. 102-4,
established the initial requirement that the Secretary enter
into an agreement with the NAS to review available scientific
evidence to determine if a particular disease is associated
with exposure to herbicides.  The NAS conducts studies to
"summarize the scientific evidence concerning the association
between exposure to herbicides used in support of military
operations in Vietnam during the Vietnam era and each disease
suspected to be associated with such exposure."  64 Fed. Reg.
59,232-59,243 (Nov. 2, 1999).  Reports from NAS are submitted
at two-year intervals to reflect the most recent findings.
Based on input from the NAS reports, the Congress amends the
statutory provisions of the Agent Orange Act found at
38 U.S.C.A. � 1116 and the Secretary promulgates the
necessary regulatory changes to reflect the latest additions
of diseases shown to be associated with exposure to
herbicides.

The findings of the biennial studies are published by the
National Academy Press as noted above.  The original edition
was entitled Veterans and Agent Orange (VAO).  Hardbound
editions of updates for 1996, 1998, 2000, 2002 and 2004 have
since been published.

In this case, the latest notice regarding diseases not
associated with exposure to certain herbicides was published
in 2007.  See 72 Fed. Reg. 32,395-32,407 (June 12, 2007).
Other than peripheral neuropathy, there was no finding of an
association between exposure to herbicides and the
development of any of the appellant's claimed disabilities.

Finally, VA has announced that there is evidence of the use
of herbicides, as defined by 38 U.S.C.A. � 1116 and 38 C.F.R.
� 3.307(a)(6)(i), in countries other than Vietnam, and, in
some instances, the use of storage of herbicides at various
locations within the U.S.

Although the appellant has not provided information relative
to his claimed exposure, such information is not necessary in
this case.  The appellant's claimed disabilities are not
among those listed for presumptive service connection.  He
has prostatitis, not prostate cancer.  He does not have a
diagnosis of peripheral neuropathy.  The remaining issues
have not been established as being related to exposure to
herbicides.

The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits.  The
Board is unable to identify a reasonable basis for granting
service connection for any of the appellant's claimed
disabilities.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58
(1990); 38 U.S.C.A. � 5107(b) (West 2002); 38 C.F.R. � 3.102
(2006).

	(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to service connection for a prostate disorder,
kidney/renal disease, multiple cysts on the kidneys,
peripheral neuropathy, bipolar disorder, osteoarthritis,
hypertension, heart disease, and gout is denied.

____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: MICHAEL J SKALTSOUNIS

disposition: remanded

text:
Citation Nr: 0724000
Decision Date: 08/03/07    Archive Date: 08/15/07

DOCKET NO.  04-29 368	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased (initial) rating for a mechanical
low back disability, currently rated as 10 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

T. Adams, Associate Counsel

INTRODUCTION

The veteran served on active duty from May 1995 to June 1998.

This case is before the Board of Veterans' Appeals (Board) on
appeal from a January 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida, which granted service connection and
awarded a 10 percent disability rating for a mechanical low
back disability.

The appeal is remanded to the RO via the Appeals Management
Center (AMC), in Washington, DC.

REMAND

VA has a duty to assist claimants in the development of facts
pertinent to claims and VA must accomplish additional
development of the evidence if the record currently before it
is inadequate.  38 U.S.C.A. � 5103A.

In the July 2007 informal hearing brief, the veteran alleges
that her back disability has worsened since her last VA
examination in March 2005.  The Board further notes that
additional private treatment records have been received by
the Board for the period of March to June 2005, without
waiver of the RO's initial review of this pertinent evidence,
which further document the veteran's contention as to
worsening symptoms.  Therefore, while the Board considered
taking steps to obtain a waiver of the RO's initial review of
this recently received evidence, as a result of the evidence
of worsening symptoms since the veteran's last VA examination
in March 2005, the Board finds that the better course of
action is to remand the claim so that the RO can review this
additional evidence in conjunction with the results from a
new VA orthopedic examination.  When available evidence is
too old for an adequate evaluation of the veteran's current
condition, VA's duty to assist includes providing a new
examination.  Weggenmann v. Brown, 5 Vet. App. 281, 284
(1993).

Therefore, the Board finds that the veteran should be
afforded a VA examination to ascertain the current nature and
severity of this service-connected disability, and that the
RO should thereafter readjudicate the veteran's claim based
on all applicable rating criteria and evidence of record.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the veteran for an
appropriate VA examination to determine
the extent and severity of her service-
connected back disability.  The claims
folder must be made available to and be
reviewed by the VA examiner in
conjunction with the examination, and
the examination report must reflect
that the claims folder was reviewed.
All indicated studies must be
conducted.  The examiner should also
record pertinent complaints, symptoms,
and clinical findings.

2.  Following completion of the
foregoing, review the issue on appeal
based on all applicable rating criteria
and evidence of record.  If the
decision remains adverse to the
veteran, issue a supplemental statement
of the case and allow the applicable
period of time for response.
Thereafter, return the case to the
Board.

The veteran is hereby informed that failure to report for a
scheduled examination or failure to cooperate with any
requested development may result in the denial of the claim.
See 38 C.F.R. � 3.655.  The appellant has the right to submit
additional evidence and argument on the matter the Board has
remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment.  The law
requires that claims remanded by the Board or the United
States Court of Appeals for Veterans Claims for development
or other action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2006).

_________________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2006).


judge_norm: GEORGE R SENYK

disposition: denied

condition: knee

condition: liver

condition: tinnitus

condition: back

text:
Citation Nr: 0725000
Decision Date: 08/13/07    Archive Date: 08/20/07

DOCKET NO.  04-07 588A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington

THE ISSUES

1.  Entitlement to service connection for residuals of right
knee injury.

2.  Entitlement to service connection for residuals of left
knee injury.

3.  Entitlement to service connection for residuals of right
ankle injury.

4.  Entitlement to service connection for residuals of left
ankle injury.

5.  Entitlement to service connection for hepatitis.

6.  Entitlement to service connection for residuals of head
injury.

7.  Entitlement to service connection for bilateral hearing
loss.

8.  Entitlement to service connection for tinnitus.

9.  Entitlement to service connection for cervical spine
disability.

10.  Entitlement to service connection for lumbar spine
disability.
11.  Entitlement to service connection for disability
manifested by memory loss.

12.  Entitlement to service connection for disability
manifested by loss of grip strength, right hand.

13.  Entitlement to service connection for disability
manifested by loss of grip strength, left hand.

14.  Entitlement to service connection for vertigo.

15.  Entitlement to a rating in excess of 50 percent for
post-traumatic stress disorder (PTSD).

16.  Entitlement to a rating in excess of 10 percent for
emphysema.

17.  Entitlement to a total disability rating based on
individual unemployability due to service connected
disabilities (TDIU).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

M.G. Mazzucchelli, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from
October 1967 to December 1969.  This matter is before the
Board of Veterans' Appeals (Board) on appeal from a June 2003
rating decision of the Seattle, Washington, Department of
Veterans Affairs (VA) Regional Office (RO).

The issue of entitlement to TDIU is being REMANDED to the RO
via the Appeals Management Center (AMC), in Washington, DC.
VA will notify the veteran if any action on his part is
required.

FINDINGS OF FACT

1.  No injury to the left or right ankle, left or right knee,
head, neck, or lower back was noted in service, and competent
medical evidence has not identified any current left or right
ankle, left or right knee, head, neck, or lower back
pathology attributable to an injury in service.

2.  The first indication of left knee pathology in the record
is found approximately two decades after the veteran's
separation from his period of service; the preponderance of
the evidence is against a finding that the veteran's left
knee disability is related to service.

3.  The first indication of right ankle pathology in the
record is found more than two decades after the veteran's
separation from his period of service; the preponderance of
the evidence is against a finding that the veteran's right
ankle disability is related to service.

4.  Hepatitis was not manifested in service, and a
preponderance of the evidence is against a finding that
current hepatitis C disability is related to service.

5.  It is not shown that the veteran has a hearing loss
disability of the left ear by VA standards.

6.  Right ear hearing loss disability was not manifested in
service; right ear sensorineural hearing loss was not
manifested in the first postservice year; and the
preponderance of the evidence is against a finding that the
veteran's current right ear hearing loss disability is
related to his service or to any event therein.

7.  Tinnitus was not manifested in service, and is not shown
to be related to the veteran's service.

8.  The first indication of neck or cervical spine pathology
in the record is approximately two decades after the
veteran's separation from his period of service; the
preponderance of the evidence is against a finding that the
veteran's cervical spine disability is related to his
service.

9.  The first indication of back or lumbar spine pathology in
the record is approximately two decades after the veteran's
separation from his period of service; the preponderance of
the evidence is against a finding that the veteran's lumbar
spine disability is related to hi service.

10.  The record does not show a diagnosed disability
manifested by memory loss other than PTSD; memory loss
associated with PTSD is encompassed in the rating for that
disability.

11.  The first indication of right hand pathology in the
record is more than three decades after the veteran's
separation from service; the preponderance of the evidence is
against a finding that his right hand disability is related
to service; chronic left hand pathology is not shown.

12.  The first indication of vertigo in the record is found
more than three decades after the veteran's separation from
his period of service; the preponderance of the evidence is
against a finding that any current disability manifested by
vertigo is related to service.

13.  During the appeals period, with the exception of the
period of hospitalization from May 2002 to July 2002, the
veteran's PTSD has resulted in impairment no greater than
occupational and social impairment with reduced reliability
and productivity; occupational and social impairment with
deficiencies in most areas due to symptoms such as suicidal
ideation, obsessional rituals, speech disturbances, or other
symptoms of like gravity is not shown.

14.  During the appeals period, the veteran's emphysema has
not been manifested by Forced Expiratory Volume in one second
(FEV-1) value of 56 to 70 percent predicted, a Forced
Expiratory Volume in one second to Forced Vital Capacity
(FEV-1/FVC) value of 56 to 70 percent, or a Diffusion
Capacity of the Lung for Carbon Monoxide by the Single Breath
Method (DLCO (SB)) of 56 to 65 percent predicted.

CONCLUSIONS OF LAW

1.  Service connection for residuals of a left knee injury is
not warranted.  38 U.S.C.A. � 1110 (West 2002 & Supp. 2006);
38 C.F.R. � 3.303 (2006).

2.  Service connection for residuals of a right knee injury
is not warranted.  38 U.S.C.A. � 1110 (West 2002 & Supp.
2006); 38 C.F.R. � 3.303 (2006).

3.  Service connection for residuals of a left ankle injury
is not warranted.  38 U.S.C.A. � 1110 (West 2002 & Supp.
2006); 38 C.F.R. � 3.303 (2006).

4.  Service connection for residuals of a right ankle injury
is not warranted.  38 U.S.C.A. � 1110 (West 2002 & Supp.
2006); 38 C.F.R. � 3.303 (2006).

5.  Service connection for hepatitis is not warranted. 38
U.S.C.A. � 1110 (West 2002 & Supp. 2006); 38 C.F.R. � 3.303
(2006).

6.  Service connection for residuals of a head injury is not
warranted.  38 U.S.C.A. � 1110 (West 2002 & Supp. 2006); 38
C.F.R. � 3.303 (2006).

7.  Service connection for bilateral hearing loss is not
warranted.  38 U.S.C.A. �� 1110, 1112 (West 2002 & Supp.
2006); 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309, 3.385 (2006).
8.  Service connection for tinnitus is not warranted.
38 U.S.C.A. � 1110 (West 2002 & Supp. 2006); 38 C.F.R. �
3.303 (2006).

9.  Service connection for residuals of cervical spine injury
is not warranted.  38 U.S.C.A. � 1110 (West 2002 & Supp.
2006); 38 C.F.R. � 3.303 (2006).

10.  Service connection for residuals of lumbar spine injury
is not warranted.  38 U.S.C.A. � 1110 (West 2002 & Supp.
2006); 38 C.F.R. � 3.303 (2006).

11.  Service connection for a disability manifested by memory
loss is not warranted.  38 U.S.C.A. � 1110 (West 2002 & Supp.
2006); 38 C.F.R. � 3.303 (2006).

12.  Service connection for disability manifested by loss of
grip strength, right hand, is not warranted.  38 U.S.C.A. �
1110 (West 2002 & Supp. 2006); 38 C.F.R. � 3.303 (2006).

13.  Service connection for disability manifested by loss of
grip strength, left hand, is not warranted.  38 U.S.C.A. �
1110 (West 2002 & Supp. 2006); 38 C.F.R. � 3.303 (2006).

14.  Service connection for vertigo is not warranted.
38 U.S.C.A. � 1110 (West 2002 & Supp. 2006); 38 C.F.R.
� 3.303 (2006).

15.  A rating in excess of 50 percent for PTSD is not
warranted.  38 U.S.C.A. �� 1155, 5107 (West 2002 & Supp.
2006); 38 C.F.R. �� 4.7, 4.130, Diagnostic Code (Code) 9411
(2006).

16.  A rating in excess of 10 percent for emphysema is not
warranted.  38 U.S.C.A. �� 1155, 5107 (West 2002 & Supp.
2006); 38 C.F.R. �  4.97, Diagnostic Code 6603 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

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

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

The veteran has been advised of VA's duties to notify and
assist in the development of his claim.  Letters from the RO
in October 2002, December 2002, December 2005 explained what
the evidence needed to show to substantiate the claims.  They
also explained that VA was responsible for obtaining relevant
records from any federal agency, and that VA would make
reasonable efforts to obtain records not held by a federal
agency, but that it was the veteran's responsibility to make
sure that VA received all requested records not in the
possession of a federal department or agency.  The June 2003
rating decision, a March 2004 statement of the case (SOC) and
subsequent supplemental SOCs provided the text of applicable
regulations and explained what the evidence showed and why
the claim was denied.  A May 2006 letter provided notice
regarding disability ratings and effective dates of awards
(See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006);
however, this would only be relevant if a benefit sought on
appeal was being granted.

While complete VCAA notice was not provided prior to the
rating on appeal, the appellant had ample opportunity to
respond to the notice letters and the SOC and SSOCs and to
supplement the record after notice was given.  The claims
were thereafter readjudicated.  See September 2006
supplemental SOC.  The veteran is not prejudiced by any
technical notice deficiency that may have occurred along the
way, and no further notice is required.  See Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Regarding VA's duty to assist, the RO has obtained the
veteran's service medical records, along with relevant
private and VA medical evidence.  Medical records were
obtained from the Social Security Administration (SSA).  The
veteran has not identified any additional evidence pertinent
to these claims.  He was provided VA examinations.  VA's
assistance obligations are met. The veteran is not prejudiced
by the Board's proceeding with appellate review.

II.  Service Connection Claims

For service connection to be granted, the law requires that
there be a disability and that the disability result from
disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  Regulations provide
that 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).  Additionally,
arthritis and sensorineural hearing loss may be presumed to
have been incurred in service, if the evidence shows that
such disease became manifest to a degree of 10 percent or
more within one year from separation from active service,
even though there is no evidence of such disease during the
period of service.  38 U.S.C.A. �� 1101, 1112, 1113, 1137; 38
C.F.R. �� 3.307, 3.309.

In order to prevail on the issue of service connection, there
must be medical evidence of a current disability; medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and medical
evidence of a nexus between the claimed in-service disease or
injury and the current disability.  See Hickson v. West, 12
Vet. App. 247 (1999).
Left and Right Knees

The veteran's service medical records (SMRs) do not note any
knee injury.  The service discharge examination in December
1969 noted normal lower extremities.

A June 1989 private treatment record noted that two days
earlier the veteran had heard a popping sensation after
planting his left knee and turning to the right.  The
assessment was probable medial collateral ligament sprain,
possible meniscus tear.  X-ray of the left knee showed no
evidence of acute bony injury.  There was a notation of
myositis ossificans in the area of the medial collateral
ligament which are usually secondary to old trauma.  In
October 1989, the veteran underwent arthroscopy of the left
knee for repair of torn medial meniscus.  A June 1990 VA
examination report noted the veteran reported a history of
right knee surgery in 1988.  On VA examination in February
2003, range of motion of the knees was complete.  In a March
2003 treatment record, the veteran reported that his "left
knee feels like it's going out."  No diagnosis was made.

The record does not demonstrate a right knee injury in
service or that the veteran currently has any right knee
pathology.  (His reported history to the VA examiner in June
1990 of right knee surgery in 1988 likely refers to the left
knee).  The veteran's left knee pathology was first noted
following an injury in 1989, approximately two decades
following his separation from service.  There is no competent
medical evidence of record of a nexus between the left knee
disability identified in 1989 and the veteran's period of
active duty.

The veteran's assertion that he has left and right knee
pathology related to his period of active duty amounts to an
opinion about a matter of medical causation.  There is no
indication from the record that the veteran has medical
training or expertise.  Because he is a layperson, he is not
competent to offer a medical opinion regarding the diagnosis
or etiology of a disorder.  See Espiritu v. Derwinski, 2 Vet.
App. 492, 494-45 (1992).

For the reasons discussed above, the claims of service
connection for left and right knee disabilities must be
denied.  In reaching this conclusion, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine.  As the preponderance of the evidence is against
these claims, that doctrine does not apply in these matters.
38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49
(1991).

Left and Right Ankles

SMRs do not note an injury to either ankle.  The service
discharge examination in December 1969 noted normal lower
extremities.

A private medical record dated in January 1991 noted that
veteran was treated in the Emergency Department for a second
degree right ankle sprain after stepping in a hole.  Follow-
up treatment report one week later noted the veteran with a
splint on the right lower extremity.  He was able to ambulate
with minimal difficulty.  On VA examination in February 2003,
range of motion of the ankles was complete.

The record does not demonstrate a left ankle injury in
service or that the veteran currently has any left ankle
pathology.  A right ankle injury was noted in January 1991,
more than two decades following his separation from service.
There is no competent medical evidence of record of a nexus
between the right ankle disability noted in 1991 and the
veteran's period of active duty.

The veteran's assertion that he has left and right ankle
pathology related to his period of active duty amounts to an
opinion about a matter of medical causation.  There is no
indication from the record that the veteran has medical
training or expertise.  Because he is a layperson, he is not
competent to offer a medical opinion regarding the diagnosis
or etiology of a disorder.  See Espiritu, supra.

For the reasons discussed above, the claims for service
connection for left and right ankle disabilities must be
denied.  As the preponderance of the evidence is against
these claims, the doctrine of resolving reasonable doubt in
the claimant's favor does not apply.  38 C.F.R. � 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

Hepatitis

The veteran's SMRs do not note hepatitis.  The service
discharge examination in December 1969 noted normal body
systems.

A VA examination in June 1990 found that the veteran was
generally healthy.  He reported a history of hepatitis C on
his admission to PTSD inpatient treatment at a VA facility in
May 2002.  He indicated that he believed he acquired
hepatitis C through vaccinations in service; he also reported
a history of drug use, including heroin and cocaine.

The record does not show that hepatitis was manifested in
service.  The veteran first reported a history of hepatitis C
in 2002.  A July 2002 record indicates that there is evidence
of active disease seriologically.  Hepatitis C is shown to
have manifested many years after the veteran's service
discharge.  There is no competent evidence (medical opinion)
linking the veteran's hepatitis C to his service.  The only
evidence of record to the effect that there is a nexus
between current hepatitis and service is in the veteran's own
allegations.  As a layperson, he is not competent to relate a
medical disorder to a specific cause.  Espiritu, supra.  His
theory of infection is entirely speculative, particularly in
light of his admitted history of drug use involving heroin.
His speculations are without probative value and any medical
opinion based upon such speculation would not be capable of
substantiating the claim.

The lapse of many years between the veteran's separation from
service and the first indication of hepatitis is also a
factor for consideration in deciding a service connection
claim.  Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir.
2000).  Without any evidence of hepatitis in service or any
competent evidence of a nexus between current hepatitis C and
service or any event therein, the preponderance of the
evidence is against his claim seeking service connection for
hepatitis.  There is no reasonable doubt to resolve in the
veteran's favor.  Hence, the claim must be denied.

Head Injury

The veteran's SMRs do not note a head injury.  On service
discharge examination in December 1969, his head was normal.
VA examination in June 1990 noted negative head examination.
A December 1991 private treatment record noted the veteran's
complaints of headache off and on for the past two weeks.  He
reported that he had experienced headaches previously that
were related to emotional stress.  The veteran denied any
recent head trauma.  The diagnosis was tension headaches.

On his admission to PTSD inpatient treatment at a VA facility
in May 2002, the veteran reported a history of head injuries
in motor vehicle accidents in 1972, 1973, and 1984.  Chronic
intermittent headaches were noted.  On VA examination in
February 2003, the veteran reported constant headaches.  In a
March 2003 outpatient record, he reported constant headaches
that he said had been present for years.  In May 2004, he
again reported frequent headaches.

The record does not demonstrate a head injury in service.
Headaches were first noted in 1991, more than two decades
following his separation from service.  There is no competent
medical evidence of record of a nexus between the veteran's
current headaches, which have been described as tension
headaches, and his period of active duty.

The veteran's assertion that his headaches are related to his
period of active duty is undercut by his report of head
injuries in three separate car accidents after service; in
any event, his assertion amounts to an opinion about a matter
of medical causation.  As noted above, because he is a
layperson, he is not competent to offer a medical opinion
regarding the diagnosis or etiology of a disorder.  See
Espiritu, supra.

For the reasons discussed above, the claim for service
connection for residuals of head injury must be denied.  In
reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine.  As the
preponderance of the evidence is against this claim, that
doctrine does not apply.  38 C.F.R. � 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49 (1991).
Hearing Loss and Tinnitus

Hearing loss disability is defined by regulation.  For the
purpose of applying the laws administered by VA, impaired
hearing is considered to be a disability when the auditory
threshold in any of the frequencies 500, 1000, 2000, 3000,
4000 Hertz is 40 decibels or greater; or when the auditory
thresholds for at least three of those frequencies are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent.  38 C.F.R. �
3.385.

On the veteran's enlistment examination in September 1967,
audiometry showed the following:

HERTZ

500
1000
2000
4000
RIGHT
0
0
0
0
LEFT
0
5
5
5

Hearing loss is not noted in the veteran's SMRs.  On
discharge examination in December 1969, his ears were normal.
Whispered voice testing of the left ear showed hearing as
15/15.  There is no indication that right ear testing was
accomplished.

VA examination in June 1990 did not include any complaints
related to hearing loss or tinnitus.  During VA
hospitalization in August 2002, right ear hearing loss was
noted.

On VA examination in June 2006, the veteran reported a
history of hearing loss and tinnitus since 1970.  He reported
noise exposure following service from hunting, shooting,
power tools, motorcycles, and personal watercraft.

Audiometry showed the following:

HERTZ

500
1000
2000
3000
4000
RIGHT
30
35
25
60
65
LEFT
5
15
15
15
25

Speech audiometry revealed that speech recognition was 60
percent in the right ear and 94 percent in the left ear.  The
examiner noted right ear hearing loss and bilateral tinnitus.

A VA ear, nose, and throat specialist reviewed the claims
folder and provided an opinion dated in August 2006.  The VA
physician noted that:

The hearing loss appears to be sensorineural and
right ear only.  The tinnitus appears to be
bilateral, and first mention of both the tinnitus
and the hearing loss is 33 years after his
military discharge.  Most noise-induced
sensorineural hearing losses are bilateral and
symmetrical.  The exception would be from
asymmetrical noise exposure, such as firing
firearms or open exhaust from an automobile on one
ear or the other.  Since this patient is right-
handed, one would expect any asymmetrical noise-
induced loss to affect the left ear, which is the
normal ear in this case....

I am not seeing any causal relationship between
this patient's right sensorineural hearing loss
and bilateral tinnitus to a retrospective military
exposure 37 years previously....

In my opinion, this hearing loss and tinnitus is
less likely as not caused by or a result of his
military service in the Navy from 1967 to 1969.

Left Ear

Although acoustic trauma is not specifically noted in the
SMRs, the veteran claims that he was exposed to noise from
shipboard duty in engine rooms and from firing weapons during
training.  Regardless of whether he was exposed to noise
trauma in service, a hearing loss disability was not noted in
the available SMRs.  Consequently, service connection for
left ear hearing loss on the basis that such disability
became manifest in service (and persisted) is not warranted.

The threshold matter in any claim seeking service connection
is whether the claimed disability is shown.  Here, the
medical evidence does not show that the veteran has a left
ear hearing loss disability (as defined by regulation).  The
veteran is not competent to establish by his own opinion that
he has a hearing loss disability by VA standards or that any
such disability would be related to acoustic trauma in
service.

The threshold requirement for establishing service connection
is not met.  Absent proof of a present disability, there is
no valid claim of service connection.  See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).  There is a
preponderance of the evidence is against the claim.  Hence,
it must be denied.

Right Ear

The veteran has a right ear hearing loss disability by VA
standards.  June 2006 VA audiometry showed right ear puretone
thresholds meeting the regulatory definition of hearing loss
disability.  It may also be assumed (and is not in dispute)
that, by virtue of his shipboard service in the Navy the
veteran was subjected to noise trauma in service.

However, a hearing loss disability was not noted in service,
and there is no evidence that a right ear sensorineural
hearing loss was manifested to a compensable degree in the
first postservice year so as to allow for a finding that
right ear hearing loss became manifest in service, and
persisted or to warrant application of the chronic disease
presumptions of 38 U.S.C.A. � 1112 (for sensorineural hearing
loss as organic disease of the nervous system).  Furthermore,
the VA ear, nose, and throat specialist in August 2006
provided an opinion, based on review of the record in this
case, that the veteran's current hearing loss disability was
unrelated to event(s) in service.  There is no competent
(medical opinion) evidence to the contrary.  The veteran's
own opinion that his current right ear hearing loss
disability is related to noise exposure in service is not
competent evidence.  See Espiritu, supra.  Medical nexus is a
question requiring medical expertise, and the only medical
opinion regarding the etiology of the veteran's hearing loss
is to the effect that it is unrelated to the veteran's
service.

Consequently, the preponderance of the evidence is against
the claim seeking service connection for right ear hearing
loss disability, and the claim must be denied.

Tinnitus

As shown above, tinnitus was not noted in service.  The first
indication of tinnitus in the record comes in 2002, more than
three decades after discharge from service.  The VA ear,
nose, and throat specialist in August 2006 provided an
opinion, based on review of the record in this case, that the
veteran's current tinnitus was unrelated to event(s) in
service.  There is no competent (medical opinion) evidence to
the contrary.  The veteran's own opinion that his current
tinnitus is related to noise exposure in service is not
competent evidence.  See Espiritu, supra.  Medical nexus is a
question requiring medical expertise, and the only medical
opinion regarding the etiology of the veteran's tinnitus is
to the effect that it is unrelated to the veteran's service.
While the veteran is competent to report that he experienced
tinnitus beginning shortly after service, the lack of any
objective evidence that he reported such tinnitus to any
medical professional for more than three decades after
service makes his latter-day contentions in that regard less
than persuasive.

Consequently, the preponderance of the evidence is against
the claim seeking service connection for tinnitus, and the
claim must be denied.

Cervical Spine/Neck

The veteran's SMRs do not note a neck injury.  On service
discharge examination in December 1969, his neck was normal.
VA examination in June 1990 noted the veteran had a history
of an industrial accident involving a cervical disc in 1979.
Neck examination was negative.

A July 2002 treatment report noted complaints of chronic neck
pain.  A diagnosis of degenerative disc disease of the
cervical spine was noted in July 2002.  On VA examination in
February 2003, the neck was supple, with normal flexion and
extension.

The record does not show a neck injury in service.  Neck
complaints were first noted in 1990, more than two decades
following the veteran's separation from service, and he
indicated at that time that he had a cervical disc injury in
1979 (10 years postservice).  There is no competent (medical)
evidence of record of a nexus between the veteran's current
cervical spine pathology, diagnosed as degenerative disc
disease, and his period of active duty.

The veteran's assertion that his cervical spine pathology is
related to his service is undercut by his report of an
industrial accident involving a cervical disc in 1979; in any
event, his assertion amounts to an opinion about a matter of
medical causation.  Because he is a layperson, he is not
competent to offer a medical opinion regarding the diagnosis
or etiology of a disorder.  See Espiritu, supra.

For the reasons discussed above, the claim for service
connection for a cervical spine disability must be denied.
In reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine.  As the
preponderance of the evidence is against this claim, that
doctrine does not apply.  38 C.F.R. � 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49 (1991).

Lumbar Spine

The veteran's SMRs do not note a back injury.  His service
discharge examination in December 1969 found the spine to be
normal.  VA examination in June 1990 noted the veteran
reported a history of an industrial accident resulting in low
back strain in 1986.  Examination was essentially negative.

A July 2002 treatment report noted complaints of chronic back
pain.  A diagnosis of degenerative disc disease of the
thoracolumbar spine was noted in July 2002.

The record does not show a back injury in service.  Back
complaints were first noted in 1990, more than two decades
following the veteran's separation from service, and he
indicated at that time that he sustained a low back strain in
1986.  There is no competent medical evidence of record of a
nexus between the veteran's current lumbar spine pathology,
diagnosed as degenerative disc disease, and his service.

The veteran's assertion that his lumbar spine pathology is
related to his active duty is undercut by his report of an
industrial accident resulting in low back strain in 1986; in
any event, this assertion amounts to an opinion regarding
medical causation.  Because he is a layperson, he is not
competent to offer a medical opinion regarding the etiology
of a disability.  See Espiritu, supra.

For the reasons discussed above, the claims for service
connection for a lumbar spine disability must be denied.  The
Board has considered the applicability of the benefit-of-the-
doubt doctrine.  As the preponderance of the evidence is
against this claim, that doctrine does not apply.  38 C.F.R.
� 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

Memory Loss

The veteran's SMRs do not mention memory loss, nor does the
record contain any diagnosis of a disability manifested by
memory disorder, with the exception of PTSD.  PTSD is service
connected, and that current 50 percent rating for that
disability encompasses symptoms of memory impairment.

In general, all disabilities, including those arising from a
single disease entity, are rated separately, and the ratings
are combined in accordance with 38 C.F.R. � 4.25.  However,
the evaluation of the same "disability" or the same
"manifestations" under various diagnoses is prohibited.
38 C.F.R. � 4.14.

The Court has held that a veteran may not be compensated
twice for the same symptomatology as "such a result would
overcompensate the claimant for the actual impairment of his
earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206
(1993). This would result in pyramiding, contrary to the
provisions of 38 C.F.R. � 4.14.

Here, there is no medical evidence of a separate (distinct
from PTSD) disability manifested by memory loss.  Hence,
there is no basis for a grant of service connection for such
disability.

Loss of Grip Strength, Upper Extremities

The veteran's SMRs do not show any complaints related to
either hand.  His discharge examination found normal upper
extremities.  The June 1990 VA examination found normal
extremities.

On VA examination in February 2003, the veteran reported
swelling of the hands in warm weather, with thickening of the
fingers.  The examiner noted that the fingers and thumbs were
fully mobile.  A June 2005 treatment record noted right hand
pain, and the veteran reported that he had recently undergone
surgery for trigger finger.  Examination showed mild swelling
of the first and second metacarphophalangeal joints, and
tenderness to palpation.  In October 2005, the veteran
reported increased right hand pain.  In December 2005, he
reported that his right hand pain had increased over the past
year.  He indicated that the original injury occurred while
digging with his hand on an organic farm.  The examiner
stated that the veteran's right hand symptoms including
intermittent swelling and decreased grip strength may be
related to neurovascular compression of the right thoracic
outlet region.

The record does not show a left hand injury in service or
that the veteran currently has a left hand disability.  Right
hand pathology was first noted in 2005, more than three
decades following his separation from service.  There is no
competent medical evidence of record of a nexus between the
right hand disability noted in 2005 and the veteran's active
duty.

The veteran's assertion that he has left hand pathology
related to his active duty is not supported by the objective
record.  His claim that the right hand pathology is related
to his active duty is undercut by his report of an injury
from digging in 2004; in any event, this assertion amounts to
an opinion about a matter of medical causation.  Because he
is a layperson, the veteran is not competent to offer a
medical opinion regarding the etiology of a disorder.  See
Espiritu, supra.

For the reasons discussed above, the claims for service
connection for left and right hand disabilities must be
denied.  In reaching this conclusion, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine.  As the preponderance of the evidence is against
these claims, that doctrine does not apply.  38 C.F.R. �
3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

Vertigo

SMRs do not show any complaints related to dizziness or
vertigo.  The discharge examination noted normal neurologic
examination.  The June 1990 VA examination noted essentially
negative physical examination.

An April 2003 treatment record noted complaints of dizziness
for the past three weeks.  The August 2006 VA ear, nose, and
throat specialists opinion noted that the "symptoms
described by the claimant with regard to balance and vertigo
are vague."

As noted above, the veteran's SMRs are entirely negative for
complaints, diagnosis, or treatment of vertigo/equilibrium
problems.  Postservice medical records show complaints of
dizziness more than three decades after service.  Such
lengthy interval between service and the initial clinical
notation of the disability at issue postservice is, of
itself, a factor for consideration against a finding of
service connection.  See Maxson, supra.  Furthermore, there
is no competent (medical) evidence that relates any current
vertigo/equilibrium problems to service.

The statements and contentions of the veteran describing the
symptoms of pertinent disability are competent evidence to
the extent that he can describe what he experienced during
and subsequent to service.  Espiritu, supra.  However, his
assertions that there is a nexus between current disabilities
and service are not competent evidence.  As a layperson, he
lacks the training/expertise to establish medical nexus by
his own unsupported opinions.  Id.

Without any competent or objective evidence that the
veteran's current vertigo/dizziness complaints were
manifested in service and with no competent evidence of a
nexus between such disorder and the veteran's military
service, service connection for vertigo is not warranted.
See Hickson, 12 Vet. App. at 253.  The doctrine of resolving
reasonable doubt in the veteran's favor does not apply, as
the preponderance of the evidence is against the claim.

III.  Increased Rating Claims

Disability ratings are determined by the application of a
schedule of ratings, which is based on the average impairment
of earning capacity. Individual disabilities are assigned
separate diagnostic codes.  38 U.S.C.A. � 1155; 38 C.F.R. �
4.1.  Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating.  Otherwise, the lower
rating will be assigned.  38 C.F.R. � 4.7.  At the time of an
initial rating, separate, or staged, ratings can be assigned
for separate periods of time based on the facts found.
Fenderson v. West, 12 Vet. App. 119 (1999).

PTSD

The June 2003 rating decision on appeal granted service
connection for PTSD and assigned a noncompensable rating from
April 19, 2002.  The veteran disagreed with the initial
rating.  A March 2004 rating decision increased the rating to
10 percent, also from April 19, 2002.  A May 2006 rating
decision increased the rating to 50 percent, from January 17,
2006.  The veteran disagreed with the effective date of that
rating.  Subsequently, a November 2006 rating decision
assigned an effective date of April 19, 2002, for the 50
percent rating.  (A temporary 100 percent rating based on
hospitalization was also assigned from May 29, 2002, to July
31, 2002.)  The issue before the Board remains whether a
schedular rating in excess of 50 percent is warranted at any
time since April 19, 2002.

PTSD is rated under the general formula for rating mental
disorders, which provides a 100 percent rating where there is
total occupational and social impairment due to such symptoms
as: gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name.

A 70 percent rating is warranted for PTSD where there is
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships.

The current 50 percent rating is warranted for PTSD when
there is occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships.
38 C.F.R. � 4.130, Code 9411.

When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, length of remissions, and the veteran's capacity
for adjustment during periods of remission.  38 C.F.R. �
4.126(a).  The rating agency shall assign an evaluation based
on all the evidence of record that bears on occupational and
social impairment rather than solely on the examiner's
assessment of the level of disability at the moment of the
examination.  Id.  However, when evaluating the level of
disability from a mental disorder, the rating agency will
consider the extent of social impairment, but shall not
assign an evaluation on the basis of social impairment.  38
C.F.R. � 4.126(b).

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

The veteran was evaluated in August 2002, after his discharge
from VA inpatient treatment.  He reported symptoms of
hyperarousal, hypervigilance, nightmares, avoidance, and
intrusive thoughts.  He indicated that he had been sexually
abused at the age of 10, and was further traumatized in
Vietnam.  The examiner noted no history of violence.  The
veteran reported that he lived by himself in a trailer.  He
did odd jobs under the table, mostly carpentry.  His ex-wife
and son were in the area and were supportive.  He and his ex-
wife remained friends, and sometimes she brought him food.
On examination, the veteran was clean and neat.  He endorsed
depression and anxiety.  His affect was nervous.  Thought
process was sequential and logical.  He reported that he
heard the voice of a woman screaming both inside and outside
his head all the time.  He denied suicidal or homicidal plan
or intent.  He was oriented in all four spheres.  His
concentration was good and memory intact.  Judgment and
insight were fair.

A February 2003 evaluation noted the veteran had not had any
serious problems getting along with anyone in the past 30
days and had not experienced any serious family or social
problems, or serious thoughts of suicide, during that period.

On VA psychiatric examination in January 2006, the veteran
reported nightmares and insomnia on a nightly basis.  He
reported high anxiety, extreme irritability, angry
overreactions, panic attacks, and very low frustration
tolerance.  He indicated that he would frequently isolate
himself to keep himself from exploding toward others.  On
examination, orientation was within normal limits.
Appearance and hygiene were appropriate.  Depressed mood and
severe anxiety and agitation were present; his anxiety,
panic, and irritability affect his ability to function
independently and effectively.  Communication was within
normal limits.  There were no delusions, by history or
observed.  Hallucination history was noted, but no
hallucination symptoms were observed.  Thought processes were
appropriate.  Judgment was impaired.  There was mild memory
impairment.  There was no suicidal or homicidal ideation.
The examiner noted that the veteran occasionally became so
frustrated that he stopped working on things and threw away
something he needed.  He could only work by himself due to
frequent panic attacks and his inability to tolerate stress.
He had difficulty understanding complex commands.  The
veteran did not pose a persistent danger to himself or
others.

On close review of the record, the Board finds no indication
that symptoms of the veteran's PTSD have been of (or have
approximated) such nature and gravity as to warrant a 70
percent schedular rating at any time since April 2002.
Occupational and social impairment with deficiencies in most
areas is not shown.  The veteran has specifically denied
suicidal ideation.  He has not exhibited obsessional rituals.
His speech has been logical.  While he describes panic
attacks occurring almost daily, episodes of near-continuous
panic or depression affecting ability to function
independently are not shown; the veteran is independent as to
daily living concerns.  He does not exhibit impaired impulse
control, spatial disorientation, or neglect of personal
appearance and hygiene (he is described as neat and clean).
He appears to adapt to stressful circumstances (he maintains
friendly contact with his ex-wife and son).  No other
symptoms of a nature and gravity commensurate with the
criteria for a 70 percent rating for PTSD are shown.  In
short, the symptoms shown do not satisfy, or approximate, the
criteria for the next higher, 70 percent, rating at any time
during the appeal period.  See Fenderson, supra.

Emphysema

The June 2003 rating decision on appeal granted service
connection for emphysema and assigned a 10 percent rating
from December 6, 2002.  The veteran disagreed with the
initial rating.

According to the applicable criteria, the current 10 percent
rating for emphysema is warranted when the FEV1 is 71 to 80
percent predicted, or; FEV1/FVC is 71 to 80 percent, or; DLCO
(SB) of 66 to 80 percent predicted.  The next highest, 30
percent rating, is warranted when the FEV1 is 56 to 70
percent predicted, or; FEV1/FVC is 56 to 70 percent, or; DLCO
(SB) of 56 to 65 percent predicted.  See 38 C.F.R. Part 4, DC
6603.

VA amended the Rating Schedule concerning respiratory
conditions, effective from October 6, 2006.  VA added
provisions that clarify the use of pulmonary function tests
(PFTs) in evaluating respiratory conditions.  A new paragraph
(d) to 38 C.F.R. � 4.96, titled "Special provisions for the
application of evaluation criteria for diagnostic codes 6600,
6603, 6604, 6825-6833, and 6840-6845" has seven provisions,
which state:

1.  PFTs are required to evaluate respiratory conditions
except: i. when the results of a maximum exercise capacity
test are of record and are 20 ml/kg/min or less. If a maximum
exercise capacity test is not of record, evaluation should be
based on alternative criteria. ii. when pulmonary
hypertension (documented by an echocardiogram or cardiac
catheterization), cor pulmonale, or right ventricular
hypertrophy has been diagnosed. iii. when there have been one
or more episodes of acute respiratory failure. iv. when
outpatient oxygen therapy is required.

2.  If the Diffusion Capacity of the Lung for Carbon Monoxide
by the Single Breath Method (DLCO (SB)) test is not of
record, evaluation should be based on alternative criteria as
long as the examiner states why the DLCO (SB) test would not
be useful or valid in a particular case.

3.  When the PFTs are not consistent with clinical findings,
evaluation should be based on the PFTs unless the examiner
states why they are not a valid indication of respiratory
functional impairment in a particular case.

4.  Post-bronchodilator studies are required when PFTs are
done for disability evaluation purposes except when the
results of pre-bronchodilator PFTs are normal or when the
examiner determines that post-bronchodilator studies should
not be done and states why.

5.  When evaluating based on PFTs, post- bronchodilator
results are to be used unless the post-bronchodilator results
were poorer than the pre-bronchodilator results. In those
cases, the pre-bronchodilator values should be used for
rating purposes.

6.  When the results of different PFTs (FEV-1, FVC, etc.) are
disparate (so that the level of evaluation would differ
depending on which test result is used), the test result that
the examiner states most accurately reflects the level of
disability should be used for evaluation.

7.  If the FEV-1 and the FVC are both greater than 100
percent, a compensable evaluation based on a decreased FEV-
1/FVC ratio should not be assigned.

Pulmonary function testing (PFT) results in February 2003
were described as "virtually normal."  PFT in May 2003
noted FEV1 of 146 percent predicted; FEV1/FVC of 85 percent;
and DLCO (SB) of 67 percent predicted.

PFT in January 2006 noted FEV1 of 96 percent predicted and
FEV1/FVC of 92 percent.  The examiner noted that DLCO "was
not done as the PFT results were sufficient to evaluate the
pulmonary status of the claimant."  The examiner stated that
the veteran provided a good effort and there was no
discrepancy between the PFT findings and the clinical
examination.

On careful review of the evidence of record, the Board finds
that a rating in excess of 10 percent is not warranted for
any period of time since December 2002.  There is no
suggestion that the FEV1 is (or has been) 56 to 70 percent
predicted, or  FEV-1/FVC is (or has been) 56 to 70 percent,
or that DLCO (SB) is or was 56 to 65 percent predicted as is
required for a 30 percent rating (See 38 C.F.R. � 4.97, Code
6603).  Therefore, the preponderance of the evidence is
against the veteran's claim for an initial rating in excess
of 10 percent for emphysema.  See Fenderson, supra.

ORDER

Service connection for residuals of right knee injury is
denied.

Service connection for residuals of left knee injury is
denied.

Service connection for residuals of right ankle injury is
denied.

Service connection for residuals of left ankle injury is
denied.

Service connection for hepatitis is denied.

Service connection for residuals of head injury is denied.

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.

Service connection for cervical spine disability is denied.

Service connection for lumbar spine disability is denied.

Service connection for disability manifested by memory loss
is denied.

Service connection for disability manifested by loss of grip
strength, right upper extremity is denied.

Service connection for disability manifested by loss of grip
strength, left upper extremity is denied.

Service connection for vertigo is denied.

A rating in excess of 50 percent for PTSD is denied.

A rating in excess of 10 percent for emphysema is denied.

REMAND

One of the matters the Board must address is which issue or
issues are properly before the Board.  An appeal to the Board
is initiated by a notice of disagreement (NOD), and completed
by a substantive appeal after an SOC is furnished to the
veteran.  In essence, the following sequence is required:
There must be a decision by the RO, the veteran must express
timely disagreement with the decision, VA must respond by
issuing a SOC, and finally the veteran, after receiving the
SOC, must complete the process by stating his argument in a
timely-filed substantive appeal.  See 38 U.S.C.A. � 7105;
38 C.F.R. �� 20.200, 20.201, 20.202, and 20.203.

In a September 2006 rating decision, the RO denied TDIU.  The
veteran's representative submitted an informal hearing
presentation in March 2007 addressing the issues on appeal.
That document listed the issue of TDIU and included argument
referencing that issue.  Hence, it may reasonably be
construed as a (timely) NOD with the denial of TDIU.  No
subsequent SOC has been issued.  The Court has held that in
such circumstances the matter must be remanded to the RO for
issuance of a SOC.  Manlincon v. West, 12 Vet. App. 238
(1999).  In this regard, it is noteworthy that the claim is
not before the Board at this time and will only be before the
Board if the veteran files a timely substantive appeal.

Accordingly, the case is REMANDED for the following:

The RO should issue an appropriate SOC in
the matter of entitlement to TDIU.  The
veteran must be advised of the time limit
for filing a substantive appeal, and given
the opportunity to respond.  If he timely
perfects an appeal in this matter, it
should be returned to the Board for
further appellate consideration.

The purpose of this remand is to fulfill the requirements of
the Court in Manlincon.  The veteran has the right to submit
additional evidence and argument on the matter the Board has
remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner.

____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: MARK D HINDIN

disposition: dismissed

text: The appeal is dismissed.

text:
Citation Nr: 0726000
Decision Date: 08/21/07    Archive Date: 08/29/07

DOCKET NO.  04-07 989	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina

THE ISSUES

1.  Whether new and material evidence has been submitted
sufficient to reopen a claim of entitlement to service
connection for residuals of a stroke, to include as secondary
to post-traumatic stress disorder (PTSD).

2.  Whether new and material evidence has been submitted
sufficient to reopen a claim of entitlement to service
connection for chronic real failure, to include as secondary
to post-traumatic stress disorder (PTSD).

3.  Entitlement to an increased evaluation for polycystic
ovarian disease with postoperative laparoscopy, currently
evaluated as 30 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

M. Donovan, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1980 to May
1982.

This case comes before the Board of Veterans' Appeals (Board)
on appeal from a March 2003 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, which, in pertinent part,
granted an increased evaluation of 30 percent for post-
operative residuals of laparoscopy for questionable ovarian
cyst, and found that new and material evidence had not been
submitted sufficient to reopen claims of entitlement to
service connection for migraines, chronic renal failure,
stomach ulcers, and residuals of a stroke.

In June 2007 the RO granted service connection for migraines
and stomach ulcers.  This grant constitutes a full grant of
the benefit sought in regard to those issues.

In the June 2007 supplemental statement of the case (SOC) the
RO found that new and material evidence had been submitted
regarding the claims for service connection for residuals of
a stroke and chronic renal failure and denied service
connection on the merits.

Where the claim in question has been finally adjudicated at
the RO level and not appealed, the statutes make clear that
the Board has a jurisdictional responsibility to consider
whether it was proper for a claim to be reopened, regardless
of whether the previous action denying the claim was appealed
to the Board.  Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir.
2001).  Thus, despite the fact that the RO has discussed the
merits of the underlying service connection claims during the
appeal, the Board must make independent determinations as to
whether new and material evidence has been presented before
reaching the merits of the service connection claims, and,
so, the issues on appeal have been characterized as indicated
on the first page of this decision.

FINDING OF FACT

On July 31, 2007, prior to the promulgation of a decision in
the appeal, the Board received a statement from the veteran
requesting withdrawal of her appeal.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the veteran have
been met.  38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. � 20.204
(2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. � 7105, the Board may dismiss any appeal
that fails to allege specific error of fact or law in the
determination being appealed.  An appeal may be withdrawn in
writing at any time before the Board promulgates a decision.
Withdrawal may be made only by the appellant or by his or her
authorized representative.  38 C.F.R. � 20.204 (2006).

In the July 2007 SSOC response, the veteran indicated that
she was satisfied with the decision regarding her appeal and
wished to withdraw her appeal.  As the veteran has withdrawn
her current appeal, there remain no allegations of errors of
fact or law for appellate consideration.  Accordingly, the
Board does not have jurisdiction to review the appeal and it
is dismissed.

ORDER

The appeal is dismissed.

____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs