judge_norm: JOHN E ORMOND, JR

text:
Citation Nr: 0623000
Decision Date: 08/02/06    Archive Date: 08/15/06

DOCKET NO.  04-04 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Paul, Minnesota

THE ISSUE

Entitlement to an initial rating in excess of 10 percent for
tinnitus, to include entitlement to a separate rating for
each ear.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

Debbie A. Riffe, Counsel

INTRODUCTION

The veteran served on active duty from January 1968 to
November 1971.

This case comes to the Board of Veterans' Appeals (Board) on
appeal of a July 2003 RO rating decision, which granted
service connection and a 10 percent rating for tinnitus,
effective in December 2002.  The veteran appealed for a
higher rating, to include entitlement to a separate rating
for each ear.

The Board also notes that in December 2004 the veteran's
representative submitted a copy of a psychological report,
dated in December 2004, in support of the veteran's "claim
for service connected compensation."  It appears that he may
be raising the issue of an increased rating for his service-
connected mental disorder.  In any case, this issue has not
been adjudicated by the RO, so it is referred to it for
further appropriate consideration.

FINDING OF FACT

From the effective date of service connection, the veteran
has been in receipt of a 10 percent rating, which is the
schedular maximum authorized under VA regulations, for
service-connected bilateral tinnitus.

CONCLUSION OF LAW

There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for the veteran's service-
connected tinnitus.  38 U.S.C.A. �1155 (West 2002); 38 C.F.R.
�4.87, Diagnostic Code 6260 (prior and subsequent to June 13,
2003); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Initial Matter

The Veterans Claims Assistance Act of 2000 (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, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2005).  The U. S.
Court of Appeals for Veterans Claims has held that the
statutory and regulatory provisions pertaining to VA's duty
to notify and to assist do not apply to a claim if resolution
of that claim is based on statutory interpretation, rather
than consideration of the factual evidence.  See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001).

In the instant case, the facts are not in dispute.
Resolution of the veteran's appeal is dependent on
interpretation of the regulations pertaining to the
assignment of disability ratings for tinnitus.  As will be
shown below, the Board finds that the veteran is already
receiving the maximum disability rating available for
tinnitus under the applicable rating criteria.  Furthermore,
regardless of whether the veteran's tinnitus is perceived as
unilateral or bilateral, the outcome of this appeal does not
change.

Therefore, because no reasonable possibility exists that
would aid in substantiating this claim, any deficiencies of
VCAA notice or assistance are rendered moot.  See 38 U.S.C.A.
� 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001)
(compliance with the VCAA is not required if no reasonable
possibility exists that any notice or assistance would aid
the appellant in substantiating the claim).

II.  Merits of Claim

The veteran believes that a rating in excess of 10 percent
for his service-connected tinnitus is warranted.
Specifically, he claims entitlement to a 10 percent
evaluation for each ear.  In a July 2003 rating decision, the
RO granted service connection for tinnitus and assigned a 10
percent rating for the disability, effective in December
2002.  The RO stated that a 10 percent rating was the maximum
allowed for tinnitus.  The veteran appealed the RO's decision
to the Board.  In a statement of the case issued to the
veteran in December 2003, the RO reiterated that a higher
evaluation was not warranted on the basis that under
38 C.F.R. � 4.87, Diagnostic Code 6260, a 10 percent
evaluation was the maximum evaluation allowed for the
condition.

Tinnitus is evaluated under Diagnostic Code 6260, which was
revised effective June 13, 2003, to clarify existing VA
practice that only a single 10 percent evaluation is assigned
for tinnitus, whether the sound is perceived as being in one
ear, both ears, or in the head.  38 C.F.R. � 4.87, Diagnostic
Code 6260, note 2 (2005).

In Smith v. Nicholson, 19 Vet. App. 63 (2005), the U. S.
Court of Appeals for Veterans Claims (Court or Veterans
Court) reversed a Board decision that found that, under pre-
June 2003 regulations, no more than a single 10 percent
rating could be provided for tinnitus, whether perceived as
bilateral or unilateral.  The Court held that pre-1999 and
pre-June 13, 2003 versions of Diagnostic Code 6260 required
that VA assign dual 10 percent ratings for "bilateral"
tinnitus where it was perceived as affecting both ears.

VA appealed the Court's decision in Smith to the United
States Court of Appeals for the Federal Circuit (Federal
Circuit).  To avoid burdens on the adjudication system,
delays in the adjudication of other claims, and unnecessary
expenditure of resources based on court precedent that may
ultimately be overturned on appeal, the Secretary imposed a
stay at the Board on the adjudication of tinnitus claims
affected by Smith.  The specific claims affected by the stay
essentially included all claims in which a claim for
compensation for tinnitus was filed prior to June 13, 2003
and a disability rating for tinnitus of greater than 10
percent was sought.  The veteran's claim was thus affected by
the stay and held in abeyance pending further judicial
development.  The Board notified him of this stay in an
August 2005 letter.

Recently, on June 19, 2006, the Federal Circuit reversed the
Veterans Court's decision in Smith, and affirmed VA's
longstanding interpretation of Diagnostic Code 6260 as
authorizing only a single 10 percent rating for tinnitus,
whether perceived as unilateral or bilateral.  Smith v.
Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  Citing United
States Supreme Court precedent, the Federal Circuit explained
that an agency's interpretation of its own regulations was
entitled to substantial deference by the courts as long as
that interpretation was not plainly erroneous or inconsistent
with the regulations.  Smith, 451 F.3d at 1350-51.  Finding
that there was a lack of evidence in the record suggesting
that VA's interpretation of Diagnostic Code 6260 was plainly
erroneous or inconsistent with the regulations, the Federal
Circuit concluded that the Court erred in not deferring to
VA's interpretation.

As a consequence of that holding, on July 10, 2006, the
Secretary rescinded the stay that had been imposed on all
claims affected by Smith, and directed the Board to resume
adjudication of the previously stayed claims consistent with
VA's longstanding interpretation that a single 10 percent
disability rating is the maximum rating available under
Diagnostic Code 6260, regardless of whether the tinnitus is
perceived as unilateral or bilateral.

In view of the foregoing, the Board concludes that the
version of Diagnostic Code 6260 in effect prior to June 2003
precludes an evaluation in excess of a single 10 percent for
tinnitus.  In other words, the veteran's service-connected
tinnitus has been assigned the maximum schedular rating
available for tinnitus under both the old and new versions of
the regulation.  38 C.F.R. �4.87, Diagnostic Code 6260.
Therefore, his claim for separate 10 percent ratings for each
ear for his service-connected tinnitus must be denied under
both the old and new versions of the regulation.  As the
disposition of this claim is based on the law, and not the
facts of the case, the claim must be denied based on a lack
of entitlement under the law.  See Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994).

The Board notes that this is an initial rating case, and
consideration has been given to "staged ratings" for the
condition over the period of time since service connection
became effective.  Fenderson v. West, 12 Vet. App. 119
(1999).  However, from the effective date of service
connection in December 2002, the veteran's tinnitus has been
evaluated as 10 percent disabling, which is the schedular
maximum authorized under VA regulations.

ORDER

Entitlement to an initial schedular evaluation in excess of
10 percent for tinnitus, to include entitlement to a separate
rating for each ear, is denied.

____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: K A BANFIELD

disposition: denied

condition: respiratory

text:
Citation Nr: 0625000
Decision Date: 08/15/06    Archive Date: 08/24/06

DOCKET NO.  03-15 070	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island

THE ISSUE

Entitlement to an increased rating for chronic pansinusitis
currently evaluated as 30 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

W.T. Snyder, Associate Counsel

INTRODUCTION

The veteran had active service from February 1941 to October
1942.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2000 rating decision of the
Providence, Rhode Island Regional Office (RO) of the
Department of Veterans Affairs (VA).

For good cause shown, the veteran's case has been advanced on
the Board's docket pursuant to the provisions of 38 C.F.R.
� 20.900(c) (2005).

FINDINGS OF FACT

1.  The RO has notified the veteran of the evidence needed to
substantiate his claim and fulfilled the duty to assist him
in developing that evidence.

2.  The veteran's chronic sinus condition manifests with
tenderness around the orbital bones, greater on the right
than left, and complaints of chronic nasal crusting, daily
yellow nasal discharge, with no evidence of polyps, purulent
secretions, swelling, or history of endoscopic sinus surgery.

CONCLUSION OF LAW

The requirements for a rating in excess of 30 percent for
chronic pansinusitis have not been met.  38 U.S.C.A. �� 1155,
5107 (West 2002); 38 C.F.R. �� 4.1, 4.3, 4.7, 4.97,
Diagnostic Code 6510 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000)
(codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106,
5107, and 5126 (West 2002 and Supp. 2005) redefined VA's duty
to assist the veteran in the development of a claim.  VA
regulations for the implementation of the VCAA were codified
as amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159, and
3.326(a) (2005).

The notice requirements of the VCAA require VA to notify the
veteran of any evidence that is necessary to substantiate his
claim, as well as the evidence VA will attempt to obtain and
which evidence he is responsible for providing.  Quartuccio
v. Principi, 16 Vet. App. 183 (2002).  The requirements apply
to all elements of an increased rating claim: veteran status,
existence of a service-connected disability, degree of
disability, and effective date of the disability rating
assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006).  Such notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
by the agency of original jurisdiction (in this case, the
RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112
(2004).  However, the VCAA notice requirements may be
satisfied if any errors in the timing or content of such
notice are not prejudicial to the claimant.  Id.

In this case, the decision on appeal was issued prior to the
enactment of the VCAA.  Thus, preadjudication notice could
not be provided.  Such notice was provided in a November 2004
letter to the veteran regarding what information and evidence
is needed to substantiate the claim for an increased rating,
as well as what information and evidence must be submitted by
the veteran, what information and evidence will be obtained
by VA, and the need for the veteran to advise VA of or submit
any further evidence that pertains to the claim.  The case
was thereafter readjudicated in May and June 2005.  VCAA
notice was also provided in a June 2002 letter.

The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran.  Specifically, the information and evidence that
have been associated with the claims file consists of the
veteran's service medical records and post-service medical
records and examination reports, both private and VA.

In summary, the VCAA provisions have been considered and
complied with.  The veteran was notified and aware of the
evidence needed to substantiate this claim, the avenues
through which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence.  There is no indication that there
is additional evidence to obtain, there is no additional
notice that should be provided, and there has been a complete
review of all the evidence without prejudice to the veteran.
Any error in the sequence of events or content of the notice
is not shown to have any effect on the case or to cause
injury to the claimant.  Moreover, as the Board concludes
below that the preponderance of the evidence is against the
veteran's claim for an increased rating, any question related
to an effective date to be assigned is rendered moot.  Thus,
any such error is harmless and does not prohibit
consideration of this matter on the merits.  See Dingess,
supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549
(Fed. Cir. 1998).

Analysis

The veteran asserts that his pansinusitis should be rated at
the maximum evaluation of 50 percent, as he experiences
constant severe discomfort from headaches, nasal drip,
soreness of cheeks, fevers, and sleep difficulty secondary to
congestion.  The Board finds that the competent medical
evidence of record shows his chronic pansinusitis does not
meet or nearly approximate the criteria for a rating in
excess of 30 percent.  38 C.F.R. �� 4.3, 4.7.

The Board has reviewed all the evidence in the veteran's
claims file.  Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the appellant
or obtained on his behalf be discussed in detail.  Rather,
the Board's analysis below will focus specifically on what
evidence is needed to substantiate the claim and what the
evidence in the claims file shows, or fails to show, with
respect to the claim.  See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).

Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) and are intended to represent the average
impairment of earning capacity resulting from disability.
38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  Disabilities must be
reviewed in relation to their history.  38 C.F.R. � 4.1.
Other applicable, general policy considerations are:
interpreting reports of examination in light of the whole
recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately
reflect the elements of disability, 38 C.F.R. � 4.2;
resolving any reasonable doubt regarding the degree of
disability in favor of the claimant, 38 C.F.R. � 4.3; where
there is a question as to which of two evaluations apply,
assigning a higher of the two where the disability picture
more nearly approximates the criteria for the next higher
rating, 38 C.F.R. � 4.7; and, evaluating functional
impairment on the basis of lack of usefulness, and the
effects of the disabilities upon the person's ordinary
activity, 38 C.F.R. � 4.10.  See Schafrath v. Derwinski,
1 Vet. App. 589 (1991).

Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern,
and past medical reports do not take precedence over current
findings.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Initially, the Board notes the erroneous statement in the
Statement of the Case to the effect that the rating criteria
changed while the veteran's claim was pending.  The rating
criteria for respiratory disorders rated under the 6500,
6600, 6700, and 6800 Diagnostic Code series were changed,
effective October 7, 1996.  The veteran's claim was received
by the RO in June 1999.  Thus, only the current criteria are
applicable to his claim.

The applicable rating criteria for the veteran's sinusitis
provides that a 10 percent evaluation is warranted for one or
two incapacitating episodes of sinusitis per year requiring
prolonged (lasting four to six weeks) antibiotic treatment,
or three to six non-incapacitating episodes of sinusitis per
year characterized by headaches, pain, and purulent discharge
or crusting.  A 30 percent evaluation is required when there
are three or more incapacitating episodes of sinusitis per
year requiring prolonged (lasting four to six weeks)
antibiotic treatment, or more than six non-incapacitating
episodes of sinusitis per year characterized by headaches,
pain, and purulent discharge or crusting.  A 50 percent
evaluation is warranted following radical surgery with
chronic osteomyelitis, or near constant sinusitis
characterized by headaches, pain and tenderness of affected
sinus, and purulent discharge or crusting after repeated
surgeries.  A Note following this section provides that an
incapacitating episode of sinusitis means one that requires
bed rest and treatment by a physician.  38 C.F.R. � 4.97,
Diagnostic Code 6510.

The Board notes that the same criteria apply for the
evaluation of pansinusitis, ethmoid, frontal, maxillary, and
sphenoid sinusitis.  38 C.F.R. � 4.97, Diagnostic Codes 6510,
6511, 6512, 6513 and 6514.

In light of the fact that the veteran is currently rated at
30 percent, the salient issue is the nature of the surgical
procedure he underwent and the number of procedures.  The
December 1995 operation report reflects that the veteran
underwent a septoplasty and cautery of inferior turbinates,
bilaterally, for a deviated nasal septum and hypertrophied
inferior turbinates, bilaterally.  The report reflects no
finding, comment, or other indication that the procedure was
considered radical sinus surgery.  Neither does the report
reflect any finding of osteomyelitis.

The alternative symptoms which meet or approximate a 50
percent rating include near constant sinusitis, characterized
by headaches, pain and tenderness of affected sinus, and
purulent discharge or crusting after repeated surgeries.
Diagnostic Code 6510.  The veteran's VA and private treatment
records for the period 1999 to 2005 reflect that he has
reported complaints of headaches, pain, purulent discharge,
and crusting.  Examinations have confirmed tenderness and
obstruction, but the severity of his changes have generally
been assessed as mild, although a November 2001 private
report noted treatment for severe sinusitis at that time,
requiring doxycycline and prednisone for a 10 to 30 day
period.

An October 2001 VA examination noted that the veteran's nose
was status post septoplasty.  There was mild anterior nasal
crusting, but distally the nose was clear without pus,
polyps, or crusting.  CT scan from May 2000 showed some
mucosal thickening of the right maxillary sinus, but
otherwise no significant pathology.  Collapse of the nasal
valves accounted for nasal congestion.  The examiner stated
there was no evidence of active sinusitis and the CT scan
finding indicated no significant chronic sinusitis.

The May 2003 VA examination report reflects that the veteran
reported that he had been treated for infection on two
occasions during the prior two to three years.  Examination
revealed the veteran to be fatigued and sleepy.  There was
some collapse of the lateral nasal ala and tenderness over
the frontal and maxillary areas, which on a scale of 1 to 10,
the veteran assessed as 5-6/10.  The oropharyngeal mucosa was
normal, and no unusual masses were palpable in the neck.  A
CT scan of the paranasal sinus showed mild mucoperiosteal
changes in the sphenoid and maxillary antra without changes
of acute sinusitis.  The ostial meatal units were patent.
The examiner observed that the findings were consistent with
chronic maxillary and sphenoid sinusitis, and the changes
were of a mild degree.  There were also changes of the
anterior ethmoid cells of a mild to moderate degree.  The
examiner noted the veteran has not been incapacitated by his
sinusitis nor has he been hospitalized for it.  The examiner
also noted the veteran had been treated for two sinus
infections in the past tow to three years, but takes maximal
levels of Tylenol for pain relief every day.

The June 2004 VA examination report reflects that the veteran
reported being treated for an infection on one occasion
during the prior year.  Examination revealed collapse of the
nasal valves and tenderness around the orbital bones, greater
on the right than the left, without swelling, and no polyps
or evidence of purulent secretions in the nose.

The private and VA treatment records associated with the
claims file are consistent with the findings of the 2003 and
2004 examinations.  The VA outpatient records reflect that,
at some routine visits his sinus symptoms were active, such
as in November 2001, and at others only mild tenderness was
noted.  They do, however, show that the veteran's symptoms
are chronic.

In his substantive appeal, the veteran questioned the medical
assessments of the severity of his crusting, indicated his
disagreement with some of the medical findings, such as his
symptoms involve an environmental factor rather than sinus,
and that he thought his surgery was related to his sinus and
not just his nose.

The veteran's current rating of 30 percent addresses his
crusting.  The severity of the crusting is immaterial.  See
Diagnostic Code 6510.  The Board notes his disagreement with
the assessment of the medical professionals who have treated
and examined him, but there is no showing that he has any
medical training.  Lay persons may relate symptoms they
observed, but they may not render an opinion on matters which
require medical knowledge, such as the underlying condition
which is causing the symptoms observed.  See Edenfield v.
Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8
Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91,
93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992); see also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge"), aff'd sub nom. Routen
v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S.
Ct. 404 (1998). (1992).

Following a review of all of the evidence, the Board finds
that his symptomatology does not more nearly approximate the
criteria for a higher rating.  38 C.F.R. �� 4.3, 4.7, 4.87,
Diagnostic Code 6510.

The preponderance of the competent medical evidence of record
shows that the veteran's pansinusitis does not meet or
approximate the higher, maximum, 50 percent rating as, even
assuming his sinusitis to be near constant rather than
chronic, he has not undergone a radical surgical procedure on
his sinuses.  Further, there is no medical evidence of
osteomyelitis.  Neither is there evidence of repeated
surgeries for his sinus, even considering for the sake of
argument the contention that his septoplasty constitutes
surgery to his sinus.  The veteran's symptomatology falls
squarely within the parameters of the 30 percent rating
criteria.

The Board has considered the doctrine of reasonable doubt and
finds that the veteran's chronic pansinusitis, status post-
operative, more nearly approximates a 30 percent evaluation.
38 C.F.R. �� 4.3, 4.7, 4.87, Diagnostic Code 6510.

There is nothing in the record to distinguish this case from
the cases of numerous other veterans who are subject to the
schedular rating criteria for the same disability.  Thus, the
Board finds that the currently assigned 30 percent schedular
rating has already adequately addressed, as far as can
practicably be determined, the average impairment of earning
capacity due to the veteran's service-connected pansinusitis
condition.  See 38 C.F.R. � 4.1.  In addition, there is no
evidence revealing frequent periods of hospitalization.
Therefore, in the absence of such factors, the Board finds
that the criteria for submission for consideration of an
extraschedular rating pursuant to 38 C.F.R. � 3.321(b)(1) are
not met.

ORDER

Entitlement to an increased rating for chronic pansinusitis
is denied.

____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: MARK W GREENSTREET

disposition: granted

text:
Citation Nr: 0626000
Decision Date: 08/21/06    Archive Date: 08/31/06

DOCKET NO.  95-04 020	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to an increased initial rating for right-
handed weakness due to multiple sclerosis, currently rated as
10 percent disabling.

2.  Entitlement to an increased initial rating for left-
handed weakness due to multiple sclerosis, currently rated as
10 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Simone C. Krembs, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1975 to December
1984.

This matter comes before the Board of Veterans' Appeals
(Board) from an April 1996 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO) that awarded
service connection and separate 10 percent disability ratings
for weakness in the right and left hands due to multiple
sclerosis, effective July 1, 1993.  In June 1999, the veteran
testified before the Board at a hearing that was held at the
RO.  In December 1999, July 2003, and February 2005, the
Board remanded the claims for additional development.  As the
10-percent evaluations are less than the maximum available
ratings, the issues remain on appeal.  See AB v. Brown, 6
Vet. App. 35, 38 (1993).

FINDINGS OF FACT

1.  Since July 1, 1993, the veteran's service-connected
right-handed weakness due to multiple sclerosis has been
manifested by symptoms equivalent to no more than mild
incomplete paralysis of the intrinsic muscles of the lower
radicular group.

2.  Since July 1, 1993, the veteran's service-connected left-
handed weakness due to multiple sclerosis has been manifested
by symptoms equivalent to no more than mild incomplete
paralysis of the intrinsic muscles of the lower radicular
group.

CONCLUSIONS OF LAW

1.  The criteria for an increased rating of 20 percent for
right-handed weakness due to multiple sclerosis have been met
since July 1, 1993.  38 U.S.C.A. � 1155 (West 2002); 38
C.F.R. �� 4.14, 4.73, 4.123, 4.124a, Diagnostic Codes (DCs)
5224-5230, 5307, 8018, 8512, 8515 (1996 - 2005).

2.  The criteria for an increased rating of 20 percent for
right-handed weakness due to multiple sclerosis have been met
since July 1, 1993.  38 U.S.C.A. � 1155 (West 2002); 38
C.F.R. �� 4.14, 4.73, 4.123, 4.124a, DCs 5224-5230, 5307,
8018, 8512, 8515 (1996 - 2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Increased Rating

Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities.  Separate
diagnostic codes identify the various disabilities.
38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � Part 4 (2005).
When rating a service-connected disability, the entire
history must be borne in mind.  Schafrath v. Derwinski, 1
Vet. App. 589 (1991).  Where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, the present level of disability is of
primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58
(1994).  In this case, the veteran timely appealed the rating
initially assigned for his right- and left-handed weakness
due to multiple sclerosis on the original grant of service
connection.  The Board must therefore consider entitlement to
"staged ratings" for different degrees of disability in the
relevant time periods, that is, since the original grant of
service connection for that disability.  See Fenderson v.
West, 12 Vet. App. 119, 125-26 (1999).

Ratings for service-connected disabilities are determined by
comparing the veteran's symptoms with criteria listed in VA's
Schedule for Rating Disabilities (hereinafter "Rating
Schedule"), which is based, as far as practically can be
determined, on average impairment in earning capacity.
Separate diagnostic codes identify the various disabilities.
See 38 C.F.R. Part 4.  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 (2005).

Multiple sclerosis is rated under 38 C.F.R. � 4.124a, DC
8018.  The minimum rating for this disorder is 30 percent.
In order to warrant more than a 30 percent rating, the
disorder may be rated on its residuals.  With the exceptions
noted, disability from neurological conditions and convulsive
disorders and their residuals may be rated from 10 to 100
percent in proportion to the impairment of motor, sensory, or
mental function.  Psychotic manifestations, complete or
partial loss of use of one or more extremities, speech
disturbances, impairment of vision, disturbances of gait,
tremors, visceral manifestations, etc. referring to the
appropriate bodily system of the schedule, should be
especially considered.  With partial loss of use of one or
more extremities from neurological lesions, rate by
comparison with the mild, moderate, severe, or complete
paralysis of peripheral nerves.  38 C.F.R. � 4.124a.  As the
veteran is already in receipt of well over the minimum 30
percent rating under this code, the Board finds that no
further consideration of this particular code section is
necessary.

38 C.F.R. � 4.120 provides that neurologic disabilities are
ordinarily rated in proportion to the impairment of motor,
sensory or mental function, with special consideration of any
psychotic manifestations, complete or partial loss of use of
one or more extremities, speech disturbances, impairment of
vision, disturbances of gait, tremors, visceral
manifestations, injury to the skull, etc.  In rating
peripheral nerve injuries and their residuals, attention
should be given to the site and character of the injury, the
relative impairment in motor function, trophic changes, or
sensory disturbances.

38 C.F.R. � 4.123 provides that cranial or peripheral
neuritis characterized by loss of reflexes, muscle atrophy,
sensory disturbances, and constant pain, which may at times
be excruciating, is to be rated on the scale provided for
injury of the nerve involved, with a maximum rating equal to
severe, incomplete, paralysis.  The maximum rating which may
be assigned for neuritis not characterized by such organic
changes will be that for moderate incomplete paralysis.  38
C.F.R. � 4.123.

The veteran has been in receipt of a total disability rating
(100 percent) for multiple sclerosis with loss of use of both
lower extremities since January 1997.  He has been in receipt
of separate 10 percent ratings for each the right and left
hands since July 1993; he seeks increased ratings for both
the right and left hands.  The Board thus turns to the
pertinent criteria.

Relevant diagnostic codes include DCs 8512, which
contemplates paralysis of the lower radicular group, 8514,
which contemplates paralysis of the radial nerve, and 8515,
which contemplates paralysis of the median nerve.  Additional
diagnostic codes for consideration include DCs 5224-5230,
which pertain to limitation of motion of the individual
digits.

Under DC 8512, a 20 percent rating may be assigned for mild
incomplete paralysis of the minor or major lower radicular
group.  A 30 percent rating requires moderate incomplete
paralysis of the minor lower radicular group.  A 40 percent
rating requires moderate incomplete paralysis of the major
lower radicular group.  A 50 percent rating requires severe
incomplete paralysis of the major lower radicular group.  A
60 percent rating requires complete paralysis of all
intrinsic muscles of the minor hand, and some or all flexors
of wrist and fingers, paralyzed (substantial loss of use of
hand).  A 70 percent rating requires complete paralysis of
all intrinsic muscles of the major hand and some or all
flexors of wrist and fingers, paralyzed (substantial loss of
use of hand).  38 C.F.R. � 4.124a, DC 8512.

The term "incomplete paralysis," with this and other
peripheral nerve injuries, indicates a degree of lost or
impaired function substantially less than the type picture
for complete paralysis given with each nerve, whether due to
varied level of the nerve lesion or to partial regeneration.
When the involvement is wholly sensory, the rating should be
for the mild, or at most, the moderate degree.  The rating
for peripheral nerves are for unilateral involvement; when
bilateral, the ratings are combined with application of the
bilateral factor.  38 C.F.R. � 4.124a.

VA treatment records show that the veteran first began to
complain of weakness and tingling in his hands in October
1995.  He described the problems with his hands as primarily
involving dropping objects.  Subsequent VA treatment records
dated to December 2005 show that the veteran has continued to
complain of numbness and tingling in his hands, with
decreased grip strength.  Throughout this period, however,
his grip strength has uniformly been assessed as 4/5 or
better, and only slight atrophy of the muscles was noted in
November 2005.

On VA examination in September 1994, the veteran was noted to
have a weak grip, bilaterally.  On VA examination in October
1995, the veteran complained of dropping objects and
diminished writing skills.  Physical examination revealed
minimal weakness of both hands.  On VA examination in
February 1997, the veteran again complained of weakness in
his hands.  Physical examination at that time revealed a weak
grip, bilaterally.  Sensory examination of the upper
extremities was normal.  On VA examination in January 2000,
the veteran complained of a more profound weakness in his
hands.  Motor examination revealed diminished fine rapid
repetitive finger movements in the left hand, as compared to
a normal motor examination of the right hand.  Strength was
noted to be 5/5, bilaterally.  Sensory examination revealed
diminished intermediate vibratory sensation in the hands,
bilaterally.  There was some degree of fine hand
unsteadiness.  Overall, however, there was no gross
malfunction of the upper extremities noted at that time.

The veteran was hospitalized in February 2003 due to an
exacerbation of his multiple sclerosis.  Examination on
admission to the hospital noted 4/5 hand grip weakness,
bilaterally.

On VA examination in November 2005, the veteran complained of
a worsening of his hand strength since his February 2003
hospital admission.  Examination revealed mild atrophy of the
thenar eminence, with a somewhat softened first web space,
but no atrophy there.  A hand grip testing device showed that
he had a grip strength of 13 kg. on the right and 17 kg. on
the left.  There was moderate weakness noted of all the
intrinsic muscle groups of the hands and of his grip
strength.  There was additional weakness due to fatiguability
during the repetitive portions of the examination.

The veteran was again hospitalized with an exacerbation of
his multiple sclerosis in December 2005.  Physical
examination revealed a bilateral grip strength of 4/5.  The
strength in his upper extremities at the shoulders, wrists,
and elbows measured 4+/5 or better.  Tone and coordination
were intact.

The Board finds that despite recent evidence of mild atrophy
in the thenar eminence and moderate weakness of the intrinsic
muscle groups of the hands and of grip strength, the evidence
as a whole, including treatment records dated after the
November 2005 examination, demonstrates that the veteran's
right and left hand disabilities approximate no more than
mild incomplete paralysis under DC 8512.  He is thus entitled
to separate 20 percent ratings for the right and left hand,
but no higher.  The Board finds that the veteran is not
entitled to higher ratings of 40 and 30 percent for his major
and minor hands, respectively, as his grip strength, though
decreased, has at no time measured less than 4/5,
bilaterally, and his sensory examination is only mildly
diminished.  Despite complaints of numbness, there is no
indication that motion is painful.  Additionally, the
strength in his upper extremities at the shoulders, wrists,
and elbows has measured 4+/5 or better, and his tone,
coordination, reflexes and pulses have been intact.  Finally,
while it is clear that the veteran has had difficulty with
writing and with dropping objects, he remains independent in
activities of daily living.  It appears that the veteran's
nerve impairment primarily manifests in sensory disturbances.
Therefore, the Board finds that the veteran's right and left
hand disabilities are more appropriately classified as mild
in severity and ratings higher than 20 percent are thus not
warranted under DC 8512.

The Board similarly finds that ratings higher than 20 percent
are not warranted under either DC 8514 or 8515.  Diagnostic
Code 8514 provides for a 20 percent rating for mild
impairment and a 30 percent rating where there is moderate
impairment. Where paralysis is incomplete on the major side,
a 50 percent rating is warranted for severe impairment.  A 70
percent rating is warranted where there is complete paralysis
of the major side, with drop of hand and fingers, wrist and
fingers perpetually flexed, the thumb adducted falling within
the line of the outer border of the index finger; can not
extend hand at wrist, extend proximal phalanges of fingers,
extend thumb, or make lateral movement of wrist; supination
of hand, extension and flexion of elbow weakened, the loss of
synergic motion of extensors impairs the hand grip seriously;
total paralysis of the triceps occurs only as the greatest
rarity.  A 38 C.F.R. � 4.124a, DC 8514.

Under DC 8515, a 30 percent disability rating is warranted
for the major upper extremity, and a 20 percent rating is
warranted for the minor upper extremity for moderate
incomplete paralysis of the median nerve.  A 50 percent
disability rating is warranted for the major upper extremity,
and a 40 percent rating is warranted for the minor upper
extremity for severe incomplete paralysis of the median
nerve, and a 70 percent disability rating is warranted for
the major upper extremity, and a 60 percent rating is
warranted for the minor upper extremity for complete
paralysis of the median nerve.  38 C.F.R. � 4.124a, DC 8515.

As detailed above, the Board has determined that the
veteran's right and left hand disabilities approximate nerve
impairment that primarily manifests in sensory disturbance
and is no more than mild in severity.  The veteran's
symptomatology therefore does not meet the criteria for
ratings higher than 20 percent under either DC 8514 or 8515,
as his disabilities have been determined not to be moderately
severe or severe in nature.

The Board also finds that ratings higher than 20 percent are
not warranted under DC 5307.  Diagnostic Code 5307 provides
for a 30 percent evaluation for a moderately severe muscular
disability of the muscles arising from the internal condyle
of the humerus in the major upper extremity, and for a severe
muscular disability of the muscles in the minor upper
extremity.  A 40 percent rating is warranted for a severe
muscular disability of the major upper extremity.  38 C.F.R.
� 4.73, DC 5307.

For the same reasons as cited above, the Board finds that the
veteran's right and left hand disabilities approximate
impairment that is no more than mild in severity, and the
veteran's symptomatology therefore also does not meet the
criteria for ratings higher than 20 percent under DC 5307.
In order to warrant higher ratings under DC 5307, his
disabilities must be found to be moderately severe or severe
in nature.

It is not clear from the evidence of record whether the
veteran has limitation of motion of individual digits.  Even
considering the finding on examination in November 2005 that
the veteran experienced additional weakness due to
fatiguability as a result of repetitive motion, however, the
Board finds that the veteran's right and left hand
disabilities would not warrant ratings higher than 20 percent
under the diagnostic codes pertaining to limitation of motion
of individual digits.  See DeLuca v. Brown, 8 Vet. App. 202,
206-07 (1995); 38 C.F.R. � 4.71a, DCs 5228-5230 (2005).  Any
limitation of motion of the ring or little finger is
noncompensable, and limitation of motion of the index or long
finger would warrant no more than a 10 percent rating.
Limitation of motion of the thumb warrants no more than a 20
percent rating.  38 C.F.R. � 4.71a, DCs 5228-5230.  Ankylosis
of the digits has not been shown, and even ankylosis would
not warrant a higher rating.  38 C.F.R. � 4.71a, DCs 5224-
5227 (2001, 2005).  In any event, the findings on examination
do not show a compensable level of limitation of motion of
any of the digits.  Accordingly, the diagnostic codes
pertaining to limitation of motion of the individual digits
do not provide a basis upon which disability ratings higher
than 20 percent may be assigned.

The Board is aware that the veteran has significant symptoms
in both his right and left hands, but the Board in sum finds
that the weight of the credible evidence demonstrates that
the veteran's right and left hand disabilities do not rise to
the level of moderate disability and therefore do not warrant
ratings higher than 20 percent.  As an initial rating case,
consideration has been given to "staged ratings" (different
percentage ratings for different periods of time since the
effective date of service connection).  Fenderson v. West, 12
Vet. App. 119 (1999).  However, staged ratings are not
indicated in the present case, as the Board finds the
veteran's right and left hand disabilities have continuously
been 20 percent disabling under DC 8512 since January 30,
2002, when service connection became effective.  The benefit-
of-the-doubt rule has been considered in making this
decision.  38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).

Duties to Notify and Assist the Appellant

Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim.  This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf.  See 38 U.S.C.A. �� 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. � 3.159
(2005).  The notice must:  (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)."  Pelegrini v. Principi, 18
Vet. App. 112 (2004).

Here, the RO sent correspondence in February and November
2005; rating decisions in April 1996, August 1997, and March
2000; a statement of the case in September 1996; and
supplemental statements of the case in February 1998, March
2000, and August 2003.  These documents discussed specific
evidence, the particular legal requirements applicable to the
claims, the evidence considered, the pertinent laws and
regulations, and the reasons for the decisions.  VA made all
efforts to notify and to assist the appellant with regard to
the evidence obtained, the evidence needed, the
responsibilities of the parties in obtaining the evidence,
and the general notice of the need for any evidence in the
appellant's possession.  The Board finds that any defect with
regard to the timing or content of the notice to the
appellant is harmless because of the thorough and informative
notices provided throughout the adjudication and because the
appellant had a meaningful opportunity to participate
effectively in the processing of the claims with an
adjudication of the claims by the RO subsequent to receipt of
the required notice.  There has been no prejudice to the
appellant, and any defect in the timing or content of the
notices has not affected the fairness of the adjudication.
See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically
declining to address harmless error doctrine); see also
Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Thus, VA has
satisfied its duty to notify the appellant and had satisfied
that duty prior to the final adjudication in the January 2006
supplemental statement of the case.

In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained.  The appellant has not
referred to any additional, unobtained, relevant, available
evidence.  VA has also obtained multiple medical examinations
in relation to these claims.  Thus, the Board finds that VA
has satisfied both the notice and duty to assist provisions
of the law.

ORDER

An increased rating of 20 percent, but no higher, is granted
for right-handed weakness due to multiple sclerosis, from
July 1, 1993.

An increased rating of 20 percent, but no higher, is granted
for left-handed weakness due to multiple sclerosis, from July
1, 1993.

____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: J A MARKEY

text:
Citation Nr: 0627000
Decision Date: 08/28/06    Archive Date: 09/06/06

DOCKET NO.  04-36 552	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota

THE ISSUE

Entitlement to automobile or adaptive equipment under 38
U.S.C. � 3902 based on entitlement to compensation under 38
U.S.C. � 1151.

REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

J. Connolly Jevtich, Counsel

INTRODUCTION

The veteran served on active duty from February 1943 to
November 1945.

This matter comes to the Board of Veterans Appeals (Board)
from a May 2004 rating decision of the St. Paul, Minnesota,
Department of Veterans Affairs (VA) Regional Office (RO).

FINDING OF FACT

The veteran's T4 paraplegia causes the loss of use of his
feet.

CONCLUSION OF LAW

The eligibility criteria for entitlement to automobile or
adaptive equipment have been met.  38 U.S.C.A. �� 1151, 3901,
3902 (West 2002 & Supp. 2005); 38 C.F.R. �� 3.808, 4.63
(2005).

REASONS AND BASES FOR FINDING AND CONCLUSION

There has been a significant change in the law with the
enactment of the Veterans Claims Assistance Act of 2000
(VCAA).  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107,
5126 (West 2002).  In the instant case, the veteran's claim
is being granted.  As such, any deficiencies with regard to
VCAA are harmless and nonprejudicial

The Secretary shall repair, replace or reinstall adaptive
equipment deemed necessary for the operation of an automobile
or other conveyance acquired in accordance with the
provisions of Title 38, Chapter 39, and provide, repair,
replace, or reinstall such adaptive equipment for any
automobile or other conveyance which an eligible person may
previously or subsequently have acquired, where the veteran
has a disability that includes one of the following: loss or
permanent loss of use of one or both feet; or loss or
permanent loss of use of one or both hands; or permanent
impairment of vision of both eyes to the required specified
degree.  38 U.S.C.A. � 3902; 38 C.F.R. � 3.808.

In March 1995, the RO granted compensation under 38 U.S.C.A.
� 1151 for T4 paraplegia with loss of bowel and bladder
control.  He was also awarded entitlement to special monthly
compensation.  In May 1995, the RO granted entitlement to
special monthly compensation based on the need for aid and
attendance.  A May 2001 VA examination revealed that the
veteran was paralyzed and wheelchair-bound.  The diagnosis
was paralysis.  In February 2002, the veteran was granted
special monthly compensation based on the need for a higher
level of regular aid and attendance.  In May 2004, the
veteran was granted entitlement to specially adaptive
housing.

In May 2004, the RO denied entitlement to automobile and
adaptive equipment, stating that eligibility for such
benefits under 38 U.S.C. � 3902 is expressly limited to
service-connected disabilities, not disabilities addressed
under 38 U.S.C. � 1151.  At the time of this decision, the RO
correctly interpreted 38 U.S.C. � 3902.

However, a recent amendment to 38 U.S.C.A. � 1151 provides
that an "1151 disability" shall be treated in the same
manner as if it were a service-connected disability for
purposes of Chapter 39, relating to automobiles and adaptive
equipment.  See Veterans Benefits Improvement Act of 2004,
Pub. L. No. 108-454, 118 Stat. 3598 (Dec. 10, 2004).

Accordingly, the Board finds that the evidence supports the
claim and that, therefore, entitlement to a certificate of
eligibility for financial assistance in acquiring an
automobile or other conveyance or specially adaptive
equipment is granted.

ORDER

Entitlement to allowance for automobile and other adaptive
equipment is granted, subject to the law and regulations
governing the payment of monetary benefits.

____________________________________________
J. A. MARKEY
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: MILO H HAWLEY

disposition: remanded

text:
Citation Nr: 0628000
Decision Date: 09/07/06    Archive Date: 09/12/06

DOCKET NO.  05-31 283	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to an increased disability evaluation for the
veteran's lumbosacral spine degenerative joint disease,
currently evaluated as 40 percent disabling.

2.  Entitlement to an increased disability evaluation for the
veteran's right thigh gunshot wound residuals with Muscle
Group XIII injury, currently evaluated as 30 percent
disabling.

3.  Entitlement to an increased disability evaluation for the
veteran's right total knee replacement residuals, currently
evaluated as 30 percent disabling.

4.  Entitlement to an increased disability evaluation for the
veteran's right foot gunshot wound residuals, currently
evaluated as 10 percent disabling.

5.  Entitlement to a total rating for compensation purposes
based on individual unemployability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel

INTRODUCTION

The veteran had active service from January 1943 to February
1945.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from a July 2004 rating decision of the St.
Louis, Missouri, Regional Office (RO) which denied increased
disability evaluations for the veteran's lumbosacral spine
degenerative joint disease, right thigh gunshot wound
residuals with Muscle Group XIII injury, right total knee
replacement residuals, and right foot gunshot wound residuals
and a total rating for compensation purposes based on
individual unemployability.  In July 2006, the veteran
submitted a Motion to Advance on the Docket.  In August 2006,
the Board granted the veteran's motion.

This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  The Department of Veterans
Affairs (VA) will notify the veteran if further action is
required on his part.

REMAND

The veteran asserts that his service-connected lumbosacral
spine degenerative joint disease, right thigh and right foot
gunshot wound residuals, and total knee replacement residuals
have increased in severity and render him unemployable.  In
an April 2006 written statement, the veteran indicates that
he had received ongoing treatment for his service-connected
disabilities at the Mount Vernon, Missouri, VA Outpatient
Treatment Center for the preceding three years.  Clinical
documentation of the cited treatment is not of record.  The
VA should obtain all relevant VA and private treatment
records which could potentially be helpful in resolving the
veteran's claim.  Murphy v. Derwinski, 1 Vet. App. 78, 81-82
(1990).

In his September 2005 Appeal to the Board (VA Form 9), the
veteran advanced that his head shell fragment wound residuals
had increased in severity; encompassed retained metallic
foreign bodies; and were symptomatic.  The Board finds that
the issue of an increased evaluation for the veteran's head
shell fragment wound residuals is inextricably intertwined
with the certified issue of the veteran's entitlement to a
total rating for compensation purposes based on individual
unemployability given that determinations as to total ratings
under 38 C.F.R. � 4.16 require an accurate assessment of the
industrial and functional impairment associated with all of
the veteran's service-connected disabilities.  Harris v.
Derwinski, 1 Vet. App. 180 (1991).  The fact that an issue is
inextricably intertwined does not establish that the Board
has jurisdiction of the issue, only that the Board cannot
fairly proceed while there are outstanding matters that must
be addressed by the RO in the first instance.

Accordingly, this case is REMANDED for the following action:

1.  Review the claims files and ensure
that all notification and development
action required by the VCAA is completed.
In particular, the RO should ensure that
the notification requirements and
development procedures contained in 38
U.S.C.A. �� 5102, 5103, 5103A, 5107 (West
2002); 38 C.F.R �� 3.102, 3.159, 3.326(a)
(2006); and the United States Court of
Appeals for Veterans Claims' (Court)
holdings in Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006) are fully met.

2.  Then request that copies of all VA
clinical documentation pertaining to the
veteran's treatment at the Mount Vernon,
Missouri, VA Outpatient Treatment Center,
not already of record, be forwarded for
incorporation into the record.

3.  Then adjudicate the issue of a
compensable evaluation for the veteran's
head shell fragment wound residuals with
a scar behind the left ear.  The veteran
should be informed in writing of the
resulting decision and his associated
appellate rights.  The issue is not on
appeal unless there is a notice of
disagreement and a substantive appeal as
to that issue.

4.  Then readjudicate the veteran's
entitlement to increased evaluations for
his lumbosacral spine degenerative joint
disease, right thigh gunshot wound
residuals with Muscle Group XIII injury,
right total knee replacement residuals,
and right foot gunshot wound residuals
and a total rating for compensation
purposes based on individual
unemployability.  If the benefits sought
on appeal remain denied, the veteran
should be issued a supplemental statement
of the case (SSOC) which addresses all
relevant actions taken on the claims for
benefits, to include a summary of the
evidence and applicable law and
regulations considered since the issuance
of the last SSOC.  He should be given the
opportunity to respond to the SSOC.

The veteran is free to submit additional evidence and
argument while the case is in remand status.  See
Kutscherousky v. West, 12 Vet. App. 369 (1999).

The veteran's appeal must be afforded expeditious treatment
by the RO.  The law requires that all claims that are
remanded by the Board or by the Court for additional
development or other appropriate action must be handled in an
expeditious manner.  See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. � 5101 (West 2002) (Historical and
Statutory Notes).  In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board is appealable to the Court.  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: C W SYMANSKI

condition: hypertension

text:
Citation Nr: 0629000
Decision Date: 09/13/06    Archive Date: 09/20/06

DOCKET NO.  98-19 861A	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for kidney disease on a
direct basis or alternatively as secondary to the service-
connected disability of hypertension.

2.  Entitlement to service connection for prostate disease on
a direct basis or alternatively as secondary to the service-
connected disability of hypertension.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Powers, Associate Counsel

INTRODUCTION

The veteran served on active duty from December 1968 until
November 1971.  This appeal arises from a March 1998 rating
decision by the St. Louis, Missouri Regional Office (RO) of
the Department of Veterans Affairs.  Subsequently, the case
was transferred to the St. Petersburg, Florida RO.  In
September 2002, the undersigned Veterans Law Judge conducted
a hearing regarding the issues on appeal.  In March 2005 the
Board granted the veteran's appeal for service connection for
hypertension on the basis that the service connected PTSD was
aggravating the hypertension and also remanded the issue of
service connection for the disabilities now in issue.  In the
August 2005 Supplemental Statement of the Case (SSOC), the RO
adjudicated the issues on appeal on a direct and secondary
basis.  The Board will proceed accordingly.

FINDINGS OF FACT

1.  A preponderance of the evidence demonstrates that kidney
disease was not related to active service and was not caused
or aggravated by his service-connected hypertension.

2.  A preponderance of the evidence demonstrates that
prostate disease was not related to active service and was
not caused or aggravated by his service-connected
hypertension.

CONCLUSIONS OF LAW

1.  Kidney disease was not incurred in or aggravated by
service, may not be presumed to have been incurred therein,
and is not proximately due or the result of a service
connected disability.  38 U.S.C.A. �� 1110, 5107 (West 2002);
38 C.F.R. �� 3.303, 3.310 (2005).

2.  Prostate disease was not incurred in or aggravated by
service, and is not proximately due or the result of a
service connected disability.  38 U.S.C.A. �� 1110, 5107
(West 2002); 38 C.F.R. �� 3.303, 3.310 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection

Service connection is established for a disability resulting
from personal injury suffered or disease contracted in the
line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in the line of duty, during a
period of war.  38 U.S.C.A. � 1110.  In order to qualify for
entitlement to compensation under 38 U.S.C.A. � 1110, a
claimant must prove the existence of (1) a disability and (2)
that such disability has resulted from a disease or injury
that occurred in the line of duty.  Sanchez-Benitez v.
Principi, 259 F.3d 1356, 1360-61 (Fed. Cir. 2001).
Notwithstanding the absence of evidence of certain specified
chronic diseases, including renal disease, during service,
service incurrence may be presumed if the disease is
manifested to a degree of 10 percent or more within one year
of service separation.  38 C.F.R. �� 3,307, 3.309.

Alternatively, service connection may be established on a
secondary basis for a disability which is proximately due to
or the result of a service-connected disease or injury.  38
C.F.R. � 3.310(a).  The Court of Appeals for Veterans Claims
has construed this provision as entailing "any additional
impairment of earning capacity resulting from an already
service connected condition, regardless of whether or not the
additional impairment is itself a separate disease or injury
caused by the service connected condition."  Allen v. Brown,
7 Vet. App. 439, 448 (1995).  Establishing service connection
on a secondary basis essentially requires evidence sufficient
to show (1) that a current disability exists and (2) that the
current disability was either (a) caused by or (b) aggravated
by a service-connected disability.  Id.

The claimant bears the burden to present and support a claim
of benefits.  38 U.S.C.A. � 5107(a).  In evaluating service
connection claims, the Board shall consider all information,
including lay and medical evidence of record. When there is
an approximate balance of positive and negative evidence
regarding any issue material to the determination of a
matter, the Board shall give the benefit of the doubt to the
claimant.  38 U.S.C.A. � 5107(b).

A.  Kidney Disease

The veteran's service medical records are absent for kidney
disease.  The August 1971 separation exam noted a "NORMAL"
genitourinary system.  In 1993, many years after separation
from active service, the veteran was noted as having a large
multiplicity of small cysts throughout both kidneys.  Several
renal sonograms have noted the presence of bilateral renal
cysts.  See Private Medical Record (Mar. 1997); Brooklyn VAMC
records (Jan. 1997, July 1999, June 2000).  The veteran has
been diagnosed with polycystic kidney disease.  See VA Heart
Examination (Jan. 1998), VA Genitourinary Examination (Jan.
1998).

During the September 2002 hearing, the veteran testified that
his hypertension caused his kidney and prostate disease.
However, numerous medical opinions dispute that claim.  A
March 1997 private medical report stated the following:
"Diagnostic considerations should include adult polycystic
kidney disease which may in fact be the etiology for the
patient's hypertension."  In August 1999, a VA examiner
stated the veteran had hypertension secondary to polycystic
kidney disease, and in 2003, a VA examiner stated that "it
seems more reasonable to point out that the most likely cause
of this patient's hypertension is polycystic kidney."  See
VA Heart Examination (May 2003).

In June 2005, the veteran underwent another VA examination to
determine whether his kidney disease was secondary to his
hypertension.  The examiner stated that the veteran's
hypertension was more likely than not secondary to the
polycystic kidney disease, and his chronic renal
insufficiency was more likely secondary to polycystic kidney
disease.  The examiner added that the polycystic kidney
disease is a genetic disorder which results in hypertension
as oppose to the reverse.

The examiner's opinion stated that the large kidney cysts
compromise renal flow, which results in elevation of the
serum creatinine, and the large cystic kidneys further
compromise renal hemodynamics stimulating the angiotension
system resulting in hypertension.  The hypertension in turn
can further aggravate renal insufficiency by increasing the
patient's glomerular pressure resulting in glomerular
sclerosis and worsening hypertension.  The examiner went on
to say that the service connected aggravation of hypertension
by post-traumatic stress disorder (PTSD) was less likely than
not to have any significant bearing on his renal
insufficiency and added that the component of renal
insufficiency resulting from that component of hypertension
caused by his PTSD is more likely inconsequential.  The
examiner stated that by far the primary component of the
veteran's chronic renal insufficiency is polycystic disease
which is well known entity for hypertension and renal
failure.

Based on the competent medical evidence of record, no link is
established between the veteran's currently diagnosed kidney
disease and hypertension and any incident of his active
military service.  Service medical records do not show that
he was treated for kidney disease during service, nor is
there any evidence of such disease within one year of
separation from service..  The separation exam specifically
noted a "NORMAL" genitourinary system.  Numerous medical
opinions of record state that the veteran's hypertension is
secondary to his polycystic kidney disease, not the other way
around.  Additionally, no other evidence of record suggesting
that the veteran's current kidney disease is causally related
to event(s) in service exists.  Therefore, the veteran's
kidney disease is not proximately due to or the result of a
service connected disability.  The veteran's own theory of
medical diagnosis and causation cannot be accepted as
competent evidence as he is not shown to possess the
requisite training to speak to issues of medical diagnosis
and causation.  See Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992).  Accordingly, the veteran's claim must be
denied.

In reaching this decision, the Board considered the benefit-
of-the-doubt rule; however, as the preponderance of the
evidence is against the veteran's claim, such rule is not for
application in this case.  38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

B.  Prostate Disease

The veteran's service medical records are absent for prostate
disease.  The August 1971 separation exam noted a "NORMAL"
genitourinary system.  In 1993, many years after separation
from active service, the veteran was noted as having a
moderately enlarged prostate and seminal vesicles.  A January
1998 VA Genitourinary Examination noted mild benign prostatic
hyperplasia symptoms, and a May 2001 radiology report noted
an enlarged prostate.

During the September 2002 hearing, the veteran testified that
his hypertension caused his kidney and prostate disease.

In June 2005, the veteran underwent another VA examination to
determine whether his prostate disease was secondary to his
hypertension.  The examiner diagnosed the veteran with
prostatic intraepithelial neoplasia and benign hypertrophy
and stated that the veteran's benign prostatic hypertrophy
was less likely than not secondary to the service-connected
hypertension and added that the two conditions were
unrelated.

Based on the competent medical evidence of record, no link is
established between the veteran's current diagnosed prostate
disease and hypertension and any incident of his active
military service.  Service medical records do not show that
he was treated for prostate disease during service.  The
separation exam specifically noted a "NORMAL" genitourinary
system.  The medical opinions of record state that the
veteran's prostatic hypertrophy is unrelated to his
hypertension.  Additionally, no other evidence of record
suggesting that the veteran's current prostate disease is
causally related to event(s) in service exists.  Therefore,
the veteran's prostate disease is not proximately due to or
the result of a service connected disability.  The veteran's
own theory of medical diagnosis and causation cannot be
accepted as competent evidence as he is not shown to possess
the requisite training to speak to issues of medical
diagnosis and causation.  See Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).  Accordingly, the veteran's claim
must be denied.

In reaching this decision, the Board considered the benefit-
of-the-doubt rule; however, as the preponderance of the
evidence is against the veteran's claim, such rule is not for
application in this case.  38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

II.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. �� 5100,
5102, 5103, 5107, 5126 and 38 C.F.R. �� 3.102, 3.156(a),
3.159, 3.326(a).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and the 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).  In accordance with 38 C.F.R. � 3.159(b)(1), proper
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; and (3) that the
claimant is expected to provide.  Proper notice must also ask
the claimant to provide any evidence in their possession that
pertains to the claim.  Notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim.

The veteran was advised of the necessary evidence to
substantiate his claim; that the RO would assist him in
obtaining additional information and evidence; of the
responsibilities on both his part and VA's in developing the
claim; and of the need to provide any evidence in his
possession that pertains to the claim.  See Letters from RO
to the veteran (Jan. 2004, Feb. 2005, May 2005).

Remanding this case back to the RO for further VCAA
development would be an essentially redundant exercise and
would result only in additional delay with no benefit to the
veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993);
see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(holding that remands which would only result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).
Accordingly, the Board finds that no prejudice to the veteran
will result from an adjudication of his claim at this time.

The veteran's service medical records are available, and
there is no known pertinent evidence that is not currently
part of the claim's file.  Additionally, the veteran was
afforded multiple VA examinations.  Hence, VA has fulfilled
its duty to assist the appellant in the development of his
claim.

For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
assistance is necessary, and deciding the appeal at this time
is not prejudicial to the veteran.

ORDER

Entitlement to service connection for kidney disease on a
direct basis or as secondary to the service-connected
disability of hypertension is denied.

Entitlement to service connection for prostate disease on a
direct basis or as secondary to the service-connected
disability of hypertension is denied.

____________________________________________
C.W. Symanski
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: K PARAKKAL

condition: tinnitus

text:
Citation Nr: 0630000
Decision Date: 09/22/06    Archive Date: 10/04/06

DOCKET NO.  04-01 669	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan

THE ISSUE

Entitlement to separate 10 percent disability ratings for
bilateral tinnitus.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Elizabeth Jalley, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1963 to February
1965, from January 1967 to January 1971, and from October
1973 to January 1991.

This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a January 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.

FINDING OF FACT

The veteran's service-connected bilateral tinnitus is
assigned a 10 percent rating, the maximum rating authorized
under Diagnostic Code 6260.

CONCLUSION OF LAW

There is no legal basis for the assignment of separate 10
percent disability ratings for the veteran's tinnitus
disability.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R.
� 4.87, Diagnostic Code 6260 (2005); Smith v. Nicholson, 451
F.3d 1344 (Fed. Cir. 2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Tinnitus is evaluated under Diagnostic Code 6260, which was
revised effective
June 23, 2003, to clarify existing VA practice that only a
single 10 percent evaluation is assigned for tinnitus,
whether the sound is perceived as being in one ear, both
ears, or in the head.  38 C.F.R. � 4.87, Diagnostic Code
6260, note 2 (2005).

In Smith v. Nicholson, 19 Vet. App. 63 (2005), the U. S.
Court of Appeals for Veterans Claims (Court or Veterans
Court) reversed a Board decision that found that, under pre-
June 2003 regulations, no more than a single 10 percent
rating could be provided for tinnitus, whether perceived as
bilateral or unilateral.  The Court held that pre-1999 and
pre-June 23, 2003, versions of Diagnostic Code 6260 required
that VA assign dual 10 percent ratings for "bilateral"
tinnitus where it was perceived as affecting both ears.

VA appealed the Court's decision in Smith to the United
States Court of Appeals for the Federal Circuit (Federal
Circuit).  To avoid burdens on the adjudication system,
delays in the adjudication of other claims, and unnecessary
expenditure of resources based on court precedent that may
ultimately be overturned on appeal, the Secretary imposed a
stay at the Board on the adjudication of tinnitus claims
affected by Smith.  The specific claims affected by the stay
essentially included all claims in which a claim for
compensation for tinnitus was filed prior to June 13, 2003,
and a disability rating for tinnitus of greater than 10
percent was sought.

Recently, the Federal Circuit reversed the Veterans Court's
decision in Smith, and affirmed VA's long-standing
interpretation of 38 C.F.R. � 4.25(b) and Diagnostic Code
6260 as authorizing only a single 10 percent rating for
tinnitus, whether perceived as unilateral or bilateral.
Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  Citing
Supreme Court precedent, the Federal Circuit explained that
an agency's interpretation of its own regulations was
entitled to substantial deference by the courts as long as
that interpretation was not plainly erroneous or inconsistent
with the regulations.  Id. at 1350-1351.  Finding that there
was a lack of evidence in the record suggesting that VA's
interpretation of � 4.25(b) and Diagnostic Code 6260 were
plainly erroneous or inconsistent with the regulations, the
Federal Circuit concluded that the Court erred in not
deferring to VA's interpretation.

As a consequence of that holding, on July 10, 2006, the
Secretary rescinded the stay that had been imposed on all
claims affected by Smith, and directed the Board to resume
adjudication of the previously stayed claims consistent with
VA's longstanding interpretation that a single 10 percent
disability rating is the maximum rating available under
Diagnostic Code 6260, regardless of whether the tinnitus is
perceived as unilateral or bilateral.

In view of the foregoing, the Board concludes that the
version of Diagnostic Code 6260 in effect prior to June 2003
precludes an evaluation in excess of a single 10 percent for
tinnitus.  Therefore, the veteran's claim for separate 10
percent ratings for each ear for his service-connected
tinnitus must be denied under both the new and old versions
of the regulation.  As the disposition of this claim is based
on the law, and not the facts of the case, the claim must be
denied based on a lack of entitlement under the law.  See
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Therefore, because no reasonable possibility exists that
would aid in substantiating this claim, any deficiencies of
VCAA notice or assistance are rendered moot.  See 38 U.S.C.A.
� 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001)
(compliance with the VCAA is not required if no reasonable
possibility exists that any notice or assistance would aid
the appellant in substantiating the claim).

ORDER

Entitlement to separate 10 percent disability ratings for
bilateral tinnitus is denied.

____________________________________________
K. Parakkal
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


condition: back

text:
Citation Nr: 0631000
Decision Date: 10/02/06    Archive Date: 10/10/06

DOCKET NO.  02-10 771A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a low back condition.

REPRESENTATION

Appellant represented by:	Alabama Department of Veterans
Affairs

WITNESS AT HEARING ON APPEAL

The Veteran and Spouse

ATTORNEY FOR THE BOARD

Daniel Markey, Associate Counsel

INTRODUCTION

The veteran had active service from March 1967 to January
1970.

The matter is before the Board of Veterans' Appeals (Board)
from a rating decision promulgated by the Department of
Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama, in April 2002, which denied the claim.

The veteran provided testimony at a Travel Board hearing
conducted by the undersigned Veterans Law Judge in June 2005,
a transcript of which is of record.

When the case was previously before the Board, the claim was
remanded for additional development.  That development has
been completed to the extent possible, and the case returned
to the Board for further consideration of the veteran's
appeal.

FINDINGS OF FACT

1.  All reasonable development and notification necessary for
an equitable disposition of the instant case has been
completed.

2.  A chronic low back condition was not present in service
or for many years thereafter.

3.  The preponderance of the competent medical evidence is
against a finding that the veteran's current low back
condition is causally related to his active service.

CONCLUSION OF LAW

A low back disability was not incurred in or aggravated by
active service.  38 U.S.C.A. �� 1110 (West 2002); 38 C.F.R. �
3.303 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002) redefined VA's duty to assist the veteran in the
development of a claim.  VA regulations for the
implementation of the VCAA were codified as amended at
38 C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2006).

The notice requirements of the VCAA require VA to notify the
veteran of any evidence that is necessary to substantiate his
claim, as well as the evidence VA will attempt to obtain and
which evidence he is responsible for providing.  Quartuccio
v. Principi, 16 Vet. App. 183 (2002).  The requirements apply
to all five elements of a service connection claim: veteran
status, existence of a disability, a connection between the
veteran's service and the disability, degree of disability,
and effective date of the disability.  Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).  Such notice must be
provided to a claimant before the initial unfavorable
decision on a claim for VA benefits by the agency of original
jurisdiction (in this case, the RO).  Id; see also Pelegrini
v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA
notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant.  Id.

In this case, in September 2003 and September 2005 letters,
the RO provided notice to the veteran regarding what
information and evidence is needed to substantiate the claim,
as well as what information and evidence must be submitted by
the veteran, what information and evidence will be obtained
by VA, and the need for the veteran to advise VA of or submit
any further evidence that pertains to the claim.

The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran.  Specifically, the information and evidence that
have been associated with the claims file includes the
veteran's service medical records, service personnel records,
private medical records, VA treatment records and examination
reports, and the hearing transcript.

As discussed above, the VCAA provisions have been considered
and complied with.  The veteran was notified and aware of the
evidence needed to substantiate this claim, the avenues
through which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence.  There is no indication that there
is additional evidence to obtain, there is no additional
notice that should be provided, and there has been a complete
review of all the evidence without prejudice to the
appellant.  As such, there is no indication that there is any
prejudice to the appellant by the order of the events in this
case.  See Pelegrini, supra; Bernard v. Brown, 4 Vet. App.
384 (1993).  Moreover, as the Board concludes below that the
preponderance of the evidence is against the appellant's
claim for service connection, any question as to an
appropriate evaluation or effective date to be assigned is
rendered moot.  Any error in the sequence of events or
content of the notice is not shown to have any effect on the
case or to cause injury to the claimant.  Thus, any such
error is harmless and does not prohibit consideration of this
matter on the merits.  See Dingess, supra; see also ATD Corp.
v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

The Board has reviewed all the evidence in the appellant's
claims file, which includes: his contentions, service medical
records, service personnel records, VA medical records, VA
examination reports, private medical records, and the hearing
transcript.  Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the appellant
or obtained on his behalf be discussed in detail.  Rather,
the Board's analysis below will focus specifically on what
evidence is needed to substantiate a claim for service
connection, and what the evidence in the claims file shows,
or fails to show, with respect to this claim.  See Gonzales
v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and
Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In this case, the veteran claims that his current low back
condition was caused by lifting activities during active
service.

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38
C.F.R. � 3.303 (2006).  Evidence of continuity of
symptomatology from the time of service until the present is
required where the chronicity of a condition manifested
during service either has not been established or might
reasonably be questioned.  38 C.F.R. � 3.303(b).  Regulations
also 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
disability was incurred in service.  38 C.F.R. � 3.303(d).
Service incurrence will be presumed for certain chronic
diseases, including arthritis, if manifest to a compensable
degree within the year after active service.  38 U.S.C.A. ��
1101, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.

In order to establish service connection for the claimed
disorder, 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, 253
(1999).

The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. � 7104(a) (West 2002); Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. � 3.303(a) (2005).
When there is an approximate balance of positive and negative
evidence regarding a material issue, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
38 U.S.C.A. � 5107(b) (West 2002); Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. �� 3.102 (2005).
If the Board determines that the preponderance of the
evidence is against the claim, it has necessarily found that
the evidence is not in approximate balance, and the benefit
of the doubt rule is not applicable.  Ortiz, 274 F.3d at
1365.

While the evidence does show that the veteran has a current
low back condition, the weight of competent medical evidence
indicates that this condition was not present during service
or caused by incidents of service.  For the reasons that
follow, service connection for a low back condition is
denied.

Service medical records reveal a single episode of low back
pain in November 1969.  Impression was lumbar strain.  X-ray
images taken that day were negative.  The veteran was placed
on 48 hours of light duty and there is no follow up treatment
for this condition.  At discharge, the veteran denied
arthritis or recurrent back pain.  His discharge physical
examination was likewise negative for any back condition.
There is no evidence contemporaneous to service showing the
veteran was injured or suffered from anything other than the
acute back strain noted in November 1969 service medical
records.

In November 2001, the veteran underwent a VA spine
examination.  Service history was discussed and the veteran
stated that he did a lot of heavy lifting while in service.
Notes indicate that the veteran did not recall seeking
medical attention for his condition while in service.  The
veteran's chief complaint centered on back pain, which was
said to be increasing over the years.  A 2001 x-ray report
indicates that the veteran's spine and disc spaces are
normal.  No evidence of fracture or acute injury was shown.
After a comprehensive physical examination, the veteran was
diagnosed with chronic lumbar syndrome of uncertain etiology.
This examination is the first documented medical evidence of
an abnormality in the veteran's lower back, and it is dated
more than 30 years following the veteran's discharge.  See
Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (The normal
medical findings at the time of separation from service, as
well as the absence of any medical records of a diagnosis or
treatment for many years after service is probative evidence
against the claim.).

Private outpatient records from November 2001 through May
2002 show continued complaints of back pain.  VA outpatient
records from May 2002 also show the veteran's complaints of
lumbar pain.  A psychiatric consultation report received in
November 2004 indicates the veteran giving a history of a
back injury in service, and that he currently has difficulty
with his back.

In correspondence received May 2002, the veteran indicated
that he was buried in sandbags following an explosion.  He
also stated that he had to carry the bodies of dead enemy
soldiers.  As noted above, however, there is no evidence in
service medical or personnel records that these incidents
caused injury.

The veteran gave testimony at his June 2005 hearing before
the Board, but nothing revealed by the transcripts or
subsequent development adds probative weight to the veteran's
claim.  The veteran testified that his back was normal before
service, and that he hurt his back carrying radios, rations,
and ammunition, presumably in Vietnam.  He also testified
that his back was "minor-aggravated" and that he made it
through Vietnam with over the counter medication.  He stated
that the lifting continued when he returned stateside.
Within a year following service, the veteran reported seeing
a private physician, but acknowledged that these records
could not be located.  He later testified that the physician
diagnosed him with a back strain or a pulled muscle.

The veteran's spouse also testified that she met him about
two years following service, and that the veteran complained
to her of back pain during that time.  She also noted that
the veteran said he hurt his back in service.  While she is
competent to testify about what she heard, neither the
veteran's contention about an in service injury or her
recounting of his comments 35 years prior can be considered
competent medical evidence of a service etiology for the
veteran's current back condition.  Jones v. Brown, 7 Vet.
App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492
(1992) (When the determinative issue involves a question of
medical diagnosis or causation, only individuals possessing
specialized training and knowledge are competent to render
such an opinion.)  In this regard, the veteran's statements
regarding his claimed disabilities are not supported by the
objective medical evidence of record.  The veteran's wife
further testified that his pain has waxed and waned over the
years, and that she cannot recall how much medication he took
closer to service.  Subsequent testimony revealed that the
veteran had a post-service occupational history that included
electrical and construction work.  None of this testimony is
competent medical evidence which can serve to relate the
current disability to service.

In April 2006, a VA examiner rendered an opinion on the
veteran's disability claim.  The veteran's claims file was
reviewed and pertinent service and medical history were
discussed.  The examiner noted the veteran's prior VA spine
examination and stated that a review of the record revealed
no medical evidence establishing chronicity or continuity of
treatment.  He then opined "it is not as likely as not that
he has a back condition which is causally related to active
service."  As the veteran's claims file was reviewed
thoroughly, the Board finds this opinion to be highly
probative evidence against the veteran's claim.

In summary, there is no evidence of a chronic low back
condition in service or for many years thereafter.  Competent
medical evidence indicates only that the veteran has a
current chronic lumbar syndrome, but there is no competent
medical evidence linking this condition to service.  See
Hickson, supra.  Accordingly, service connection for a low
back condition is denied.

In reaching the conclusions above the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not applicable in the
instant appeal.  See generally Gilbert v. Derwinski, 1 Vet.
App. 49 (1990); Ortiz, 274 F. 3d at 1365 (Fed. Cir. 2001).

ORDER

Entitlement to service connection for a low back condition is
denied.

____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: K OSBORNE

text:
Citation Nr: 0632000
Decision Date: 10/16/06    Archive Date: 10/25/06

DOCKET NO.  04-04 268	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine

THE ISSUE

Entitlement to a disability rating in excess of 10 percent
for bilateral tinnitus.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel

INTRODUCTION

The veteran served on active duty from November 1989 to
November 1994 and from March 1995 to May 1999.

This matter comes to 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
Togus, Maine.

FINDING OF FACT

The veteran's service-connected (bilateral) tinnitus is
assigned a 10 percent rating, the maximum rating authorized
under Diagnostic Code 6260.

CONCLUSION OF LAW

There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for bilateral tinnitus.
38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.87, Diagnostic
Code 6260 (2005); Smith v. Nicholson, 451 F.3d 1344 (Fed.
Cir. 2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist the Veteran

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)
(West 2002 & Supp. 2005); 38 C.F.R. � 3.159(b) (2005);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In the instant case the facts are not in dispute.  Resolution
of the veteran's appeal is dependent on interpretation of the
regulations pertaining to the assignment of disability
ratings for tinnitus.  As will be shown below, the Board
finds that the veteran is already receiving the maximum
disability rating available for tinnitus under the applicable
rating criteria.  Furthermore, regardless of whether the
veteran's tinnitus is perceived as unilateral or bilateral,
the outcome of this appeal does not change.

Therefore, because no reasonable possibility exists that
would aid in substantiating this claim, any deficiencies of
VA's notice or assistance duties are rendered moot.  See 38
U.S.C.A. � 5103A; Wensch v. Principi, 15 Vet. App. 362, 368
(2001) (compliance with VA's duties to notify and assist a
claimant is not required if no reasonable possibility exists
that any notice or assistance would aid the appellant in
substantiating the claim).

Analysis

The veteran requested an increased evaluation for tinnitus,
specifically a 10 percent evaluation for each ear.  The RO
denied the veteran's request because under Diagnostic Code
(DC) 6260 there is no provision for assignment of a separate
10 percent evaluation for tinnitus of each ear.  The veteran
appealed that decision to the Board.

In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S.
Court of Appeals for Veterans Claims (CAVC) held that the
pre-1999 and pre-June 13, 2003 versions of DC 6260 required
the assignment of dual ratings for bilateral tinnitus.  VA
appealed this decision to the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) and stayed the adjudication
of tinnitus rating cases affected by the Smith decision.  In
Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the
Federal Circuit concluded that the CAVC erred in not
deferring to the VA's interpretation of its own regulations,
38 C.F.R. � 4.25(b) and Diagnostic Code 6260, which limits a
veteran to a single disability rating for tinnitus,
regardless whether the tinnitus is unilateral or bilateral.
Subsequently, the stay of adjudication of tinnitus rating
cases was lifted.

The veteran's service-connected tinnitus has been assigned
the maximum schedular rating available for tinnitus.
38 C.F.R. �4.87, Diagnostic Code 6260.  As there is no legal
basis upon which to award separate schedular evaluations for
tinnitus in each ear, the veteran's appeal must be denied.
Sabonis v. Brown, 6 Vet. App. 426 (1994).  The provisions of
the statutes and regulations governing VA's duties to notify
and assistant a claimant have no effect on an appeal where
the law, and not the underlying facts or development of the
facts are dispositive in a matter.  Manning v. Principi, 16
Vet. App. 534, 542-543 (2002).

ORDER

A schedular evaluation in excess of 10 percent for tinnitus
is denied.

____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs