judge_norm: RICHARD D TURANO

text:
Citation NR: 9705000
Decision Date: 02/13/97		Archive Date: 02/19/97
DOCKET NO.  93-28 497	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been submitted
sufficient to reopen the claim of entitlement to service
connection for a right hand disability.

REPRESENTATION

Veteran represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Sharon M. Peace, Associate Counsel

INTRODUCTION

The veteran had active military service from January 8, 1974
to January 31, 1974, and from June 1979 to September 1981.

In September 1981, the veteran submitted a claim for
disability benefits alleging entitlement to service
connection for a right hand disability.  The RO denied the
veteran�s claim.  Notification of the adverse decision and of
the veteran�s appellate rights were sent in a letter dated in
October 1981.  An appeal was not submitted, and as a result,
the decision became final.  In a decision by the Board of
Veterans Appeals (Board) dated in January 1984, service
connection was denied for a right arm disorder.  Based on the
specific assertions made by and on behalf of the veteran, the
claim at issue relates solely to the veteran�s right hand.

The veteran sought to reopen his claim in February 1992.  A
VA examination was performed in June 1992.  The RO determined
in an October 1992 rating action that new and material
evidence had not been submitted to reopen the veteran�s
service connection claim.  The veteran appealed this rating
decision.

This matter came before the Board on appeal from an October
1992 rating decision of the New York, New York, Regional
Office (RO) of the Department of Veterans Affairs (VA).  A
notice of disagreement was received in November 1992.  The
statement of the case was issued in March 1993.  A
substantive appeal was submitted in March 1993.  The veteran
provided testimony before a hearing officer at the RO in
April 1993.

In January 1996, the matter was remanded by the Board to
obtain additional medical evidence and to provide the veteran
with a VA examination.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran and his representative contend, in substance,
that new and material evidence has been submitted sufficient
to reopen the claim of entitlement to service connection for
a right hand disability.  Specifically, the veteran alleges
that his right hand disability was aggravated by his military
service, and has continued to deteriorate over the years.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that no new and material evidence
has been submitted sufficient to reopen the claim of
entitlement to service connection for a right hand
disability.

FINDINGS OF FACT

1.  The veteran�s claim of entitlement to service connection
for a right hand disability was denied in a rating decision
issued in September 1981, and the veteran was notified of the
denial in October 1981.  He did not appeal.

2.  Evidence submitted since the September 1981 rating
decision includes the following:  A February 1992 VA physical
therapy report; 1992, 1993, and 1996 VA neurological and
orthopedic examination reports; and hearing testimony.

3.  Evidence submitted since the September 1981 rating
decision is cumulative of evidence previously of record or is
not probative of the underlying issue.

CONCLUSIONS OF LAW

1.  The September 1981 rating decision is final  38 U.S.C.A.
� 7105 (West 1991); 38 C.F.R. � 3.104(a) (1995).

2.  Evidence submitted since the September 1981 rating
decision is not new and material.  38 U.S.C.A. � 5108 (West
1991); 38 C.F.R. �� 3.156, 3.160(d), 20.302(a)  (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  FACTUAL BACKGROUND.

It must be noted that the induction examination is not
associated with the claims folder, but the service medical
records document that the veteran underwent an amputation of
the right fifth finger prior to his admission into the
military.

Sick call reports, dated in May 1980, documented that the
veteran was right handed.  He worked as a cook and was seen
for complaints of pain, cramping, and tenderness at the right
5th interphalangeal joint from heavy lifting.  Examination of
the right hand revealed decreased strength and grip.  He had
diminished sensation along the ulnar and palmar aspects.  The
veteran lacked 10 degrees of extension.  In addition, it was
observed that the veteran had tenderness along the right
upper trapezius.  It was the examiner�s assessment that there
was paresthesia of the right hand.

The service medical records indicate that the veteran
continued to complain of pain on extension and a decrease in
strength in his right hand.  He attempted to obtain a
permanent physical profile so that he could change his
military occupation.  An x-ray examination was performed in
April 1981 to evaluate his condition. The report related that
there was status post amputation of the right fifth digit
with only the base of the fifth metacarpal remaining.  No
other abnormalities were identified.  An orthopedic
evaluation was performed in July 1981 where the veteran
indicated that he was unable to flex or extend his right ring
finger without severe pain.  Active range of motion in the
right ring finger was 0 to 75 degrees in the
metacarpophalangeal, 0 to 85 degrees in the proximal
interphalangeal, and 0 to 50 degrees in the distal
interphalangeal.  Passive range of motion in the right ring
finger was within normal limits.  It was the examiner�s
impression that there was pseudo non-functioning of the right
hand.  The examiner noted that during the examination,
passive range of motion was complete.

The record reflects that the veteran was medically discharged
from the military in September 1981.  The discharge
examination noted the amputation of the right fifth finger.
No other musculoskeletal defects or abnormalities were noted.

In September 1981, a claim for disability benefits was
received.  The RO concluded that the right hand impairment
was a pre-existing condition and there was no evidence that
it was aggravated in service.  The veteran was notified of
the adverse decision and his appellate right in October 1981.
He did not appeal and the decision became final.

In a statement in support of his claim, the veteran sought to
reopen his claim for service connection for a right hand
disability in February 1992.  The veteran claimed that his
right ring finger was in a splint, and he had been receiving
treatment for the condition since August 1991.

A VA physical therapy report, associated with the claims
folder in July 1992, showed that the veteran was treated for
his right finger impairment in February 1992.  The report
related that the veteran had difficulty in flexion and
extension of the right 4th finger.  He had poor voluntary
control with a slight flexion deformity at the distal
interphalangeal, metacarpophalangeal, and proximal
interphalangeal joints.  Stretching exercises were advised,
and the finger was placed in a finger extension splint.

The veteran was examined by the VA in July 1992.  It was
noted that the veteran�s right finger was amputated prior to
his entrance into the military.  The veteran appeared with a
plastic volar splint on the right 4th finger.  On its
removal, the veteran complained of marked pain to touch in
the finger.  The veteran alleged that he was unable to flex
the finger fully, and the tip of the finger came within 2
inches of the palm.  There was a 3 inch well-healed adherent
scar extending on the ulnar side of the right hand and ulnar
region of the 4th finger.  It was noted that the scar was
sensitive.  Further, the examination report related that the
veteran claimed that he had hypalgesia over the entire ulnar
half and the 4th finger of the right hand.  Ranges of motion
were recorded as 35 degrees in a fixed position in the distal
interphalangeal joint was fixed at 35 degrees, 0 to 40
degrees in the metacarpophalangeal joint, and 12 to 65
degrees in the proximal interphalangeal joint.  There was
limitation of motion, but there was no inflammatory changes
or swelling observed.  The veteran was able to grasp objects
with the 2nd and 3rd fingers.  The power of the grasp was
good.  An x-ray examination revealed that the fifth digit
showed amputation at the level of the proximal aspect of the
metacarpal.  Two small bony fragments were seen at the base
of the first distal phalanx, and at last one represented an
old chip fracture.  No acute fracture was seen.  Diagnoses of
amputation of the right 5th finger, and residual injury of
the 4th finger distal interphalangeal joint were given.  No
functional impairment of the metacarpophalangeal and proximal
interphalangeal joints of the right 4th finger were observed.

The RO, in an October 1992 rating decision, determined that
no new and material evidence was presented to reopen the
veteran�s service connection claim.  The veteran appealed
this rating decision.

In the April 1993 personal hearing, the veteran testified
that his right 5th finger was amputated in 1974.  He claimed
that he worked at a steel plant before entering the military,
and he did not have any problems with his right hand.
However, he began to experience pain and cramping in his hand
while performing his tasks as a cook in the Army.  The
veteran testified that he received physical therapy on his
right hand with little success and was periodically placed on
a temporary physical profile.  It was the veteran�s testimony
that the Army medical staff were unable to do anything for
his right hand impairment.  They merely provided him with
pain medication.  The veteran testified that he had not been
employed since 1991 when he worked as a truck driver.  He
claimed that he went to three or four other positions, but
was not hired because of his hand disability.

A VA examination was conducted in June 1993.  The objective
findings were that there was loss of the right little finger
and part of the 5th metatarsal joint.  The right
metacarpophalangeal joint flexed only to 65 degrees.  The
proximal interphalangeal joint was fixed at 60 degrees
flexion and the distal interphalangeal joint was fixed at 30
degrees of flexion.  There was a long tender surgical scar
along the medial aspect of the hand.  The functional defect
of the veteran�s right hand impairment was that the 4th
finger could not oppose with the thumb, and was 3 cm. short
of touching the palm.  The veteran�s ability to grasp was
very poor.  It was observed that he could only use his thumb,
index, and middle fingers.  Dexterity was also poor.  The
medial side of the hand and the 4th finger were numb.  The
veteran was diagnosed with status post amputation of the 5th
finger and part of the metatarsal with pain at the amputation
site.  He was referred for a neurological evaluation.  The VA
neurological examination, performed in June 1993, diagnosed
the veteran with post-traumatic soft tissue and nerve damage
to the right hand.

In September 1996, the veteran was examined by the VA.  The
veteran had pain and decreased motion in the right 4th digit.
Objectively, there was a deformity in the right 4th digit,
and there was very little motion in the finger.  The proximal
interphalangeal joint contracted at 30 degrees flexion and
the distal interphalangeal joint contracted at 60 degrees
flexion.  It was noted that the 4th finger could not touch
the thumb or palm.  The grasping ability was moderately
impaired.  There was weakness of grip and a slight loss of
dexterity.  A June 1996 x-ray examination revealed status
post amputation of the 5th finger at the proximal metacarpal
shaft, and a spur at the dorsal aspect of the distal phalanx
right thumb.  Diagnosis of spur at the dorsal aspect distal
phalanx right thumb, amputation of the 5th finger, and
flexion contracture deformities of the 4th finger were
recorded.  The result of the VA neurological examination
showed decreased flexion in the right 4th digit of the
interphalangeal joint and inability to extend the 4th digit
secondary to contracture in a partial flexed position.  There
were decreased touch and pin prick at the proximal and dorsal
aspects of the right 4th digit.  A diagnosis of post
traumatic mild sensory deficit and pain at the right 4th
digit with flexion contracture.  The veteran�s disability was
viewed as largely musculoskeletal and not neurological.  In
addition, the examiner opined that the original deficit
secondary to the amputation of the 5th digit might have been
aggravated while lifting objects in the service resulting in
the problems with the right 4th digit.

II.  LEGAL ANALYSIS.

A decision of a duly-constituted rating agency or other
agency of original jurisdiction is final and binding as to
all field offices of the Department as to written conclusions
based on evidence on file at the time the claimant is
notified of the decision.  38 C.F.R. � 3.104(a) (1995).  Such
a decision is not subject to revision on the same factual
basis except by a duly constituted appellate authority.  Id.
A claimant has one year from notification of a decision of
the agency of original jurisdiction to file a notice of
disagreement (NOD) with the decision, and the decision
becomes final if no NOD is filed within that time.
38 U.S.C.A. � 7105(b) and (c) (West 1991); 38 C.F.R.
�� 3.160(d), 20.302(a) (1995).

In order to reopen a claim which has been previously finally
denied, the claimant must present new and material evidence.
38 U.S.C.A. � 5108 (West 1991).  The United States Court of
Veterans Appeals (Court) has held that, if there is new and
material evidence to reopen a claim, there is a well-grounded
claim.  Gobber v. Derwinski, 2 Vet.App. 470 (1992).  When
presented with a claim to reopen a previously finally denied
claim, a two-step analysis must be performed by the
Department.  Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).
First, it must be determined whether the evidence submitted
by the claimant is new and material.  The Court has recently
expanded upon the first step of the Manio analysis,
explaining that it requires answers to three questions:  1)
Is the newly presented evidence �new� (not of record at the
time of the final disallowance of the claim and not merely
cumulative of other evidence that was then of record)?  2)
Is it probative of each issue which was a specified basis for
the last final disallowance?  3)  If the answer to the first
two questions is in the affirmative, is there a reasonable
possibility that, when considered in light of all the
evidence of record, the outcome of the claim on the merits
would be different?  See Evans v. Brown, No. 93-1220 (U.S.
Vet. App. Aug. 1, 1996), slip op. at 13,14.  If the evidence
passes those three tests, then the second step of the Manio
analysis is applied, and the new evidence must be reviewed in
the context of the old to determine whether the prior
disposition should be altered.  Manio, 1 Vet.App. at 145.

New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim.  38 C.F.R. � 3.156(a) (1995).
New evidence must be more than merely cumulative, and
material evidence "is that which is relevant to and probative
of the issue at hand and which (assuming its credibility)
must be of sufficient weight or significance that there is a
reasonable possibility that the new evidence, when viewed in
the context of all the evidence, both new and old, would
change the outcome."  Sklar v. Brown, 5 Vet.App. 140, 145
(1993).  This new-and-material-evidence threshold in the
context of a claim to reopen is a higher threshold than a
claimant is required to cross in order to state a well-
grounded original claim.  Robinette v. Brown, 8 Vet.App. 69
(1995).

In this case, the veteran has submitted evidence since the
final 1981 denial of his original claim.  This evidence
consists of a February 1991 VA physical therapy report; and
1992, 1993, and 1996 VA neurological and orthopedic
examinations.  The veteran has also testified at a personal
hearing at the RO.

In order to be considered new and material, the evidence
must, as noted above, bear directly and substantially upon
the specific matter under consideration, in this case whether
the veteran's right hand disorder was aggravated by military
service.  38 U.S.C.A. �� 1110, 1131 (West 1991).  It is clear
from the record, and undisputed by the veteran, that he
underwent an amputation of the right fifth finger prior to
entrance into military service.  A veteran is considered to
have been in sound condition when examined, accepted, and
enrolled for service, except as to defects, infirmities, or
disorders noted at entrance into service, or where clear and
unmistakable (obvious or manifest) evidence demonstrates that
an injury or disease existed prior thereto, and only such
conditions as are recorded in examination reports are to be
considered as noted.  38 C.F.R. � 3.304(b).  A preexisting
injury or disease will be considered to have been aggravated
by active military, naval, or air service where there is an
increase in disability during such service, unless there is a
specific finding that the increase in disability is due to
the natural progress of the disease.  38 U.S.C.A. � 1153; 38
C.F.R. � 3.306(a).

The VA treatment record and examination reports submitted by
the veteran showing residuals of the status post amputation
of the right 5th digit are new only in the sense that they
had not previously been before the RO.  A review of the post
service records showed a deterioration in the flexion and
extension of the right 4th finger as well as a decrease in
the veteran�s grasping ability, but the evidence does not
corroborate the veteran�s claim that his condition was
worsened by his military service.  The 1996 VA examination
report indicates that the veteran�s right hand disability
might have been caused by heavy lifting in service, however,
that the examiner failed to provide a basis for his
conclusion.  The Board finds this conclusion to be
speculative and an insufficient basis to reopen the veteran�s
service connection claim.  Even when presumed credible, as is
required at this stage of the analysis, this vague medical
conclusion, based in part on the veteran�s reported history,
is of little probative value.  Generally, when a medical
opinion relies at least partially on the veteran's rendition
of his medical history, the Board is not bound to accept the
medical conclusion, as it has no greater probative value than
the facts alleged by the veteran.  Swann v. Brown, 5 Vet.App.
229, 233 (1993).

Finally, the Board notes that in the April 1993 hearing, the
veteran�s testimony basically reiterated his previous
contention.  These are to the effect that his preservice
right hand impairment was aggravated in service while working
as a cook.  While an individual may be able to provide
accurate statements regarding firsthand knowledge of events
or observations, a lay person may not offer evidence that
requires medical knowledge.  Espiritu v. Derwinski, 2
Vet.App. 492, 494 (1992).

In sum, the Board concludes that the evidence submitted,
which consists of recent testimony and VA medical reports
dated more than ten years after the veteran�s service
discharge, fail to demonstrate that an increase in disability
of the right hand occurred as a result of service.
Accordingly, upon review of the evidence submitted since the
September 1981 decision, it must be concluded that such
evidence does not constitute new and material evidence
because it is cumulative or is not material to the issue on
appeal.

ORDER

The veteran having failed to submit new and material evidence
to reopen his claim, the appeal is denied.

	RICHARD D. TURANO
	Acting Member, Board of Veterans' Appeals

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

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

- 2 -


series: legacy

judge_norm: DEREK R BROWN

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text:
Citation NR: 9707000
Decision Date: 02/28/97		Archive Date: 03/05/97
DOCKET NO.  96-40 869	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana

THE ISSUE

Entitlement to an increased (compensable) evaluation for
defective hearing of the left ear.

ATTORNEY FOR THE BOARD

Nicholas M. Auricchio, Associate Counsel

INTRODUCTION

The veteran served on essentially continuous active duty from
July 1937 to November 1967.

This matter is currently before the Board of Veterans�
Appeals (Board) on appeal from a July 1996 rating decision of
the Indianapolis, Indiana Regional Office (RO) which granted
service connection and assigned a noncompensable evaluation
for the veteran�s defective hearing of the left ear.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that the RO was incorrect in
not granting the benefit sought on appeal.  He asserts that
he is entitled to an increased (compensable) evaluation for
his defective hearing of the left ear, as this disability has
increased in severity.

DECISION OF THE BOARD

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

FINDING OF FACT

The veteran�s service-connected defective hearing of the left
ear is characterized by a level I hearing impairment in the
left ear.

CONCLUSION OF LAW

The schedular criteria for an increased (compensable)
evaluation for defective hearing of the left ear have not
been met.  38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R.
�� 4.85-4.87, Diagnostic Code 6100 (1996).

REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board finds that the veteran's
claim is "well grounded" within the meaning of 38 U.S.C.A. �
5107(a).  See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990);
Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).  That is, the
Board finds that the veteran has presented a claim which is
not implausible when his contentions and the evidence of
record is viewed in the light most favorable to that claim.
The Board is also satisfied that all relevant facts have been
properly and sufficiently developed.

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 (1996).  When, after careful
consideration of all the evidence of record, a reasonable
doubt arises regarding the degree of disability, such doubt
will be resolved in favor of the claimant.  38 C.F.R. ��
3.102, 4.3 (1996).

Disability evaluations are determined by the application of a
Schedule for Rating Disabilities which is based on average
impairment of earning capacity.  Separate diagnostic codes
identify the various disabilities.  38 U.S.C.A. � 1155; 38
C.F.R. � 4.1 (1996).  Where entitlement to service connection
has been established and an increase in the disability rating
is at issue, the present level of disability is of primary
concern.  See Francisco v. Brown, 7 Vet.App. 55, 58 (1994).

Evaluations of hearing loss range from noncompensable to 100
percent based on organic impairment of hearing acuity as
measured by the results of speech discrimination tests
together with the average hearing threshold levels as
measured by pure tone audiometry tests in the frequencies
500, 1,000, 2,000, 3,000, and 4,000 cycles per second.  In
order to evaluate the degree of disability for service
connected hearing loss, the rating schedule establishes
eleven (11) auditory acuity levels, designated from level I
for essentially normal acuity through level XI for profound
deafness.  38 C.F.R. � 4.85, Diagnostic Codes 6100-6110
(1996).  The assignment of disability ratings for hearing
impairment is derived by a mechanical application of the
rating schedule to the numeric designations assigned after
audiometric evaluations are rendered.  Lendenmann v.
Principi, 3 Vet.App. 345, 349 (1992).

In situations where service connection has been granted only
for defective hearing involving one ear, and the appellant
does not have total deafness in both ears, the hearing acuity
of the nonservice-connected ear is considered to be normal.
In such situations, a maximum 10 percent evaluation is
assignable where hearing in the service-connected ear is at
level X or XI.  38 U.S.C.A. � 1160 (West 1991); 38 C.F.R. �
4.85 Codes 6100 to 6101.

By a July 1996 rating decision, the veteran was granted
service connection, at the noncompensable level, for
defective hearing of the left ear as secondary to the
service-connected bilateral perforated tympanic membrane
disability.

The veteran was afforded a VA audiometric examination in
April 1996.  His pure tone thresholds, in decibels, were
reported as follows:

HERTZ

500
1000
2000
3000
4000

RIGHT
10
10
5
15
20

LEFT
35
20
20
60
65

Pure tone threshold levels averaged 12 decibels for the right
ear and 41 decibels for the left ear.  Speech audiometry
revealed speech recognition ability of 100 percent in the
right ear and 100 percent in the left ear.  These results are
consistent with a level I hearing impairment in the left ear.
As total deafness is not shown in both the service connected
and nonservice connected ears, and as the loss in the service
connected ear is not at either level X or XI, a non-
compensable disability rating under Diagnostic Code 6100 is
appropriate.  See 38 C.F.R. � 4.85.  Based on these
audiometric examination results, the RO, by the July 1996
rating decision, correctly assigned the non-compensable
disability rating.

The Board has considered all of the medical evidence and
testimony offered by the veteran in the light most favorable
to him.  The veteran, however, has simply not shown, by
competent medical evidence, that his defective hearing of the
left ear has increased to a compensable level under the
requirements of the Diagnostic Code.  While the veteran
asserts that he feels his defective hearing has deteriorated,
his assertions alone are insufficient to substantiate his
claim for an increased evaluation.  See Espiritu v.
Derwinski, 2 Vet.App. 492, 495 (1992) (lay persons are not
competent to render medical opinions).  The mechanical
application of the veteran�s measured pure tone threshold
readings and speech recognition scores clearly support the
RO�s disability evaluation under DC 6100.  See Lendenmann, 3
Vet.App. at 349.  Moreover, the veteran has not offered any
competent evidence to refute the VA examiner�s findings with
respect to measured hearing acuity, to include those records
from Wright Patterson Medical Center.

Finally, in reaching this decision the Board considered the
doctrine of reasonable doubt, however, as the preponderance
of the evidence is against the appellant�s claim, the
doctrine is not for application.  Gilbert v. Derwinski, 1
Vet.App. 49 (1990).

ORDER

Entitlement to an increased (compensable) evaluation for
defective hearing of the left ear is denied.

	DEREK R. BROWN
	Member, Board of Veterans' Appeals

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

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


judge_norm: MICHAEL A PAPPAS

condition: prostate

condition: respiratory

disposition: remanded

condition: heart

text:
Citation NR: 9708000
Decision Date: 03/13/97		Archive Date: 03/25/97
DOCKET NO.  94-44 577	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines

THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for
anxiety and depressive reaction.

2.  Entitlement to service connection for a prostate
disorder.

3.  Entitlement to service connection for bronchial asthma.

4.  Entitlement to service connection for heart disease.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jeffrey J. Schueler, Associate Counsel

INTRODUCTION

The veteran served on active duty from December 1941 to
October 1942, and from July 1945 to May 1946.  He was a
prisoner of war (POW) of the Japanese government from April
1942 to October 1942.

This matter comes before the Board of Veterans� Appeals
(Board) on appeal from a June 1994 rating decision of the
Department of Veterans Affairs (VA) Manila, Philippines,
Regional Office (RO).  That determination denied the
veteran�s claims of entitlement to an evaluation in excess of
10 percent for anxiety and depressive reaction, and service
connection for a prostate disorder, bronchial asthma, and
heart disease.  The veteran perfected an appeal as to these
issues.

As to the issue of entitlement to service connection for
heart disease, the veteran filed a claim for service
connection for beriberi which was denied in an August 1985
rating action.  The RO reasoned that beriberi was not then
shown by the evidence of record.  Beriberi includes beriberi
heart disease and ischemic heart disease in a former POW who
had experienced localized edema during captivity.  38 C.F.R.
� 3.309(c).  The veteran did not appeal that determination,
which became final.

The veteran subsequently filed another claim for service
connection for heart disease.  In order to reopen a
previously denied claim, new and material evidence must be
submitted.  See 38 C.F.R. � 3.156(a).  The RO, however,
rendered final decisions on the merits denying service
connection for a heart disorder in a June 1994 rating action,
for coronary artery disease in a June 1995 Hearing Officer�s
decision and a December 1995 rating action, and for ischemic
heart disease in an April 1996 rating action.

Despite the RO�s adjudication of the veteran�s claim on the
merits, the Board must properly look to whether new and
material evidence has been submitted.  In this case, the
record contains private and VA clinical records, not
associated with the claims file at the time of the August
1985 rating action, showing that the veteran currently has
heart disease.  This additional evidence is new and material,
and the claim is herein reopened.  See Manio v. Derwinski, 1
Vet.App. 140 (1991).  The reopened claim of entitlement to
service connection for heart disease, as well as the issue of
entitlement to an evaluation in excess of 10 percent for
anxiety and depressive reaction, will be addressed in the
Remand section of this decision.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he currently has a prostate
disorder and bronchial asthma that are related to active
service in World War II.  He asserts that these disorders are
directly attributable to his captivity as a POW of the
Japanese government in the Philippines.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claims for
service connection for a prostate disorder and bronchial
asthma are well grounded.

FINDINGS OF FACT

1.  No competent evidence has been submitted that links the
post-service findings of a prostate disorder to service.

2.  No competent evidence has been submitted that links the
post-service findings of bronchial asthma to service.

CONCLUSIONS OF LAW

1.  The claim for service connection for a prostate disorder
is not well grounded.  38 U.S.C.A. � 5107(a) (West 1991).

2.  The claim for service connection for bronchial asthma is
not well grounded.  38 U.S.C.A. � 5107(a) (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  Service
connection may also be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d).

The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence of a
well-grounded claim.  See 38 U.S.C.A. � 5107(a); Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990).  A well-grounded claim
is a plausible claim that is meritorious on its own or
capable of substantiation.  See Murphy, 1 Vet.App. at 81.  An
allegation of a disorder that is service connected is not
sufficient; the veteran must submit evidence in support of a
claim that would �justify a belief by a fair and impartial
individual that the claim is plausible.�  See 38 U.S.C.A.
� 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue
presented by the claim.  Grottveit v. Brown, 5 Vet.App. 91,
92-93 (1993).

In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence).  Caluza v. Brown, 7 Vet.App.
498 (1995).

Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim.  Grottveit,
5 Vet.App. at 93.  Lay assertions of medical causation cannot
constitute evidence to render a claim well grounded under 38
U.S.C.A. � 5107(a); if no cognizable evidence is submitted to
support a claim, the claim cannot be well grounded.  Id.

I.  Service Connection for a Prostate Disorder

As to the issue of entitlement to service connection for a
prostate disorder, the available service medical records are
completely silent as to any complaints, treatment, or
findings of a prostate disorder.  Service examination reports
prepared in July 1945 and in May 1946 reveal no findings
suggestive of a prostate disorder.

The February to April 1985 VA examination contains no
discussion of a prostate disorder.  The first documentation
discussing a current prostate disorder is a May to June 1988
VA hospitalization report noting a final diagnosis of
enlarged prostate.  Both private and VA clinical record dated
subsequently in the 1990�s show continued findings of an
enlarged prostate, prostate disease, chronic prostatitis, an
elevated prostate-specific antigen test measurement, a need
for prostate surgery, and prostate cancer.

The current evidence satisfies the requirement for medical
evidence of a current disorder.  See Caluza, 7 Vet.App. at
506.  However, none of this evidence offers a nexus between
the current prostate disorder and the veteran�s active
service.  The veteran separated from active service in May
1946, and the first clinical documentation of record of a
prostate disorder is dated in May 1988.  The available
clinical evidence fails to indicate a relationship between
the current disorder and active service that might cover this
42 year period of time.

The Board recognizes the veteran�s testimony at his January
1995 personal hearing that the first mention to him of
prostate problems was at a VA medical facility in 1988, and
his contentions that, essentially, his current prostate
disorder is related to service.  The record does not show,
however, that the veteran possesses the requisite skill,
expertise, education, experience, or knowledge necessary to
offer an opinion as to the etiology of his current prostate
disorder.  Espiritu v. Derwinski, 2 Vet.App. 492,494-95
(1992).  The lack of evidence of a nexus between the current
prostate disorder and active service renders this claim not
well grounded.  See Caluza, 7 Vet.App. at 506.  Because the
claim is not well grounded, the VA is under no duty to assist
the veteran in further development of the claim.  38 U.S.C.A.
� 5107(a); Murphy, 1 Vet.App. at 81.

II.  Service Connection for Bronchial Asthma

As to the issue of entitlement to service connection for
bronchial asthma, the available service medical records are
completely silent as to any complaints, treatment, or
findings of asthma or a respiratory disorder.  Service
examination reports prepared in July 1945 and in May 1946
reveal no findings suggestive of a respiratory disorder.

The February to April 1985 VA examination contains no
discussion of asthma or a respiratory disorder.  The first
documentation discussing a current respiratory disorder is a
July 1992 private treatment record noting an assessment of
bronchial asthma beginning with a notation that the veteran
was referred for follow-up of asthma.  Records available in
April 1992, immediately preceding the July 1992 findings,
show that the veteran�s lungs were described as clear.
Private treatment records prepared after July 1992 show
continued findings of bronchial asthma.

As with the claim concerning a prostate disorder, the current
evidence here satisfies the requirement for medical evidence
of a current asthmatic disorder.  However, the record does
not contain competent medical evidence of a nexus between the
currently shown asthmatic disorder and the veteran�s active
service.  The veteran separated from active service in May
1946, and the first clinical documentation of an asthmatic
disorder is dated in 1992.  During the intervening time
period, the clinical record is silent as to findings or
treatment suggestive of an asthmatic disorder, except for
references to a history of asthma prior to 1992.

The Board recognizes the veteran�s testimony at his January
1995 personal hearing that he started having respiratory
problems in approximately 1984, over 38 years after
separation from service, as well as his contention that the
asthmatic condition is related to active service.  As a
layperson, however, the veteran is unqualified to offer
evidence of a nexus between the current asthmatic disorder
and his service.  See Espiritu, 2 Vet.App. at 494-95.  The
lack of evidence of a nexus between the current bronchial
asthmatic disorder and active service renders this claim not
well grounded.  Because the claim is not well grounded, the
VA is under no duty to assist the veteran in further
development of the claim.  38 U.S.C.A. � 5107(a); Murphy,
1 Vet.App. at 81.

III.  Related Considerations

The veteran's representative contends that, subsequent to the
Court's decisions pertaining to these issues, the VA expanded
its duty to assist the veteran to include the situation in
which the veteran has not submitted a well-grounded claim.
In support, the representative cites to Veterans Benefits
Administration Manual M21-1, Part III, Chapter 1, 1.03(a),
and Part VI, Chapter 2, 2.10(f) (1996).  The veteran's
representative further contends that the M21-1 provisions
indicate that the claim must be fully developed prior to
determine whether the claim is well grounded, and that this
requirement is binding on the Board.

The Board, however, is required to follow the precedent
opinions of the United States Court of Veterans Appeals.
38 U.S.C.A. � 7269.  See also Tobler v. Derwinski,
2 Vet.App. 8, 14 (1991).  If the veteran fails to submit a
well-grounded claim, the VA is under no duty to assist him in
any further development of the claim.  38 U.S.C.A. � 5107(a).
See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).  See also
Grottveit 5 Vet.App. at 93; 38 C.F.R. � 3.159(a).

Subsequent to the revisions to the M21-1 manual, in Meyer v.
Brown, 9 Vet.App. 425 (1996), the Court held that the Board
is not required to remand a claim for additional development,
in accordance with 38 C.F.R. � 19.9, prior to determining
that a claim is not well-grounded.  The Board is not bound by
an administrative issuance that is in conflict with binding
judicial decisions, and the Court's holdings on the issue of
the VA's duty to assist in connection with the well-grounded
claim determination are quite clear.  See Bernard v Brown, 4
Vet.App. 384, 394. (1993); 38 C.F.R. � 19.5.  The Board has
determined, therefore, that, in the absence of a well-
grounded claim, the VA has no duty to assist the veteran in
developing his case.

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

In this case, the RO fulfilled its obligation under � 5103(a)
in the September 1994 statement of the case and in the June
1995, December 1995, and April 1996 supplemental statements
of the case in which the appellant was informed that the
reason for the denial of the claim was the lack of evidence
of a relationship between the claimed disorders and active
service.  Furthermore, by this decision, the Board is
informing the appellant of the evidence which is lacking and
that is necessary to make the claim well-grounded.

ORDER

Entitlement to service connection for a prostate disorder is
denied.

Entitlement to service connection for bronchial asthma is
denied.

REMAND

I.  Increased Rating for a Psychiatric Disability

The veteran seeks a compensable evaluation for anxiety and
depressive reaction under the criteria in Diagnostic Code
9400 for generalized anxiety disorder.  As noted by the
veteran�s representative, effective November 7, 1996, the
rating criteria for evaluating mental disorders was amended
to update the portion of the rating schedule that addresses
mental disorders to ensure that it uses current medical
terminology and unambiguous criteria.  See 61 Fed. Reg.
52695-52702 (1996) (to be codified at 38 C.F.R. Part 4,
� 4.125 to 4.130).  Where a law or regulation changes after a
claim has been filed or reopened, but before the
administrative or judicial appeal process has been concluded,
the version most favorable to an appellant applies unless
Congress provided otherwise or permitted the Secretary to do
otherwise and the Secretary does so.  Marcoux v. Brown, U.S.
Vet. App. No. 95-52, slip. op. at 5 (Dec. 19, 1996): Karnas
v. Derwinski, 1 Vet.App. 308 (1991).  Thus, the veteran�s
psychiatric disorder must be evaluated under both the old and
the new rating criteria to determine which version is most
favorable to the veteran.  Review of the rating actions
indicates that the evidence has not been evaluated under
amended criteria.

Consideration of factors wholly outside the rating criteria
would constitute error as a matter of law.  Massey, 7
Vet.App. at 207-08.  It must be kept in mind that the use of
manifestations not resulting from the disability in
establishing the evaluation for this disorder is to be
avoided.  38 C.F.R. � 4.14 (1996).

II.  Service Connection for Heart Disease

As noted in the Introduction section of this decision, the
previously denied claim for service connection for beriberi
is herein reopened and the claim of entitlement to service
connection for heart disease is before the Board for
appellate review.  Subsequent to the August 1985 rating
action, the veteran has received private and VA treatment for
a heart disorder variously characterized as coronary artery
disease, arteriosclerotic heart disease, and transient
ischemic attack.  The Board notes that beriberi heart disease
and ischemic heart disease are subject to the presumptive
provisions of 38 C.F.R. � 3.307(a)(5), whereas other
cardiovascular diseases are subject to the presumptive
provisions of 38 C.F.R. � 3.307(a)(3).  The record as it
currently stands does not provide accurate evidence as to the
nature of his current heart disease, and the veteran has not
been afforded a VA cardiovascular examination in order to
determine the nature and etiology of this heart disease.  In
order to render a more accurate adjudication, the claim is
remanded to the RO for further development, including a VA
cardiovascular examination.

III.  Action Paragraphs

To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:

1.  The RO should request that the
veteran supply the names and addresses of
health care providers and treatment
facilities who have rendered treatment to
the veteran for anxiety and depressive
reaction since April 1985, and for heart
disease since November 1994, and the
dates of such treatment.  After securing
any necessary releases, the RO should
obtain complete clinical records of such
treatment and associate them with the
claims folder.

2.  The RO should schedule the veteran
for a VA cardiovascular examination in
order to determine the nature and
etiology of his current heart disorder.
The RO must provide the examiner with the
claims file and request that the examiner
review the claims file prior to
examination of the veteran.  All
necessary tests and studies, including
electrocardiogram, blood pressure
measurements, and stress testing, if
appropriate, should be conducted in order
to identify and describe the
symptomatology attributable to the
veteran�s heart disease, if any.  The
report of examination should contain a
detailed account of all manifestations of
the cardiovascular disability(ies) found
to be present.  The examiner should
specifically comment on whether the
veteran�s current cardiovascular
disorder, if any, can be characterized as
either beriberi or ischemic heart
disease.  If there are found to be
cardiovascular disorder(s) other than
beriberi or ischemic heart disease, the
examiner should reconcile the diagnoses
and specify which symptoms are associated
with each of the disorder(s).  If certain
symptomatology cannot be disassociated
from one disorder or the other, it should
be so specified.

3.  The RO should schedule the veteran
for a VA psychiatric examination, in
order to determine the extent of the
service-connected anxiety and depressive
reaction.  All necessary tests and
studies, including appropriate
psychological studies (if determined to
be necessary by the psychiatrist), should
be conducted in order to identify and
describe the symptomatology attributable
to anxiety and depressive reaction.  The
report of examination should contain a
detailed account of all manifestations of
the disability(ies) found to be present.
If there are found to be psychiatric
disorder(s) other than anxiety and
depressive reaction, the examiner should
reconcile the diagnoses and should
specify which symptoms are associated
with each of the disorder(s).  If certain
symptomatology cannot be disassociated
from one disorder or the other, it should
be so specified.  The examiner must also
comment on the extent to which anxiety
and depressive reaction affects
occupational and social functioning.  The
examiner is asked to express an opinion
as to which of the following criteria
best describes the veteran�s psychiatric
disability picture due solely to anxiety
and depressive reaction:

(a) A mental condition has been
formally diagnosed, but symptoms are
not severe enough either to
interfere with occupational and
social functioning or to require
continuous medication;

(b) Occupational and social
impairment due to mild or transient
symptoms which decrease work
efficiency and ability to perform
occupational tasks only during
periods of significant stress, or;
symptoms controlled by continuous
medication;

(c) Occupational and social
impairment with occasional decrease
in work efficiency and intermittent
periods of inability to perform
occupational tasks (although
generally functioning
satisfactorily, with routine
behavior, self-care, and
conversation normal), due to such
symptoms as: depressed mood,
anxiety, suspiciousness, panic
attacks (weekly or less often),
chronic sleep impairment, and mild
memory loss; or

(d) 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; impaired judgment; impaired
abstract thinking; disturbances of
motivation and mood; and difficulty
in establishing or maintaining
effective work and social
relationships; or

(e) occupational and social
impairment with deficiencies in most
areas, such as work, school, family
relations, judgment, thinking, 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); and the
inability to establish and maintain
effective relationships.

(f) Total occupational and social
impairment, due to such symptoms as:
gross impairment in thought
processes or communication;
persistent delusions or
hallucinations; gross 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.

4.  A multi-axial assessment should be
conducted, and a thorough discussion of
Axis IV (psychosocial and environmental
problems) and Axis V (Global Assessment
of Functioning (GAF) score), with an
explanation of the numeric code assigned,
is to be included.  The claims folder and
a copy of this REMAND must be made
available to the physician for review in
conjunction with the examination.

5.  After the development above has been
accomplished to the extent possible, the
RO should again review the record.
Compliance with this REMAND must be
ensured by the appropriate RO official.
Consideration of a higher rating for
service-connected anxiety and depressive
reaction should be made under the old
criteria for Diagnostic Code 9400 and the
new criteria for the applicable
diagnostic code found in the amended
rating schedule.  Consideration of
service connection for heart disease
should be made under all applicable
statutory and regulatory provisions.  If
any benefit sought on appeal, for which a
notice of disagreement has been filed,
remains denied, the appellant and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The appellant need take no action
unless otherwise notified.

	MICHAEL A. PAPPAS
	Acting Member, Board of Veterans' Appeals

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

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans�
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans� Judicial Review Act, Pub.
L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans� Appeals.  Appellate rights do not
attach to those issues addressed in the remand portion of the
Board�s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1995).
- 2 -


judge_norm: ROBERT A LEAF

disposition: granted

text:
Citation NR: 9709000
Decision Date: 03/20/97		Archive Date: 03/31/97
DOCKET NO.  96-01 003	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for asthma/emphysema.

2.  Whether new and material evidence has been submitted to
reopen the veteran's claim for service connection for hearing
loss.

3.  Entitlement to an increased (compensable) rating for
scar, posterior chest wall, subcapsular area.

REPRESENTATION

Appellant represented by:	North Carolina Division of
Veterans Affairs

ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1944 to
December 1945.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from a June 1995 rating decision from the
Winston-Salem, North Carolina, Department of Veterans Affairs
(VA) Regional Office (RO).  A notice of disagreement was
received in September 1995.  A statement of the case was
issued in September 1995.  A substantive appeal was received
in December 1995.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he has submitted new and material
evidence to reopen his claim for hearing loss.  He maintains
that his exposure to the noise of combat caused his hearing
loss.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has presented new
and material evidence to reopen his claim of service
connection for hearing loss.

FINDINGS OF FACT

1.  Service connection for hearing loss was denied by the RO
in a September 1971 rating decision.  The veteran, in a
September 1971 letter was apprised of his procedural and
appellate rights; however, a notice of disagreement was not
received within the subsequent one-year period.

2.  Additional evidence submitted subsequent to the RO's
September 1971 decision, pertaining to the veteran's request
to reopen his claim for service connection for hearing loss
is new and material in that it raises a reasonable
possibility that a review of all the evidence would result in
a grant of service connection.

CONCLUSIONS OF LAW

1.  The decision of the RO in September 1971 is final.  38
U.S.C.A. � 7105 (West 1991); 38 C.F.R. � 3.104 (1996).

2.  New and material evidence has been submitted and the
claim for service connection for hearing loss is reopened.
38 U.S.C.A. � 5108 (West 1991); 38 C.F.R. � 3.156 (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The RO in a September 1971 decision, denied service
connection for hearing loss on the basis that the condition
was not shown by the evidence or record.  The RO considered
the veteran�s service medical records which were negative for
any finding or complaint of a hearing loss.  The veteran was
notified of this decision that month and did not file a
timely appeal.

A determination on a claim by the agency of original
jurisdiction or RO of which the claimant is properly notified
shall become final if an appeal is not perfected as
prescribed in 38 C.F.R. � 20.302.  38 C.F.R. � 20.1103.  If
new and material evidence is presented or secured with
respect to a claim which has been disallowed, the VA shall
reopen the claim and review the former disposition of the
claim.  38 U.S.C.A. � 5108.

New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim.  38 C.F.R. � 3.156(a).

This Court has held that VA must perform a two-step analysis
when a claimant seeks to reopen a claim based upon additional
evidence.  Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).
First, VA must determine whether the evidence is new and
material.  Second, if it is determined that the evidence is
new and material, the case is reopened and VA must evaluate
the merits of the claim in light of all the evidence, both
new and old.  Id.

This Court recently further delineated the first step of the
Manio analysis by dividing it into three questions to be
asked:  First, �[is] the newly presented evidence �new� (that
is, not of record at the time of the last final disallowance
of the claim and not merely cumulative of other evidence that
was then of record [citations omitted]?�  Second, �[i]s it
�probative� of �the issue[s] at hand� [] (that is, each issue
which was a specified basis for the last final disallowance
[citations omitted])?�  Third, �[i]f it is new and probative,
then, in light of all the evidence of record, is there a
reasonable possibility that the outcome of the claim on the
merits would be changed []?�  Evans v. Brown, 9 Vet.App. 273,
283 (1996).

For purposes of determining whether the evidence is new and
material, the credibility of the evidence must be presumed.
Justus v. Principi, 3 Vet.App. 510, 512-13 (1992).
Nevertheless, a lay witness is not qualified to render
medical opinions as to the etiology or diagnosis of disorders
or disabilities.  See Espiritu v. Derwinski, 2 Vet.App. 492,
494-95 (1992).  Therefore, lay assertions of medical
causation cannot serve as the predicate to reopen a claim
under 38 U.S.C.A. � 5108.  Moray v. Brown, 5 Vet.App. 211
(1993).  If the additional evidence fails to meet either part
of the new-and-material-evidence threshold requirement, the
claim will not be reopened and the claimant will not be
entitled to relitigate the merits of the claim.  Thompson v.
Derwinski, 1 Vet.App. 251, 253 (1991).

Subsequent to the September 1971 RO decision, postservice
medical records and the veteran�s statements have been
presented or secured.

Most of the veteran�s postservice medical records are new but
they are not material as they do not relate to hearing loss.
The only medical record pertinent to the claim, a June 1994
audiology examination notes that the veteran gave a history
of hearing loss since World War II.  Severe bilateral
sensorineural hearing loss was diagnosed.  This does not
constitute material evidence as the veteran is not competent
to render and opinion regarding the cause of his condition.
See Espiritu, supra.

The veteran also asserted that the noise of combat,
particularly being close to machine gun fire, caused his
current hearing loss.  In a claim for service connection, if
the veteran engaged in combat with the enemy, the adverse
effect of not having an official report of in-service injury
or disease can be overcome by satisfactory lay or other
evidence.  38 U.S.C.A. � 1154 (West 1991); 38 C.F.R.
� 3.304(d) (1996).  In addition, under the standard set in
Hensley v. Brown, 5 Vet.App. 155 (1993), a veteran is not
required to show a hearing disability during service to
warrant a grant of service connection. Here, in an attempt to
reopen his claim, appellant submitted his statements
attesting to his hearing loss as a result of combat.  As this
assertion was not considered by the RO in its prior decision
and, in this instance, a lay person�s assertion can be
sufficient evidence to reopen a claim, it constitutes new and
material evidence.  See also Swanson v. Brown, 4 Vet.App. 148
(1993).

Based on the foregoing, the Board concludes that the veteran
has submitted new and material evidence and his claim for
service connection for hearing loss is reopened.  38 C.F.R.
� 3.156(a) (1996).

ORDER

The claim for service connection for bilateral hearing loss
is reopened, and to this extent only, the appeal is granted.

REMAND

In consideration of the above scenario, the Board has
determined that the Board is unable to adjudicate the
veteran's hearing loss claim without violating the veteran's
statutory and regulatory procedural rights by addressing a
question not properly considered by the RO.  Bernard v.
Brown, 4 Vet.App. 384, 392-94 (1993).  Therefore, this issue
must be considered by the RO on a de novo basis.

The veteran has stated that he was treated for his hearing
loss after service at the �old� Moore-General VA Hospital in
Swannola, North Carolina.  The RO should attempt to obtain
these records.

Regarding the veteran�s claim for service connection for
asthma/emphysema, the veteran has stated that, during and
immediately after the Battle of the Bulge, he had a severe
asthma attack when he was assigned to the 3rd Army, 5th
Infantry Division, 10th Regiment, M Company.  He also stated
that he was treated at a military hospital in Metts, Germany
for this condition.  In addition, he has stated that he was
treated for this condition after service at the �old� Moore-
General VA Hospital in Swannola, North Carolina.  This is not
competent medical evidence to reopen the claim.  In addition,
the Board notes that the veteran did not report any treatment
for asthma/emphysema on his original application for benefits
in August 1971 on the space provided for that purpose, and he
reported a history of bronchial asthma for a few years to
medical personnel in November 1975.  However, the veteran�s
assertions trigger the VA�s duty to notify the veteran of the
type of evidence necessary to complete his application.
38 U.S.C.A. � 5103(a) (West 1991); Robinette v. Brown,
8 Vet.App. 69 (1995).  As these putative records are in the
control of the Government, the RO should attempt to locate
these records.  If the veteran's service medical records are
unavailable through the usual means, the Surgeon General's
Office (SGO) Extracts should be requested and associated with
the record.  See O'Hare v. Derwinski, 1 Vet.App. 365 (1991).

Regarding his claim for an increased rating for a scar,
posterior chest wall, subcapsular area, the veteran has
asserted that the examiner, who performed the July 1996 VA
scar examination and noted a 25 centimeter nontender scar
from the veteran�s left lateral to the midline of his back,
reported his nonservice-connected scar.  A physical
examination conducted in July 1971 noted that the veteran
related that he had two scars, one the result of an inservice
shell fragment wound and the other the result of a knife
fight.  Regarding the service-connected scar, the examiner
noted no scar.  Regarding the second scar, a well-healed scar
in the left flank and left costovertebral angle was noted.
It appears that the examiner who performed the July 1996
examination noted the nonservice-connected scar in his
report.  Therefore, a reexamination is needed to ascertain
the current manifestations, if any, of the service connected
scar.

Under the circumstances in this case, further development and
assistance are required.  Thus, this case is REMANDED to the
RO for the following actions:

1.  The RO should contact the appropriate
service department to obtain any
additional service medical records.  In
addition, a search for any military
hospital records from Metts, Germany
should be conducted.  SGO Extracts of the
veteran from the 3rd Army, 5th Infantry
Division, 10th Regiment, M Company in
late 1944 and 1945 should be requested
and associated with the record.

2.  The VA should obtain copies of all
medical records from the �old� Moore-
General VA Hospital in Swannola, North
Carolina, for dates of treatment from
1945 through the present.

3.  The veteran should be afforded a VA
general examination, to determine the
nature and extent of his service-
connected scar.  The claims folder,
should be made available to the examiner
prior to the examination.  All findings
should be reported in detail, and should
include the examiner's opinion as to the
manifestations of the veteran service-
connected scar (as opposed to the
manifestations of his nonservice-
connected scar).

4.  The RO should readjudicate the
veteran's claim for entitlement to
service connection for asthma/emphysema
and hearing loss, and an increased rating
for scar, posterior chest wall,
subcapsular area.

After review by the RO, if any decision remains adverse to
the appellant, a supplemental statement of the case should be
issued.  Thereafter, the case should be returned to the
Board, if in order.  The Board intimates no opinion as to the
ultimate outcome of this case.  The appellant need take no
action unless otherwise notified.

	ROBERT A. LEAF
	Acting Member, Board of Veterans' Appeals

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

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans�
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans� Judicial Review Act, Pub.
L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans� Appeals.  Appellate rights do not
attach to those issues addressed in the remand portion of the
Board�s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1995).
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