judge_norm: HILARY L GOODMAN

text:
Citation Nr: 9910000
Decision Date: 04/09/99    Archive Date: 04/29/99

DOCKET NO.  95-10 882	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to rating in excess of 10 percent for
bilateral pes planus.

2.  Entitlement to rating in excess of 10 percent for
bilateral retropatellar pain syndrome, to include the
assignment of a separate compensable rating for each knee.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

James A. Pritchett, Associate Counsel

INTRODUCTION

The veteran had active service from August 1991 to October
1994.

This matter came before the Board of Veterans' Appeals
(Board), on appeal from a rating decision by the Wichita,
Kansas Department of Veterans Affairs (VA) Regional Office
(RO).  In April 1997 the case was remanded for further
evidentiary development.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.

2.  The bilateral pes planus is manifested by subjective
complaints of pain with collapsed arches on standing; neither
swelling on use or characteristic callosities are
demonstrated.

3.  The retropatellar pain syndrome of each knee is
manifested by significant crepitus, subjective complaints of
pain and some limitation of functional ability without
deformity or X-ray evidence of arthritis.

CONCLUSIONS OF LAW

1.  The criteria for a disability rating greater than 10
percent for bilateral pes planus have not been met.  38
U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. �� 3.102, 4.1-
4.7, 4.21, 4.71a, Diagnostic Code 5276 (1998).

2.  The criteria for a disability rating greater than 10
percent for retropatellar pain syndrome of the right knee has
not been met.  38 U.S.C.A. �� 1155, 5107; 38 C.F.R. �� 3.102,
4.1-4.7, 4.21, 4.71a, Diagnostic Code 5257 (1998).
3.  The criteria for a disability rating greater than 10
percent for retropatellar pain syndrome of the left knee has
not been met.  38 U.S.C.A. �� 1155, 5107; 38 C.F.R. �� 3.102,
4.1-4.7, 4.21, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

The veteran had active service until October 1994, when he
was discharged with 10 disability severance pay for bilateral
pes planus.  He sought service connection for bilateral pes
planus and bilateral retropatellar pain syndrome.  In a
January 1995 rating decision, service connection was granted
for bilateral pes planus with a 10 percent disability
evaluation assigned and for bilateral retropatellar pain
syndrome with a non-compensable disability evaluation
assigned.

A September 1996 VA podiatry examination report states that
the veteran complained of morning foot aches that would get
worse with walking during the day.  He complained that his
feet would throb at night.  He was taking Motrin once or
twice a week for pain.

On examination the veteran's gait seemed to be normal, his
feet were normal in appearance, feet function was normal and
there were no secondary skin or vascular changes.  He
complained of pain in the balls of his feet on heel walking.
His pedal pulses were 2/4 and his feet were warm and pink.
He complained of bilateral knee pain on heel walking, and to
a lesser degree, on toe walking.  The veteran's arches were
90 percent flat to the floor when standing.  The X-rays were
negative for evidence of a fracture, dislocation or bone
destruction.  The diagnosis was mild pes planus bilaterally.

A September 1996 VA orthopedic examination report states that
the veteran complained of increased knee pain in the evenings
and at night, depending on how much he walked during the day.
On examination the veteran's knees appeared normal and were
cool to touch with no sign of effusion or swelling.  There
was no drawer and no Lachman's sign.  He had some slight
lateral and medial laxity.  The knee jerk was 1/4
bilaterally.  Flexion of each knee was to 142 degrees and
extension of each knee was to 0 degrees.  The X-rays showed
that the joint spaces were well maintained.  No dislocation
or bone destruction was noted.  The diagnosis was
retropatellar pain, bilateral knees.

By rating decision dated in October 1996, the 10 percent
rating for bilateral pes planus was continued and a 10
percent evaluation was assigned for bilateral retropatellar
pain syndrome.

An August 1997 VA podiatry examination report states that the
veteran complained of pain on walking and standing and
terrible throbbing pain at night.  He stated that prolonged
standing would increase the pain.  The pain was mainly under
the balls of the feet, under the heels and at the level of
the ankle, mainly over the lateral aspect of the foot just
distal to the ankle.  He was not wearing his Army prescribed
inserts as he claimed that they added to his foot pain.

On examination the veteran's standing position and gait were
normal.  He could squat.  He had a heel-toe gait.  His arches
were nice when in a non-weight bearing position; they
collapsed when he stood.  His feet appeared normal and well
aligned without swelling or increased redness or warmth.
There was no deformity other than the collapsing arches.
Dorsiflexion of the ankles was reported to be normal, about
20 degrees.  Plantar flexion was to 30 degrees, inversion and
eversion were to 20 degrees bilaterally.  There were no
calluses under the soles, the balls or the heels of his feet.
No secondary skin and vascular changes were noted.  His
pulses were normal as was his capillary refill.

The diagnosis was painful, symptomatic feet bilaterally.  The
examiner noted that the X-ray did not fit the amount and
intensity of the veteran's complaints but that it was very
hard to have a strict correlation between pain and X-rays.
No weakness of the joint or of the musculature of the feet
was observed.  The examiner did not believe that there was
any incoordination factor related to the veteran's flat feet.
He did note that fatigability might be a factor related to
his pain.

An April 1998 VA orthopedic examination report states that
the veteran complained of knee pain and that his knees would
go to sleep on him.  On examination he presented with
bilateral retropatellar pain.  There was no swelling or fixed
deformity.  He had full range of motion of the knees.  There
was no medial lateral instability.  The McMurray and
Lachman's signs were negative.  Pain was present on pressure
of the patella and the femur.  Significant crepitance was
noted on flexion and extension over the patellofemoral joint.
No popliteal cysts were present and there were no masses in
the popliteal space.  Quadriceps strength was 5+ and his
pulses and sensation were normal.  The X-rays were negative
for evidence of arthritis.  The joint spaces were well
preserved.  There was no erosion of the cartilage, no spurs,
cystic lesions, sclerosing margins or subcondyle margin.

The examiner stated that the veteran had clinical
chondromalacia of bilateral patellofemoral joints with normal
symptoms with significant crepitance that he believed would
limit the veteran from repetitious squatting, stair climbing,
continuous walking and continuous walking with an excessive
load, i.e. 20 to 30 pounds.  The examiner noted that the
veteran would be able to perform a job that allowed him to
alternate between sitting, standing, climbing stairs, etc.

Analysis

When a claimant is awarded service connection for a
disability and subsequently appeals the RO's initial
assignment of a rating for that disability, the claim
continues to be well-grounded as long as the rating schedule
provides for a higher rating and the claim remains open.
Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).

Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity.  Separate diagnostic codes identify the
various disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.
When a question arises as to which of two evaluations shall
be assigned, 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.
Bilateral Pes Planus
Bilateral pes planus or flat feet is rated as follows:
pronounced; marked pronation, extreme tenderness of plantar
surfaces of the feet, marked inward displacement and severe
spasm of the tendo achillis on manipulation, not improved by
orthopedic shoes or appliances, warrants a 50 percent rating.
Severe; flat feet with objective evidence of marked deformity
(pronation, abduction, etc.), pain on manipulation and use
accentuated, indication of swelling on use, characteristic
callosities warrants a 30 percent rating.  Moderate flat feet
with weight-bearing line over or medial to great toe, inward
bowing of the tendo achillis, pain on manipulation and use of
the feet warrants a 10 percent rating.  Mild flat feet;
symptoms relieved by built-up shoe or arch support warrants a
noncompensable evaluation.  38 C.F.R. � 4.71a, Diagnostic
Code 5276.

On the initial VA examination the veteran's gait seemed to be
normal, his feet were normal in appearance, feet function was
normal and there were no secondary skin or vascular changes.
At the more recent examination, the veteran's feet were again
normal in appearance, without swelling, deformity or
increased redness or warmth.  No callosities were present
anywhere on the veteran's feet.  The record is negative for
evidence of tenderness on the plantar surfaces of the
veteran's feet.  The only abnormality noted was his collapsed
arches.

The examiner specifically stated that there was no weakness
of the joint or the musculature of the feet.  He also
specifically stated that he did not believe that there was
any incoordination factor attributable to the veteran's pes
planus.  He did note that fatigability might be related to
the veteran's pain.  However, he also noted that the
veteran's X-rays did not correlate with the amount of pain
the veteran claimed to have.  The record is negative for
evidence of deformity, pain on manipulation or callosities
necessary for a higher evaluation under Diagnostic Code 5276.

In this case, while the veteran complained of pain associated
with the disability at issue, "a finding of functional loss
due to pain must be 'supported by adequate pathology and
evidenced by the visible behavior of the claimant.  38 C.F.R.
� 4.40."  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).
While the veteran subjectively complained of pain, the
pathology and objective observations of the claimant's
behavior do not satisfy the requirements for a higher
evaluation.  Thus, the Board finds that 38 C.F.R. �� 4.40,
4.45, and 4.59 do not provide a basis for a higher rating.

The Board has considered the assertion by the veteran's
representative that the examination did not follow the
directions of the remand.  See Stegall v. West, 11 Vet App
268 (1998).  However, as noted above, the examiner
specifically addressed incoordination, fatigability, weakness
and their affects on the veteran's feet.  The examination
fully complied with the remand and was sufficient for fairly
evaluating the severity of the veteran's bilateral pes
planus.

Bilateral Retropatellar Pain Syndrome

The veteran is currently in receipt of a 10 percent
disability evaluation under Diagnostic Code 5257 for
bilateral retropatellar pain syndrome.  The Board is in
agreement with the representative's assertion that a separate
disability evaluation should be assigned for each knee and,
based upon the evidence of record, will consider the rating
to be assigned.  A 10 percent disability evaluation is for
assignment under Diagnostic Code 5257 for slight impairment
of a knee with recurrent subluxation or lateral instability
and a 20 percent disability evaluation is available for
moderate impairment of a knee with recurrent subluxation or
lateral instability.  38 C.F.R. � 4.71a, Diagnostic Code
5257.

Rating the veteran's knee disabilities under alternative
Diagnostic Codes must also be considered: under Diagnostic
Code 5258 a dislocated semilunar cartilage with frequent
episodes of "locking," pain, and effusion into the joint
warrants a 20 percent evaluation and under Diagnostic Code
5259 removal of the semilunar cartilage warrants a 10 percent
evaluation if symptomatic.
Under Diagnostic Code 5260 flexion limited to 30 degrees
warrants a 20 percent evaluation and flexion limited to 45
degrees warrants a 10 percent evaluation.  If flexion is
limited to 60 degrees a noncompensable evaluation is for
assignment.  Under Diagnostic Code 5261 limitation of
extension of the leg to 15 degrees warrants a 20 percent
evaluation, limitation of extension to 10 degrees warrants a
10 percent evaluation and a noncompensable evaluation is for
assignment if extension is limited to 5 degrees.

While the veteran has complained of pain in the knees, in the
case of Johnson v. Brown, 9 Vet. App. 7 (1996), the United
States Court of Appeals for Veterans Claims (known as the
United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter, the Court) stated that Diagnostic Code
5257 is not predicated on loss of range of motion and that
therefore 38 C.F.R. �� 4.40 and 4.45 (pain) do not apply.

However, in VA General Counsel precedent opinion VAOPGCPREC
23-97, VA's General Counsel determined that where, as in the
instant case, a knee disorder is already rated under
diagnostic code 5257, a separate rating may be considered
under Diagnostic Code 5003 for arthritis where there is
limitation of motion under diagnostic code 5260 or 5261.
Further, if the veteran does not at least meet the criteria
for a zero percent (noncompensable) evaluation under either
of those two codes, there is no additional disability for
which a rating may be assigned.

The Board has considered the provisions of Diagnostic Code
5003 concerning degenerative arthritis.  However, the April
1998 examination report states that the X-rays were negative
for any sign of arthritis.  Therefore a separate rating under
Diagnostic Code 5003 is not for assignment.

On the September 1996 VA examination slight lateral and
medial laxity of the knees was found, supporting the
assignment of a 10 percent disability evaluation for each
knee.  However, as the April 1998 examination report states
that there was no medial instability, a higher evaluation
under Diagnostic Code 5257 is not for assignment.  The
veteran's range of motion was from 0 degrees to 142 degrees.
Since there was no limitation of flexion or extension, nor
have any problems with cartilage been identified, an
evaluation in excess of 10 percent for either knee is not
warranted under Diagnostic Code 5258, 5260 or 5261.

The Board finds that the veteran's disability picture does
not approximate the criteria necessary for a higher
disability evaluation.  38 C.F.R. � 4.7.  Therefore, the
Board is compelled to conclude that the weight of the
evidence is against the veteran's remaining claims and an
evaluation in excess of 10 percent for bilateral pes planus
or for retropatellar pain syndrome of either knee is not
warranted.  The Board has carefully reviewed the entire
record in this case; however, the Board does not find the
evidence to be so evenly balanced that there is any doubt as
to any material issue.  38 U.S.C.A. � 5107.

ORDER

Entitlement to a separate compensable disability evaluation
for each knee is granted.

Entitlement to an evaluation in excess of 10 percent for
bilateral pes planus is denied.

Entitlement to an evaluation in excess of 10 percent for
retropatellar pain syndrome of the left knee is denied.

Entitlement to an evaluation in excess of 10 percent for
retropatellar pain syndrome of the right knee is denied.

	HILARY L. GOODMAN
	Acting Member, Board of Veterans' Appeals


series: legacy

judge_norm: WARREN W RICE, JR

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text: Entitlement to compensation based upon residuals of a head injury pursuant to 38 U.S.C.A. § 1151 is denied.

text:
Citation Nr: 9911000
Decision Date: 04/21/99    Archive Date: 04/30/99

DOCKET NO.  98-05 858	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa

THE ISSUE

Entitlement to compensation resulting from an injury incurred
during Department of Veterans Affairs nursing home care under
the provisions of 38 U.S.C.A. � 1151.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

Appellant's wife and [redacted]

ATTORNEY FOR THE BOARD

Robert W. Legg, Associate Counsel

INTRODUCTION

This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an October 1997 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Des Moines, Iowa, which denied the benefit sought.  The
veteran had active service from April 1943 to March 1945.  In
October 1996, the veteran was deemed incompetent for VA
purposes.  His wife, the veteran's guardian, appealed the
rating decision.

FINDING OF FACT

In April 1995, at a Nursing Home Care Unit at the VA medical
center in Knoxville, Iowa, the veteran fell, suffering a head
injury.

CONCLUSION OF LAW

There is no legal merit to the appellant's claim for
compensation benefits under 38 U.S.C.A. � 1151 as a result of
the veteran's fall.  38 U.S.C.A. �� 1151, 5107 (West 1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

The facts in this case are not in dispute.  The veteran, who
had been diagnosed with degenerative dementia, was a resident
of the Nursing Home Care Unit at the VA medical center in
Knoxville, Iowa, in April 1995.  On April 8, 1995, while
ambulating to the bathroom, the veteran fell over backwards,
striking his head.  This resulted in a subdural hematoma,
which was then treated at the VA medical center in Iowa City.
As part of this claim, the veteran was provided a VA
examination in March 1997.  The examiner stated that the
veteran had an Alzheimer-type dementia, and that the April
1995 fall produced a superimposed brain injury in addition to
the dementia.  The claims file contains treatment records
pertaining to the veteran's treatment of both his dementia
and the residuals of the fall.

In July 1998, the veteran's wife, his guardian, sitting at
the RO in Des Moines, was provided a videoconference hearing,
with the undersigned Member of the Board sitting in
Washington, D.C.  She related the veteran's current
symptomatology and the events surrounding the fall.  In
addition, she submitted a videotape of the veteran, and
waived RO consideration of this evidence.  38 C.F.R.
� 20.1304(c) (1998).  This videotape has been reviewed by the
Board, and showed the veteran's level of functioning.

Initially, this claim is not to be determined on a "well
grounded" basis.  The United States Court of Appeals for
Veterans Claims (Court) has "noted that the use of the term
'well-grounded' should be confined to an evidentiary context.
'[W]here the law and not the evidence is dispositive, the
claim should be denied or the appeal to the BVA terminated
because of the absence of legal merit or the lack of
entitlement under the law'."  See Shields v. Brown, 8 Vet.
App. 346, 351-352 (1995) [citing Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994)].

The appellant's claim is premised on 38 U.S.C.A. � 1151 (West
1991), which provides that where a veteran suffers an injury
or an aggravation of an injury resulting in additional
disability by reason of VA hospital, medical or surgical
treatment, or vocational rehabilitation, compensation shall
be awarded in the same manner as if such disability were
service connected.  She implicitly asserts that the veteran's
stay at the VA nursing home at the time of his fall in April
1995 falls within the rubric of VA hospital or medical
treatment.  As such, she contends that the veteran's fall at
the nursing home is within the scope of 38 U.S.C.A. � 1151.

However, the term "nursing home care" has been defined by
statute as the accommodation of convalescents or other
persons who are not acutely ill and not in need of hospital
care, but who require nursing care and related medical
services, if such nursing care and medical services are
prescribed by, or are performed under the general direction
of, persons duly licensed to provide such care.  Such term
includes services furnished in skilled nursing care
facilities, in intermediate care facilities, and in combined
facilities.  It does not include domiciliary care.
38 U.S.C.A. � 101(28) (West 1991).  Thus, by definition,
nursing home care is separate and distinct from
hospitalization, and hence, the veteran's tenure at the VA
Nursing Home Care Unit in Knoxville at the time of his April
8, 1995, fall is not the equivalent of VA hospitalization.
Accordingly, a grant of compensation under 38 U.S.C.A. � 1151
for VA hospitalization is not warranted as a matter of law.

In the alternative, the question remains as to whether the
veteran's tenure at the VA Nursing Home Care Unit in
Knoxville can be construed as VA medical treatment.  A review
of nursing notes immediately prior to his April 8, 1995, fall
does not show that the veteran was receiving VA medical
treatment for any acute medical illness at that time.
Rather, it appears that the veteran was actually residing
there due to his Alzheimer's-form of dementia.  Further
review of the record does not show that the veteran's
dementia was being treated as a disease entity by the VA at
the time, with the ultimate goal of reducing symptomatology
or eradicating the disease.  Looking at the veteran's time at
the VA Nursing Home Care Unit in context, it is clear that
the goal was rather to make the remaining time of the veteran
as comfortable as possible.  Thus, the Board finds that the
veteran was not receiving VA treatment within the rubric of
38 U.S.C.A. � 1151.

In light of the fact that the veteran was not receiving VA
hospital, medical or surgical treatment, or vocational
rehabilitation at the time of his fall, the veteran's injury
is not amenable to compensation under 38 U.S.C.A. � 1151.
Accordingly, the Board concludes that there is no legal basis
for a grant of compensation.  As the preponderance of the
evidence is against the claim, the benefit-of-the-doubt rule
is not for application.  38 U.S.C.A. � 5107 (b)(West 1991).

ORDER

Entitlement to compensation based upon residuals of a head
injury pursuant to 38 U.S.C.A. � 1151 is denied.

	WARREN W. RICE, JR.
	Member, Board of Veterans' Appeals


judge_norm: ROBERT P REGAN

disposition: remanded

text:
Citation Nr: 9912000
Decision Date: 04/30/99    Archive Date: 05/06/99

DOCKET NO.  98-06 581	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUE

Entitlement to an increased evaluation for post-traumatic
stress disorder, currently rated as 50 percent disabling.

REPRESENTATION

Appellant represented by:	James W. Stanley, Jr.,
Attorney

WITNESSES AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Pickard, Associate Counsel

INTRODUCTION

The veteran served on active duty from November 1967 to
November 1969.

This appeal arises before the Board of Veterans' Appeals
(Board) of the Department of Veterans Affairs (VA) from a
rating decision of December 1996 from the North Little Rock,
Arkansas, Regional Office (RO).  The sole issue on appeal
concerns entitlement to an increased evaluation for post-
traumatic stress disorder (PTSD).

REMAND

The veteran's contentions regarding the increase in severity
of his service-connected PTSD constitutes a well-grounded
claim.  Proscelle v. Derwinski, 2 Vet.App. 629 (1992).
Therefore, the VA has a statutory obligation to assist him in
the development of his claim.  38 U.S.C.A. � 5107(a) (West
1991).

In this regard, while the case was pending before the Board,
the veteran submitted information from his employed which
indicates that he had been granted a temporary leave of
absence.  The RO has not had the opportunity to review this
pertinent information in conjunction with the veteran's
current claim.

The regulations pertaining to rating psychiatric disabilities
were revised effective November 7, 1996.  Where the law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial appeal process has
been concluded, the version most favorable to the appellant
will apply unless Congress provided otherwise or permitted
the Secretary of Veterans Affairs (Secretary) to do
otherwise, and the Secretary did so.  Karnas v. Derwinski, 1
Vet.App. 308, 313 (1991).

Accordingly, the case is REMANDED for the following actions:

1.  The RO should furnish the veteran the
appropriate release of information forms
in order to obtain all VA and private
medical records pertaining to recent
treatment for his service-connected
psychiatric disability.  The RO should
then obtain all records, which are not on
file.

2.  The RO should request the VA medical
facility in Little Rock, Arkansas, to
furnish copies of any additional medical
records covering the period from April
1998 to the present.

3.  A VA social and industrial survey
should be performed in order to determine
the impact the veteran's psychiatric
disorder has on his social and industrial
adaptability.  The claims folder should
be reviewed in conjunction with the
survey.

4.  A VA examination by a psychiatrist
should be conducted in order to determine
the severity of the service- connected
PTSD.  All necessary tests and studies
deemed necessary should be conducted.
The examiner should express an opinion on
the extent to which PTSD affects the
veteran's occupational and social
functioning.  It is requested that the
examiner include a Global Assessment of
Functioning score with an explanation of
the numeric code assigned.  The claims
folder must be made available to the
physician for review in conjunction with
the examination.

5.  The RO should inform the veteran of
the consequences for failure to report
for a scheduled VA examination per 38
C.F.R. � 3.655 (1998).

6.  Thereafter, the case should be
reviewed by the RO.  If the decision
remains adverse to the veteran, he and
his representative should be furnished
with a supplemental statement of the case
and an opportunity to respond.

Thereafter, the case should be returned to the Board for
appellate consideration, if otherwise in order. The Board
intimates no opinion as to the ultimate outcome of this case.
The veteran need not take any action unless he is further
informed.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner.  See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. � 5101 (West Supp. 1998) (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.

	ROBERT P. REGAN
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999).
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) (1998).


judge_norm: W R HARRYMAN

disposition: dismissed

text: The appeal is dismissed.

text:
Citation Nr: 9913000
Decision Date: 05/12/99    Archive Date: 05/21/99

DOCKET NO.  97-21 634	)	DATE
	)

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia

THE ISSUE

Entitlement to service connection for otitis media, otitis
externa, monocular diplopia, sinusitis, upper respiratory
infections, pharyngitis, and residuals of head concussions.

REPRESENTATION

Appellant represented by:	Virginia Department of Veterans
Affairs

FINDINGS OF FACT

1.	The veteran in this case served on active duty from
April 1975 to April 1995.

2.	On April 29, 1999, prior to the promulgation of a
decision in the appeal, the Board received notification from
the appellant that a withdrawal of this appeal is requested.

CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the
appellant have been met.
38 U.S.C.A. � 7105(b)(2), (d)(5) (West 1991); 38 C.F.R.
�� 20.202, 20.204(b), (c) (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under 38 U.S.C.A. � 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed.  A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision.  38 C.F.R. �� 20.202, 20.204(b)(1998).
Withdrawal may be made by the appellant or by his or her
authorized representative, except that a representative may
not withdraw a Substantive Appeal filed by the appellant
personally without the express written consent of the
appellant.  38 C.F.R. � 20.204(c)(1998).  The appellant has
withdrawn this appeal and, hence, there remain no allegations
of errors of fact or law for appellate consideration.
Accordingly, the Board does not have jurisdiction to review
the appeal and it is dismissed without prejudice.

ORDER

The appeal is dismissed.

W. R. Harryman
	Acting Member, Board of Veterans' Appeals

Error! Not a valid link.


judge_norm: R F WILLIAMS

condition: back

disposition: granted

text:
Citation Nr: 9914000
Decision Date: 05/21/99    Archive Date: 05/26/99

DOCKET NO.  98-06 468	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux
Falls, South Dakota

THE ISSUE

Entitlement to the a rating in excess of the initially
assigned 10 percent rating for degenerative disc disease of
the lumbar spine.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Kelli A. Kordich, Associate Counsel

INTRODUCTION

The veteran served on active duty from March 1977 to March
1997.

This matter come before the Board of Veterans' Appeals
(Board) on appeal from a July 1997 rating decision of the
Department of Veterans' Affairs (VA) Regional Office in Sioux
Falls, North Dakota (RO), which granted service connection
and assigned a 10 percent evaluation for degenerative disc
disease of the lumbar spine, effective from April 1, 1997 or
the day following the veteran's separation from service.

In light of the recent decision of the United States Court of
Appeals for Veterans Claims (Court) in Fenderson v. West, 12
Vet.App. 119 (1999), the Board has construed the issue before
it as first stated above.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.

2.  At the time of the veteran's original claim for
compensation, her degenerative disc disease of the lumbar
spine was manifested by no more than mild intervertebral disc
syndrome and no more than slight limitation of motion of the
lumbar spine with pain.

3.  On and after July 8, 1998, the veteran's degenerative
disc disease of the lumbar spine has been manifested by
moderate intervertebral disc syndrome with moderate,
recurring attacks, mild spasm in the right lower back region,
and no more than slight limitation of motion of the lumbar
spine.

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent, for
degenerative disc disease of the lumbar spine, from April 1,
1997 to July 7, 1998, have not been met.  38 U.S.C.A.
�� 1155, 5107 (West 1991); 38 C.F.R. �� 3.321(b)(1), 4.1-
4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5292, 5293 (1998).

2.  Since the veteran's VA examination July 8, 1998, the
criteria for a rating of 20 percent, but no greater, for
degenerative disc disease of the lumbar spine, have been met.
38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R.
�� 3.321(b)(1), 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes
5292, 5293 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran claims that her service-connected low back
disability is more disabling than currently evaluated.  This
is an original claim placed in appellate status by a notice
of disagreement (NOD) taking exception with the initial
rating award.  Accordingly, her claim must be deemed "well
grounded" within the meaning of 38 U.S.C.A. � 5107(a), and
VA's duty to assist arises.  See Fenderson v. West, 12
Vet.App. 119, 127 (U. S. Vet. App. Jan. 20, 1999) (applying
duty to assist under 38 U.S.C.A. � 5107(a) to initial rating
claims); cf. Caffrey v. Brown, 6 Vet.App. 377, 381 (1994)
(increased rating claims).  Under these circumstances, VA
must attempt to obtain all such medical evidence as is
necessary to evaluate the severity of the veteran's
disability from the effective date of service connection
through the present.  Fenderson, 12 Vet.App. at 125-127,
citing Goss v. Brown, 9 Vet.App. 109, 114 (1996); Floyd v.
Brown, 9 Vet.App. 88, 98 (1996); Green v. Derwinski, 1
Vet.App. 121, 124 (1991).  See also 38 C.F.R. � 4.2 (ratings
to be assigned "in the light of the whole recorded
history").  This obligation was satisfied by the
examinations described below, and the Board is satisfied that
all relevant facts have been properly and sufficiently
developed.

Disability evaluations are determined by evaluating the
extent to which the veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Ratings Disabilities (rating schedule).
38 U.S.C.A. � 1155; 38 C.F.R. �� 4.1, 4.2, 4.10.  If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that evaluation;
otherwise, the lower rating will be assigned.  38 C.F.R.
� 4.7.

In addition to applying schedular criteria, under 38 C.F.R.
�� 4.40 and 4.45, the VA is required to consider whether an
increased evaluation could be assigned on the basis of
functional loss due to pain or weakness, to the extent that
any such symptoms are supported by adequate pathology.  See
DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995).

The veteran contends that the evaluations assigned since July
1997 for degenerative disc disease of the lumbar spine do not
adequately reflect the severity of her back symptomatology in
that her disability has become worse and caused her to miss
time from work.

In May 1997, the veteran was afforded a VA examination which
showed: mild tenderness to palpation in the mid-lumbar spine;
no paraspinous spasm noted; straight leg raising caused
discomfort on the right at 80 degrees; full reflex, motor,
and sensory function of the lower extremities; pain on active
range of motion of the back with flexion; no evidence of
swelling or deformity.  Range of motion was flexion to 92
degrees, extension to 35 degrees, lateral flexion to 38/38
degrees, and rotation to 35/35 degrees.  X-rays revealed
moderate degree of narrowing of the L5-S1 intervertebral
space.

The RO has rated the veteran's degenerative disc disease,
lumbar spine under 38 C.F.R. � 4.71a, Diagnostic Code 5293 as
intervertebral disc syndrome (IDS), with a 10 percent rating
having been assigned from the day following her release from
active duty.  Under Diagnostic Code 5293, a 10 percent rating
is for assignment in cases with mild IDS.  A 20 percent
disability rating will be awarded if the manifestations of
IDS are "moderate" with "recurring attacks".  A 40 percent
rating contemplates severe, recurring attacks with
intermittent relief, and a 60 percent rating, the maximum
schedular rating provided for IDS, requires a pronounced
condition, with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings
appropriate to the site of the diseased disc, with little
intermittent relief.

After reviewing the medical evidence of record, the Board
concludes that a 10 percent rating for the veteran's
degenerative disc disease of the lumbar spine was appropriate
at the time of her separation from service, and at the time
the rating decision granting service connection for that
condition was issued in July 1997.  Post-service VA medical
records, discussed above, show pain and perhaps slight
limitation of motion, but no low back muscle spasms or
evidence of recurring attacks of neurological symptoms.
Evaluating the veteran's condition under Diagnostic Code
5293, there is certainly no evidence of more than mild IDS at
this time.

Consideration must be given to the potential application of
various other provisions of 38 C.F.R. Parts 3 and 4, however,
whether or not they were raised by the veteran.  See Suttmann
v. Brown, 5 Vet.App. 127, 133 (1993); Schafrath v. Derwinski,
1 Vet.App. 589, 592-593 (1991).  Accordingly, the Board also
has evaluated the veteran's condition under 38 C.F.R.
� 4.71a, Diagnostic Code 5295.  Diagnostic Code 5295,
provides a 10 percent rating for lumbosacral strain with
characteristic pain on motion.  A 20 percent evaluation
requires lumbosacral strain with muscle spasm on extreme
forward bending, loss of lateral spine motion, unilateral, in
standing position.  The medical records show that the
veteran's disability picture prior to July 1998, corresponds
to a 10 percent evaluation under Diagnostic Code 5295.  The
VA examination dated May 1997 confirm the veteran's
complaints of pain.  However, there was no evidence of spasm
and no loss of lateral spine motion.  Inasmuch as the veteran
had characteristic pain on motion, but no muscle spasm or
loss of lateral spine motion, a 20 percent evaluation under
Diagnostic Code was not warranted.  Moreover, as Diagnostic
Code 5295 contemplates pain on motion, DeLuca v. Brown, 8
Vet.App. at 204-06 is inapplicable.  See Johnson v. Brown, 9
Vet.App. 7, 9 (1996).

The Board has also considered the applicability of Diagnostic
Code 5292.  However, the evidence does not show that the
veteran had close to moderate limitation of motion, which is
required for a 20 percent evaluation under Diagnostic Code
5292.  The May 1997 VA examination showed flexion to 92
degrees, extension to 35 degrees, rotation to 35/35 degrees,
and lateral flexion to 38/38 degrees, indicative of no more
than slight limitation of motion under Diagnostic Code 5292.

As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not applicable, and this
aspect of the claim must be denied.  38 U.S.C.A. � 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The medical evidence shows that the veteran's disability
picture as of July 8, 1998, corresponds to a 20 percent
evaluation under Diagnostic Code 5293.  A July 1998 VA
examination showed: mild spasm on the right; pain on motion;
mild tenderness to palpation in the lumbar spine; frequent
flare-ups.  Range of motion was flexion to 95 degrees,
extension to 25 degrees, rotation to 35/35 degrees, and
lateral flexion to 40/40 degrees.  As noted above, the
evaluation criteria for Diagnostic Code 5293 provide ratings
of 10 percent for mild IDS, and 20 percent for moderate;
recurring attacks of IDS.  During the examination, the
veteran reported frequent flare-ups which have caused her to
be bedridden.  The veteran estimated that during the past 15
months she had missed approximately 20 days of work and is
out usually 2 days at a time during the flare-ups.  The
veteran's symptomatology as of July 8, 1998 satisfies the
criteria for moderate IDS with recurring attacks, and the
Board accordingly finds that a 20 percent rating is
warranted.

The Board has again considered the applicability of
Diagnostic Codes 5292 and 5295.  However, the July 1998 VA
examination does not show that the veteran has moderate
limitation of motion which would warrant an evaluation in
excess of 10 percent.  38 C.F.R. � 4.71a, Diagnostic Code
5292.  During the May 1998 VA examination range of motion was
flexion to 92 degrees, extension to 35 degrees, rotation to
35/35 degrees, and lateral flexion to 38/38 degrees.
Likewise, the evidence does not show muscle spasm on extreme
forward bending, loss of lateral spine motion, unilateral, in
standing position, which is required for a 20 percent
evaluation under Diagnostic Code 5295.

The Board finds that a 20 percent evaluation is appropriate
for the veteran's degenerative disc disease of the lumbar
spine as of July 8, 1998.  In reaching this decision, the
Board also finds that there is no objective evidence of
weakened movement, excess fatigability with use, or
incoordination of the lumbar spine which would indicate
additional functional loss due to pain.  Thus, the provisions
of 38 C.F.R. �� 4.40 and 4.45 have been considered as
mandated by DeLuca, supra; however, these provisions simply
do not apply in the absence of the relevant objective
findings.  Should the veteran's disability picture change in
the future, she may be able to meet the criteria for an
evaluation in excess of 20 percent for her degenerative disc
disease of the lumbar spine, but at present there is no basis
for a higher rating.  See 38 C.F.R. � 4.1.

Effective dates for original claims, as well as increases in
compensation are assigned in accordance with 38 U.S.C.A.
� 5110, as implemented by 38 C.F.R. � 3.400.  Under the
statute, the effective date of an award of compensation based
on an original claim is "fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of
application therefor."  An exception exists where the
original claim is filed within one year following the
veteran's date of discharge or release, in which case the
award is effective the day following the date of discharge or
release.  38 U.S.C.A. � 5110(b)(1).  This rule applies in the
veteran's case, permitting assignment of an effective date
for service connection and the initial compensation award as
of April 1, 1997.

The law also provides that the effective date of an increase
in compensation is the date of receipt of claim or the
earliest date as of which it is ascertainable that an
increase in disability had occurred, if application is
received within one year from such date.  See 38 U.S.C.A.
� 5110(b)(2); 38 C.F.R. � 3.400(o)(2).  This is inapplicable
in the veteran's case, however, since she is an original
claim for which a "staged rating" may be assigned, and not
a claim for an increased rating.  See Fenderson, 12 Vet.App.
at 125-126.  Accordingly, the Board must assign an effective
date for any change in evaluation after the date of service
connection based solely on "the facts found."

As noted above, the Board has concluded that the veteran's
condition upon separation from service was 10 percent
disabling.  The earliest date as of which it is ascertainable
that an increase in disability had occurred appears to be
July 8, 1998, the date of the VA examination.  Accordingly,
the Board finds that a staged initial rating should be
assigned in the veteran's case, with a 10 percent evaluation
effective from April 1, 1997 (the day following the veteran's
release from active duty), and a 20 percent evaluation
effective from July 8, 1998 (the date of the VA examination).

When evaluating an increased rating claim, the Board may
affirm an RO's conclusion that a claim does not meet the
criteria for submission for an extraschedular rating pursuant
to 38 C.F.R. � 3.321(b)(1), or it may reach such a conclusion
on its own.  See Floyd v. Brown, 8 Vet.App. 88, 96 (1996);
Bagwell v. Brown, 9 Vet.App. 337, 338-339 (1996).  In the
present case, the Board notes that there has been no
assertion or showing that the veteran's service-connected
disability has caused marked interference with employment
(beyond that contemplated by the rating schedule) or
necessitated frequent periods of hospitalization.  In the
absence of such factors, the Board finds that the record does
not present such "an exceptional or unusual disability
picture as to render impractical the application of the
regular rating schedule standards" and need not remand this
matter to the RO for consideration.  See Bagwell, 9 Vet.App.
at 338-339; Shipwash v. Brown, 8 Vet.App. 218, 227 (1995).

ORDER

A rating in excess of 10 percent for degenerative disc
disease of the lumbar spine, from April 1, 1997 to July 7,
1998, is denied

A 20 percent rating for degenerative disc disease of the
lumbar spine, effective from July 8, 1998, is granted.

	R. F. WILLIAMS
	Member, Board of Veterans' Appeals


judge_norm: E M KRENZER

text: The appeal is denied.

text:
Citation Nr: 9916000
Decision Date: 06/10/99    Archive Date: 06/21/99

DOCKET NO.  97-13 071	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to an increased rating for service-connected
degenerative arthritis of the right knee (a right knee
disability), currently rated as 10 percent disabling.

2.  Entitlement to an increased rating for service-connected
degenerative arthritis of the left knee (a left knee
disability), currently rated as 10 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. A. Markey, Associate Counsel

INTRODUCTION

The veteran served on active duty from March 1976 to
September 1993.

This matter came before the Board of Veterans' Appeals
(Board) from an August 1996 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Winston-Salem,
North Carolina that denied the veteran's claims of
entitlement to disability ratings higher than 10 percent for
his service-connected knee disabilities. A notice of
disagreement was received in August 1996.  A statement of the
case was issued in September 1996.  The veteran's substantive
appeal was received in April 1997.  The veteran testified at
a video conference hearing before a member of the Board in
February 1998.  In June 1998 the Board remanded this case to
the RO for further development.

FINDINGS OF FACT

1.  The veteran's right knee disability is currently
manifested by osteoarthritic changes involving all joint
compartments, prominent osteophytes, small joint effusion,
some limitation of motion, and intermittent pain, including
with activity.

2.  The veteran's left knee disability is currently
manifested by osteoarthritic changes, prominent osteophytes,
small joint effusion, some limitation of motion, and
intermittent pain, including with activity.

CONCLUSION OF LAW

1.  The criteria for an evaluation higher than 10 percent for
the veteran's service connected right knee disability have
not been met or approximated.  38 U.S.C.A. �� 1155, 5107
(West 1991); 38 C.F.R. �� 4.7, 4.71a, Diagnostic Codes 5003,
5260, 5261 (1998).

2.  The criteria for an evaluation higher than 10 percent for
the veteran's service connected left knee disability have not
been met or approximated.  38 U.S.C.A. �� 1155, 5107 (West
1991); 38 C.F.R. �� 4.7, 4.71a, Diagnostic Code 5003, 5260,
5261 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the veteran has submitted
evidence that is sufficient to justify a belief that these
increased rating claims are well grounded.  38 U.S.C.A.
� 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78
(1990).  With respect to these claims, all relevant evidence
has been fully developed and, therefore, the VA's duty to
assist the veteran has been satisfied. Id.  It is noted that
the recent documents of record indicate that the veteran may
have been scheduled to undergo knee surgery in February or
March 1999.  On February 1, 1999, the RO sent the veteran a
letter and requested the he inform them if and when he has
the surgery so they could request the medical reports.  To
date, the veteran has not responded, and as such, the Board
will proceed with the decision based on the evidence
currently of record.

A review of the record reflects that service connection was
established for left and right knee disabilities by the RO in
a June 1994 decision.  This decision was based in part on a
review of the veteran's service medical records which showed
that he has was seen with knee disabilities in service and
underwent arthroscopic surgical procedures (a review of these
records reflects that he had multiple arthroscopes while in
service).  This decision was also based on the report of
contemporaneous VA examination, which indicated that
examination of the knees showed degenerative arthritic
changes with tenderness and crepitus bilaterally, but without
limited motion or laxity.  Based on these findings,
disability evaluations of 10 percent were assigned for each
knee.

The recent, relevant evidence of record consists of VA
outpatient treatment, examination, and hospital reports, as
well as the veteran's testimony given during a February 1998
video conference held before a member of the Board.

An outpatient treatment record dated in January 1996
indicates that the veteran presented with swelling of both
knees, as well as positive McMurray signs; Lachman's tests
were negative.  He was diagnosed with bilateral torn
cartilage.  A February 1996 record indicates that examination
revealed healed arthroscopic portals over the anterior aspect
of the left knee without palpable joint effusion, and that
the cruciate and collateral ligaments were intact.  A limited
range of left knee motion was also noted, and the veteran was
diagnosed with bicompartmental osteoarthritis of the left
knee.

During an August 1996 VA examination, the veteran related
that he wears knee braces but that his knees continue to be
painful and occasionally "went out."  Examination of the
right knee revealed no obvious swelling or deformity, that
the ligaments were intact, and that a full range of motion
was elicited.  Examination of the left knee revealed some
pain on pressure over the patella, but that the ligaments
were intact, that there was joint line pain, and that a full
range of motion was elicited.  There was no swelling or
deformity of either knee, and X-rays of the knees taken in
conjunction with this examination showed evidence of
degenerative joint disease bilaterally.  The veteran was
diagnosed with mild degenerative joint disease of the knees.

In September 1996, the veteran underwent a left knee
diagnostic and operative arthroscopy, debridement of anterior
cruciate ligament remnant, debridement of lateral meniscus,
open lateral retinacular release.  A preoperative diagnosis
of lateral meniscus tear and lateral retinacular tightness of
the left knee was noted on the operation report, as was the
operative diagnosis of grade II to IV chondromalacia, lateral
fact of patella, degenerative joint disease of all
compartments, radial and horizontal tear of posterior and
lateral horns of lateral meniscus, partial anterior cruciate
ligament tear.

As a result of this surgical procedure, the RO, in a January
1997 action, granted a temporary total rating for
convalescence of the left knee under the provisions of
38 C.F.R. � 4.30, from September 5, 1996 to November 1, 1996.

The veteran was seen on a follow up outpatient basis in
October 1996, and presented with mild to moderate left knee
effusion, anterior lateral joint line tenderness, and a range
of motion from 0 to 130 degrees.  In January 1997 he was seen
with bilateral knee degenerative joint disease and was found
to be doing well since the (September 1996) surgical
procedure, noted above.  At the time the veteran complained
of right knee clicking, locking, grinding, and occasional
effusion.  Physical examination of the knees revealed a range
of motion from 0 to 130 degrees and crepitus bilaterally.
The veteran was diagnosed with bilateral knee degenerative
joint disease and a complex tear of the lateral meniscus of
the left knee.

An April 1997 outpatient treatment record indicates that the
veteran presented at that time with left knee pain and
swelling.  Examination of the left knee revealed a positive
lateral tilt and patellofemoral crepitus throughout, and the
veteran was again diagnosed with grade IV degenerative joint
disease.  He was again seen in June 1997 complaining of left
knee pain and was diagnosed with patellar tendinitis.

Another VA examination was accomplished in early September
1997, the report of which indicates that the veteran
complained of painful knees and that on examination they were
found to be swollen and enlarged; bilateral crepitus was also
noted.  Neither knee was unstable, and the veteran was
diagnosed with painful knees, postoperative, with residuals.
The examiner noted that knee movements showed no
incoordination weakness, or loss of motion due to weakness or
excess fatigability.  X-rays of the right knee taken in mid-
September 1997 revealed moderate osteoarthritis with
narrowing of both the medial and lateral compartments,
subchondral sclerosis and marginal osteophyte.  X-rays of the
left knee revealed similar findings with mild to moderate
osteoarthritis involving all three compartments of the knee
joint.

A November 1997 outpatient treatment record notes that the
veteran reported recent left knee effusion and minor
buckling, and that the knee had been more painful than usual.
He further noted that the left knee usually becomes painful
during activity.  Physical examination of the left knee
revealed mild effusion, positive grind and apprehension,
sufficient patellofemoral tracking, and a positive anterior
drawer.  The knees were stable to varus/valgus stress, and
knee motion could be accomplished from 0 to 130 degrees
bilaterally.  The veteran was diagnosed with a anterior
cruciate ligament deficient left knee, status post multiple
meniscus debridements and probable osteoarthritis.

The veteran was seen on an outpatient basis in January 1998
complaining of continuous left leg weakness and periodic
swelling, bilateral knee joint line tenderness, and
"cracking" in the back of a knee cap.  He reported that the
left knee was worse than the right, and in fact reported that
he was experiencing no right knee pain.  Physical examination
of the left knee revealed mild effusion, mid and joint line
tenderness, good patellofemoral tracking, no apprehension, a
positive Lachman's test, and that the knee was stable to
varus/valgus stress.  Examination of the right knee revealed
a positive McMurray's sign and joint line tenderness.
However, there was no effusion and the knee was stable to
varus/valgus stress.  The veteran was diagnosed with a
chronic anterior cruciate ligament tear, left knee, painful
plica, right knee, and degenerative joint disease, both
knees.

A magnetic resonance imaging (MRI) study of the right knee
conducted in January 1998 (the same day as the above
documented outpatient treatment) revealed, among other
things, diffuse maceration of the lateral meniscal remnant
with diffuse high signal extending to the superior and
inferior articular surfaces of the anterior horn, posterior
horn, and body; a suspected tear and possible flap component
of the anterior horn medial meniscus; that there was moderate
three compartment osteoarthritis with medial and lateral
femoral condylar and posterior patellar spurring; grade II
chondromalacia with several small foci of increased signal in
the medial patellar facet, with thinning of lateral facet and
trochlear cartilage; a small to moderate size joint effusion
with probably small plicae medially and laterally; intact
ACL, medial collateral ligament (MCL), lateral collateral
ligament (LCL), and patellar retinaculi; and reactive bone
marrow and small subchondral cyst lateral femoral condyle.

A February 1998 outpatient treatment record indicates that
physical examination of the left knee again revealed mild
effusion, mid and joint line tenderness and a positive
Lachman's test, and that examination of the right knee
revealed joint line tenderness but no effusion.  In November
1998, the veteran was seen with right knee locking and other
mechanical difficulty.  Examination of that knee showed
crepitus and a positive McMurray's sign.

During the February 1998 hearing, the veteran testified that
his left knee was "catching" at that time due to damage of
the ACL, that his knees are equally disabling, and that his
problems with them are exacerbated during changes in the
weather.  He noted that his knees were painful but that he
had good knee stability, and that he has to sit down and rest
his knees for 10 minutes every hour while working as a
custodian with the Post Office.  The veteran further
testified that his knees become swollen on a regular basis,
and that he feels pressure in the knees.  Finally, he noted
that he was taking Motrin to treat the knee pain but recently
switched to another medication.

Another VA examination was accomplished in December 1998, the
report of which notes that the veteran does experience
bilateral knee pain that is not constant but is accentuated
by long standing, and that the knees "give away."  It is
further noted that the veteran's knee joint disease does
flare up accentuated by certain movements and that he avoids
stooping, bending, running, and lifting to avoid such flare-
ups.  There was no dislocation, subluxation, or instability
found in either knee, nor was effusion, weakness, tenderness,
redness, or heat associated with either knee.  Further,
neither knee was ankylosed and neither leg was shortened.
The veteran was able to flex his right knee to 90 degrees,
his left knee to 95 degrees.  Motion was noted to be painful
and there was some edema in the right knee.  As a result of
this examination, the veteran was diagnosed with painful
knees, degenerative arthritis, postoperative, bilaterally,
with residuals.

X-rays taken of the right knee in conjunction with this
examination revealed significant osteoarthritic changes
involving all joint compartments with focal narrowing and
osteophyte formation involving the patellofemoral and lateral
joint compartment.  They also revealed medial osteophytes and
a small joint effusion.  The impression noted on the
radiology report was moderate to severe osteoarthritic
changes with small joint effusion.  X-rays of the left knee
revealed tricompartmental osteoarthritic changes with
prominent osteophytes medially involving the patellofemoral
joint.  Also revealed was narrowing of the patellofemoral
joint with relative sparing of the medial and lateral joint
widths.  The impression noted on this radiology report was
moderate osteoarthritic changes, most severely involving the
medial and patellofemoral compartments.  Both sets of X-rays
revealed prominent tibial tubercles suggesting Osgood's-
Schlatter disease.

Essentially, it is maintained that the evaluations currently
assigned for the veteran's service-connected knee
disabilities are not adequate, given the current
symptomatology of these disabilities.  In this regard, it is
pointed out that disability evaluations are determined by the
application of a schedule of ratings which is based on the
average impairment of earning capacity. 38 U.S.C.A. � 1155
(West 1991); 38 C.F.R. � Part 4.  Separate diagnostic codes
identify the various disabilities.  The governing regulations
provide that the higher of two evaluations will be assigned
if the disability more closely approximates the criteria for
that rating.  Otherwise, the lower rating is assigned.
38 C.F.R. � 4.7 (1998).

The Board has reviewed the veteran's claim in light of the
history of these disabilities since their onset; however,
where, as in this case, entitlement to compensation has
already been established and an increase in the disability
ratings are at issue, the present level of disability is of
primary concern.  Francisco v. Brown, 7 Vet.App. 55, 58
(1994).

The Board notes that currently, the veteran's right knee
disability is rated as 10 percent disabling under 38 C.F.R.
� 4.71a, Diagnostic Code 5003 (1998), for osteoarthritis.
The left knee disability is rated as 10 percent disabling
under Diagnostic Code 5003 and 38 C.F.R. � 4.71a, Diagnostic
Code 5257 (1998).  Under Diagnostic Code 5003, osteoarthritis
of the knee, established by X-ray findings, will be rated on
the basis of limitation of motion under the appropriate
diagnostic code for the specific joint involved.  When,
however, the limitation of motion of the specific joint or
joints involved is noncompensable under the appropriate code,
a rating of 10 percent is warranted for each major joint
affected by limitation of motion.  38 C.F.R. � 4.71a,
Diagnostic Code 5003 (1998).  The Board points out that for
the purpose of rating disability from arthritis, the knee is
considered to be a major joint.  38 C.F.R. � 4.45 (1998).

Limitation of motion for knees is rated under 38 C.F.R.
� 4.71a, Diagnostic Codes 5260, 5261.  In order to be
eligible for a 10 percent disability rating under Diagnostic
Code 5260 or Diagnostic Code 5261, the veteran's right knee
flexion would have to be limited to 45 degrees or extension
limited to 10 degrees, respectively; a 20 percent rating
under these codes is provided when knee flexion is limited to
30 degrees or extension is limited to 15 degrees.

Under Diagnostic Code 5257, a 10 percent disability
evaluation is warranted for a slight knee impairment
(recurrent subluxation or lateral instability), and a 20
percent evaluation is provided when the impairment is
moderate.

Further, the Board points out that the Court has expounded on
the necessary evidence required for a full evaluation of
orthopedic disabilities when evaluating increased rating
claims for orthopedic disabilities.  In the case of DeLuca v.
Brown, 8 Vet.App. 202 (1996), the Court held that ratings
based on limitation of motion do not subsume 38 C.F.R. � 4.40
or 38 C.F.R. � 4.45.  It was also held that the provisions of
38 C.F.R. � 4.14 (avoidance of pyramiding) do not forbid
consideration of a higher rating based on greater limitation
of motion due to pain on use, including during flare-ups.

Taking into account all of the evidence set out above, the
Board finds that the preponderance of the evidence is against
increased disability evaluations for the service-connected
knee disabilities.  The Board does find that, currently, both
disabilities are appropriately rated as 10 percent disabling
under 38 C.F.R. � 4.71a, Diagnostic Code 5003 (1998) only.
Specifically, while the recent range of motion studies
conducted, noted above, would result in noncompensable
evaluations under the limitation of motion codes (i.e.
Diagnostic Codes 5260 and 5261), motion of each knee is
nevertheless limited, osteoarthritis of the knees has been
demonstrated by X-ray evidence, and the knee is a major
joint.  Such findings warrant 10 percent disability
evaluations under Diagnostic Code 5003.

Ratings higher than 10 percent for the service-connected knee
disabilities are not warranted due to functional limits
placed on the veteran during flare-ups, to include pain, or
due to weakened movement, excessive fatigability, and
incoordination.  In fact, while painful motion was elicited
during the most recent VA examination, neither knee showed
weakness, and during the previous examination, dated in
September 1997, movement of both knees showed no
incoordination, weakness, or loss of motion due to weakness
or excess fatigability.  Therefore, the Board finds that pain
and any functional loss associated with these disabilities
are appropriately reflected in the evaluation assigned to
this disability under Diagnostic Code 5003.

As noted, the evidence of record does not demonstrate that
either knee is limited in flexion or extension to a
compensable degree, and as such, an increased evaluation
under either Diagnostic Code 5260 or 5261, respectively,
while considered, is not warranted.

Finally, the Board points out that as instability of either
knees has not been demonstrated, separate evaluations under
38 C.F.R. � 4.71a, Diagnostic Code 5257 (1998) are not for
consideration.  See VAOPGCPREC 23-97 (July 1, 1997).

ORDER

The appeal is denied.

	E. M. KRENZER
	Member, Board of Veterans' Appeals


judge_norm: ROBERT D PHILIPP

condition: ptsd

text:
Citation Nr: 9917000
Decision Date: 06/21/99    Archive Date: 06/29/99

DOCKET NO.  97-26 971	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for dysthymia with
fatigue, memory loss, frequent colds, loose stools with
abdominal pain, pain in the shoulders, night sweats and
difficulty sleeping, to include consideration as being due to
an undiagnosed illness.

2.  Entitlement to service connection for viral infections,
coughing, rhinorrhea and wheezing, muscle and joint pain in
the neck, upper body, knees and hips, headaches and
blackouts, due to an undiagnosed illness..

3.  Entitlement to service connection for post-traumatic
stress disorder

4.  Entitlement to service connection for degenerative
arthritis of the thoracic spine, hemifacial microsomia and a
personality disorder.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel

INTRODUCTION

The veteran served on active duty for training from January
25, to June 10, 1989 and on active duty from October 11, 1990
to March 27, 1991.  He served in Southwest Asia during the
Persian Gulf War from November 14, 1990 to March 12, 1991.
This is an appeal from 1996 and 1998 rating actions by the
Department of Veterans Affairs (VA) Regional Office, St.
Paul, Minnesota, which denied entitlement to service
connection for the claimed disabilities.  The December 1996
statement of the case included the issue of entitlement to
service connection for a skin rash as due to an undiagnosed
illness; however, on his August 1997 substantive appeal, the
veteran indicated that he would not pursue that issue.  Thus,
that matter is not in an appellate status.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
regional office.

2.  The veteran's complaints of dysthymia with fatigue,
memory loss, frequent colds, loose stools with abdominal
pain, pain in the shoulders, night sweats and difficulty
sleeping were not demonstrated either during the veteran's
active military service or for several years following his
separation from service, and all have been attributed to a
known clinical diagnosis.

3.  There is no medical evidence establishing the current
existence of post-traumatic stress disorder.  Diagnosed
psychiatric disabilities include dysthymia with anxiety,
alcohol and marijuana abuse, in remission, and personality
disorder, not otherwise specified.

4.  Viral infections were not demonstrated either during
service or for several years after separation from service.

5.  Coughing, rhinorrhea and wheezing were not demonstrated
during service.  Those symptoms were initially demonstrated
after service and are not disabling to a compensable degree.

6.  Muscle and joint pain in the neck, upper body, knees and
hips was not demonstrated during service and has not been
shown to have existed for six months or more following
service.

7.  Headaches were not demonstrated during the veteran's
military service.  Headaches were initially medically shown
after service but are not disabling to a compensable degree.

8.  Blackouts were not demonstrated during the veteran's
military service.  Blackouts have not been shown to have
existed for six months or more after service.

9.  Arthritic changes of the veteran's thoracic spine were
not shown during service or for several years after the
veteran's separation from service.

10.  Hemifacial microsomia is a congenital or developmental
anomaly.

CONCLUSIONS OF LAW

1.  Dysthymia with fatigue, memory loss, frequent colds,
loose stools with abdominal pain, pain in the shoulders,
night sweats and trouble sleeping, viral infections,
coughing, rhinorrhea and wheezing, muscle and joint pain in
the neck, upper body, knees and hips, headaches and blackouts
are not chronic disabilities due to an undiagnosed illness
which were incurred in or aggravated during service and these
conditions may not be presumed to have been incurred in
service.  38 U.S.C.A. �� 1110, 1117, 1131, 5107 (West 1991);
38 C.F.R. � 3.317 (1998).

2.  The veteran's claims for service connection for a post-
traumatic stress disorder and arthritis of the thoracic spine
are not well grounded.  38 U.S.C.A. �� 1101, 1110, 1112,
1113, 1137, 5107 (West 1991); 38 C.F.R. �� 3.307, 3.309
(1998).

3.  The veteran's hemifacial microsomia and personality
disorder are not diseases or disabilities for which service
connection may be established.  38 U.S.C.A. �� 1101, 1110,
5107; 38 C.F.R. � 3.303(c) (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board notes that it has found the veteran's claims are
"well grounded" within the meaning of 38 U.S.C.A. � 5107(a);
effective on and after September 1, 1989, with the exceptions
of the claims for service connection for post-traumatic
stress disorder and arthritis of the thoracic spine.  That
is, the Board finds that he has presented claims which are
plausible.  The Board is also satisfied that all relevant
facts regarding those claims have been properly developed.

I.  The Claims for Service Connection for Dysthymia with
Fatigue, Memory Loss, Frequent Colds, Loose Stools with
Abdominal Pain, Pain in the Shoulders, Night Sweats and
Trouble Sleeping, to Include Consideration as being due to an
Undiagnosed Illness.

The veteran's service medical records, including the report
of his physical examination for separation from service in
March 1991, do not reflect any reference to dysthymia or
fatigue, memory loss, frequent colds, loose stools with
abdominal pain, pain in the shoulders, night sweats and
trouble sleeping.  None of those conditions was reported or
found when he was examined by the service department in
December 1991 or in May 1993.

The veteran's initial claim for VA disability benefits was
submitted in September 1995.

The veteran was afforded a VA physical examination for
Persian Gulf War veterans in September 1995.  He reported
symptoms of fatigue and frequent viral infections.  He also
reported a productive cough.  He noted occasional night
sweats.  He indicated that he had been feeling somewhat
depressed and had lost interest in some of his previous
activities.  It was reported that he had had several recent
stresses in his life including a recent divorce and a change
in employment.  He had also recently moved to a new location.
It was indicated that the physical examination was normal.

The veteran was afforded VA psychological testing in November
1995.  It was indicated that the test results were consistent
with the presence of significant depression and anxiety.  It
was indicated that, while there was evidence of some post
traumatic stress disorder symptomatology, he did not appear
to meet the diagnostic criteria for that condition.  In
particular, his scores on two tests were below the cutoff
established for a post traumatic stress disorder
classification, and did not provide support for that
diagnosis.  Many of his symptoms were considered to be more
consistent with depression than his Persian Gulf experiences.

The veteran was also afforded a VA psychiatric examination in
November 1995.  Various findings were recorded on mental
status examination including moderate depression and some
decrease in self-esteem.  The diagnoses were moderate
dysthymia, history of alcohol and marijuana abuse, in
remission, and personality disorder, not otherwise specified.
The examiner stated that in his opinion the veteran did not
meet the criteria for post-traumatic stress disorder.

The regional office later received records from a veterans'
center reflecting that the veteran was seen in October and
November 1995 for psychiatric problems.  Possible post-
traumatic stress disorder was indicated.

The veteran was again afforded VA psychological testing in
October 1997.  Diagnostic impressions were made of somatiform
disorder and anxiety disorder.  It was indicated that the
psychosocial stressors included concern over recurrent health
problems, unemployment and financial difficulties.

The veteran was afforded a VA psychiatric examination in
October 1997.  He reported symptoms including fatigue, memory
loss, lack of energy, catching colds easily, several stools
per day, pain in the shoulders, night sweats and difficulty
sleeping.  The examiner indicated that he believed all of
those symptoms could be related to the veteran's depression.

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by military
service.  38 U.S.C.A. �� 1110, 1131.

Except as provided in paragraph (c) of this section, the VA
shall pay compensation in accordance with Chapter 11 of Title
38, United States Code to a Persian Gulf veteran who exhibits
objective indications of chronic disability resulting from an
illness or a combination of illnesses manifested by one or
more signs or symptoms such as those listed in paragraph (b)
of this section, provided that such disability:  (1) Became
manifest either during active military, naval or air service
in the Southwest Asia Theater of Operations during the
Persian Gulf War or to a degree of 10 percent or more not
later than December 31, 2001; and (2) by history, physical
examination and laboratory tests cannot be attributed to any
known clinical diagnosis.  For purposes of this section,
disabilities that have existed for six months or more and
disabilities that exhibit intermittent episodes of
improvement and worsening over a six-month period will be
considered chronic.  38 U.S.C.A. � 1117; 38 C.F.R. � 3.317.

For the purposes of paragraph (a)(1) of this section, signs
or symptoms which may be manifestations of undiagnosed
illness included, but are not limited to various conditions
including fatigue, headache, muscle pain, joint pain,
neurologic signs or symptoms, neuropsychological signs or
symptoms, signs or symptoms involving the respiratory system,
sleep disturbances, and gastrointestinal signs or symptoms.
38 U.S.C.A. � 1117; 38 C.F.R. � 3.317(b).

The veteran has not contended, and the record does not show
that any of his current complaints or disorders are in any
way related to his extended period of active duty for
training; therefore, that period of service need not be
further considered.  His service medical records from his
period of active duty do not reflect any reference to
dysthymia or fatigue, memory loss, frequent colds, loose
stools with abdominal pain, pain in the shoulders, night
sweats and difficulty sleeping.  Psychiatric disabilities,
including dysthymia were initially reported several years
following the veteran's separation from active service.  When
the veteran was afforded the most recent VA psychiatric
examination in October 1997, the examiner concluded that the
fatigue, memory loss, frequent colds, loose stools with
abdominal pain, pain in the shoulders, night sweats and
difficulty sleeping could be related to the veteran's
depression (dysthymia).  The veteran's dysthymia is a
diagnosed illness and was not demonstrated either during the
veteran's military service or for several years after his
separation from service.  The other claimed symptoms have
been attributed to his dysthymia, and are not disabilities
due to an undiagnosed illness.  It follows that entitlement
to service connection for the veteran's dysthymia with
fatigue, memory loss, frequent colds, loose stools with
abdominal pain, pain in the shoulders, night sweats and
difficulty sleeping would not be warranted either on the
basis of direct service incurrence or under the presumptive
provisions pertaining to service connection for undiagnosed
illness resulting from Persian Gulf War service, since they
have been attributed to a known clinical diagnosis.
38 U.S.C.A. �� 1110, 1117, 1131; 38 C.F.R. � 3.317.

II.  The Claims for Service Connection for Viral Infections,
Coughing, Rhinorrhea and Wheezing, Muscle and Joint Pain in
the Neck, Upper Body, Knees and Hips, Headaches and Blackouts
as due to an Undiagnosed Illness.

The veteran's service medical records, including the report
of his physical examination for separation from service in
March 1991 do not reflect any complaints or findings
regarding viral infections, coughing, rhinorrhea and
wheezing, muscle and joint pain in the neck, upper body,
knees and hips, headaches or blackouts.  None of those
conditions were either reported or shown when the veteran was
afforded examinations by the service department in December
1991 and May 1993.  The conditions were initially shown
several years following the veteran's separation from
service.  Thus, service connection would not be warranted for
any of the claimed disorders on a direct basis.  38 U.S.C.A.
�� 1110, 1131.

The veteran's viral infections are a diagnosed illness and
service connection may not be established for those
infections under the presumption based on service in the
Persian Gulf.  The veteran's coughing, rhinorrhea, wheezing
and headaches have not been shown to be present to a
compensable degree.  When he was seen at the Gateway Family
Health Clinic in 1995 a chronic cough was reported.  However,
when he was afforded a VA general medical and pulmonary
examination in November 1995, it was indicated that there was
no cough. The chest was clear to percussion and auscultation.
On the October 1997 VA general medical examination, it was
again stated that there was no cough and the lungs were clear
to auscultation and percussion.  Pulmonary function studies
in October 1997 were normal.  On another VA examination
conducted in November 1997, it was indicated that the nose
was normal except for mildly edematous mucosa. The septum was
deviated but he had a reasonable nasal passage.  It was
indicated that the nasal/pharynx examination was normal.  In
the absence of chronic manifestations, a compensable
evaluation for coughing, rhinorrhea and wheezing would not be
warranted under the provisions of diagnostic codes 6502-6600.
On a November 1997 VA examination, the veteran reported
having almost daily headaches; however, the headaches were
typically relieved by aspirin.  There was no indication of
prostrating attacks.  Thus, a compensable evaluation for the
headaches under diagnostic 8100 would not be in order.  The
muscle and joint pain in the neck, upper body, knees and hips
and blackouts have not been objectively confirmed or
verified; nor have they been shown to be present for six
months or more.  When the veteran was afforded a VA
neurological examination in November 1995, he indicated that
he had had only one episode of loss of consciousness.  Thus,
service connection would not be warranted for any of those
disorders under the presumption pertaining to Persian Gulf
War service.  38 U.S.C.A. � 1117; 38 C.F.R. � 3.317.

III.  The Claims for Service Connection for a Post Traumatic
Stress Disorder and Arthritis of the Thoracic Spine.

With regard to the veteran's claims for service connection
for post traumatic stress disorder and arthritis of the
thoracic spine, the Board finds that those claims are not
well-grounded.  Thus, his appeal regarding those issues must
fail and there is no duty to assist him further in the
development of those claims because such additional
development would be futile.  38 U.S.C.A. � 5107(a).

As noted previously, the veteran's service medical records,
including the report of his physical examination for
separation from service in March 1991 do not reflect any
reference to a psychiatric disability.  There was also no
reference to a psychiatric condition on the December 1991 and
May 1993 physical examinations conducted by the service
department.  Psychiatric conditions, variously diagnosed,
were initially medically demonstrated after the veteran's
separation from service.  Further, when the veteran was
afforded VA psychological testing in November 1995 it was
indicated that, while there was some post-traumatic stress
disorder symptomatology, the veteran did not meet the
diagnostic criteria for that condition.  On the November 1995
VA psychiatric examination the examiner indicated that the
veteran did not meet the criteria for post-traumatic stress
disorder.  Post-traumatic stress disorder also was not
demonstrated on the October 1997 VA psychiatric examination.

A determination of service connection requires a finding of
the existence of a current disability and a determination of
a relationship between that disability and an injury or
disease incurred in service.  Watson v. Brown, 4 Vet. App.
309, 314 (1993).  In order for a claim to be well grounded,
there must be competent evidence of a current disability (a
medical diagnosis); of incurrence or aggravation of a disease
or injury in service (lay or medical evidence); and of a
nexus between the inservice injury or disease and the current
disability (medical evidence).  Caluza v. Brown, 7 Vet. App.
498 (1995).

A well-grounded claim requires more than a mere assertion;
the claimant must submit supporting evidence.  Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992).  In this case, the
veteran has not submitted any medical evidence, opinion or
other independent evidence which supports his claim for
service connection for a post-traumatic stress disorder.  As
noted previously, the presence of that condition has not been
demonstrated on the VA examinations conducted after service.
Given the evidence that is of record, the claim for service
connection for a post-traumatic stress disorder may not be
considered well grounded.  Since the claim is not well
grounded it must accordingly be denied.  Grottveit v. Brown,
5 Vet. App. 91 (1993); Edenfield v. Brown, 8 Vet. App. 384
(1995).

Although the Board has considered and disposed of the
veteran's claim for service connection for a post-traumatic
stress disorder on a ground different from that of the
regional office, that is, whether the claim is well grounded
rather than whether he is entitled to prevail on the merits,
the veteran has not been prejudiced by the Board's decision.
In assuming that the claim was well grounded, the regional
office afforded the veteran greater consideration than the
claim warranted under the circumstances.  Bernard v. Brown, 4
Vet. App. 384, 392-94 (1993).  To remand this case to the
regional office for consideration of the issue whether the
claim is well grounded would be pointless and in light of the
law cited above would not result in a determination favorable
to the veteran.  VA O.G.C. PREC. Op. 16-92, 57 Fed. Reg. 49,
747 (1992).  To submit a well-grounded claim, the veteran
would need to offer competent evidence, such as a medical
report, that he currently has post-traumatic stress disorder
and that that condition is related to service.  Robinette v.
Brown, 8 Vet. App. 69 (1995).

With regard to the veteran's claim for service connection for
arthritis of the thoracic spine, that condition was not
demonstrated either during the veteran's military service or
for several years thereafter.  There is no indication of any
relationship between that condition and the veteran's
military service.  Thus, that claim is also not well
grounded.

IV.  The Claims for Service Connection for Hemifacial
Microsomia and a Personality Disorder.

The veteran's service medical records do not reflect any
reference to hemifacial microsomia or a personality disorder.
Hemifacial microsomia was initially diagnosed on a VA
examination in October 1995.  As described on the report,
that term merely meant that the left side of his face and
head were smaller than the right. That observation has been
carried forward on several subsequent examinations, but no
examiner has indicated that the hemifacial microsomia is
anything other than a congenital or developmental anomaly.
As such, it is not a disease or disability for which service
connection may be established.  38 C.F.R. � 3.303(c).  A
personality disorder was initially diagnosed on the November
1995 VA psychiatric examination.  A personality disorder is
also not a disease or disability for which service connection
may be established.  Accordingly, under the circumstances,
there is no basis for a grant of service connection for
either hemifacial microsomia or a personality disorder.

The Board has carefully reviewed the entire record; however,
the Board does not find the evidence to be so evenly balanced
that there is doubt as to any material issue regarding any of
the claimed disorders.  38 U.S.C.A. � 5107.

ORDER

Entitlement to service connection for dysthymia with fatigue,
memory loss, frequent colds, loose stools with abdominal
pain, pain in the shoulders, night sweats and difficulty
sleeping, to include consideration as being due to an
undiagnosed illness is not established.

Entitlement to service connection for viral infections,
coughing, rhinorrhea and wheezing, muscle and joint pain in
the neck, upper body, knees and hips, headaches and blackouts
as due to an undiagnosed illness is not established.

Entitlement to service connection for a post-traumatic stress
disorder, degenerative arthritis of the thoracic spine,
hemifacial microsomia and a personality disorder is not
established.  The appeal is denied.

	ROBERT D. PHILIPP
	Member, Board of Veterans' Appeals


judge_norm: MARK D HINDIN

text:
Citation Nr: 9918000
Decision Date: 06/29/99    Archive Date: 07/07/99

DOCKET NO.  95-26 706	)	DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington

THE ISSUE

Entitlement to service connection for a low back disorder.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel

INTRODUCTION

The veteran had active service from January 1954 to October
1957.

This case was previously before the Board of Veterans'
Appeals (Board) in June 1997 at which time it was remanded to
the Department of Veterans Affairs (VA) Regional Office (RO)
in Seattle, Washington, for further development regarding the
veteran's claim for service connection for a low back
disorder.  The case has returned to the Board for appellate
review with regard to this matter.

FINDING OF FACT

There is no competent evidence of a nexus between service and
any current low back disability.

CONCLUSION OF LAW

The claim for service connection for a chronic low back
disability is not well grounded.  38 U.S.C.A. � 5107(a) (West
1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

The initial question in this case is whether the claim is
well grounded.  The veteran has the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that his claim is well grounded.  See
38 U.S.C.A. � 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73
(1995).  A well-grounded claim is a "plausible claim, one
which is meritorious on its own or capable of substantiation.
Such a claim need not be conclusive but only plausible to
satisfy the initial burden of section [5107]."  See Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990).  If not, the claim must
be denied and there is no further duty to assist the veteran
with the development of evidence pertaining to that claim.
See Epps v. Gober, 126 F.3d. 1464, 1468 (1997); 38 U.S.C.A.
� 5107(a).

In order for a claim for service connection to be well
grounded, there must be:  (1) Competent evidence of a current
disability (a medical diagnosis); (2) evidence of incurrence
or aggravation of a disease or injury in service (lay or
medical evidence, depending on the circumstances); and
(3) evidence of a nexus between the inservice injury or
disease and a current disability (medical evidence).
Caluza v. Brown, 7 Vet. App. 498 (1995).

Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of a preexisting
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. �� 1110, 1131 (West 1991); 38 C.F.R. �� 3.303,
3.306 (1998).  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 disease was incurred in
service.  38 C.F.R. � 3.303(d).  In order to establish
service connection, the evidence must demonstrate the
existence of a current disability and a causal relationship
between the disability and military service.  See Hensley v.
Brown, 5 Vet. App. 155, 159 (1993).  Once the evidence is
assembled, the Secretary is responsible for determining
whether the preponderance of the evidence is against the
claim.  See 38 U.S.C.A. � 5107(b).  If so, the claim is
denied; if the evidence is in support of a claim or is in
relative equipoise, the claim is allowed.  Id.  If, after
careful review of all the evidence, a reasonable doubt arises
regarding service connection, such doubt will be resolved in
favor of the veteran.  38 C.F.R. � 3.102 (1998).

Under the provisions of 38 C.F.R. � 3.303(b), with chronic
disease shown as such in service (or within the presumptive
period under � 3.307) so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent
causes.  This rule does not mean that any manifestation of
joint pain...in service will permit service connection of
arthritis or other disabilities, first shown as a clearcut
clinical entity, at some later date.  For the showing of
chronic disease in service there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time,
as distinguished from merely isolated findings or a diagnosis
including the word "chronic."  When the disease identity is
established, there is no requirement of evidentiary showing
of continuity.  Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned.  When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim.

The chronicity provision of � 3.303(b) is applicable, where
evidence, regardless of its date, shows that a veteran had a
chronic condition in service or during an applicable
presumptive period and still has such condition.  Such
evidence must be medical unless it relates to a condition as
to which, under the case law of the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) (hereinafter,
"the Court"), lay observation is competent.  If the
chronicity provision is not applicable, a claim is to be well
grounded or reopened on the basis of � 3.303(b) if that
condition is observed during service or during any applicable
presumption period, continuity of symptomatology is
demonstrated thereafter, and competent evidence relates the
present condition to that symptomatology.  Savage v. Gober,
10 Vet. App. 488 (1997).

A review of the evidence of record discloses that the fire at
the National Personnel Records Center in St. Louis damaged
most of the veteran's medical records in 1973.  However, the
evidence does include the report of the veteran's enlistment
examination in December 1953 and the report of his separation
examination in September 1957.  Those records are without
reference to any back complaints or abnormalities.

The veteran's initial claim for service connection for a low
back disability was received in June 1994.  In a July 1994
communication the veteran stated that he received treatment
for a back injury between June 1955 and June 1957 at the
Biggs Air Force Base in El Paso, Texas.

The veteran was accorded a general medical examination by VA
in November 1995.  He reported that sometime in 1956, while
working a truck mechanic, he suffered multiple lifting
injuries.  He complained of progressive back symptoms ever
since then.  He related that in 1991 he underwent a
laminectomy for herniated disc of the "bottom two discs."
X-ray studies were interpreted as revealing status post
hemilaminectomy at the level of the 4th and 5th lumbar
vertebrae on the left.  Also shown was degenerative joint
disease and degenerative disc disease.  The examination
assessment was reported history of back injury while in
military service due to lifting as an aircraft mechanic, with
progressive symptoms of back pain with surgery for disc
herniation in 1991.

In the Board's remand action, in June 1997, the veteran was
asked to identify names, addresses, and approximate dates of
treatment from all health care providers who had treated him
for a low back disorder ever since service.

A review of the record shows that he provided the names of
various physicians, hospitals, and employers.  He reported
that he had had numerous visits to chiropractors and
undergone physical therapy sessions on a number of occasions
over the past 40 years, but his memory was not "that good to
remember all of [the] names."

The records obtained and associated with the claims file
consist of medical records dating from 1980.  A copy of an
emergency room report dated in October 1980 reflects that the
veteran was seen that month after having leaned over at work
and feeling pain in the lower lumbar region the day before.
He was able to continue working, although the discomfort
persisted.  Overnight, the pain increased.  It was
specifically stated there was "no prior history of back
problems."  The diagnoses included lumbar strain.

Additional medical records include the report of
hospitalization at a private facility in September 1991.  It
was noted the veteran had been referred for an epidural
steroid injection because of persisting pain of the left
lower extremity secondary to bulging discs in the lower
lumbar spine.  He had been having this problem for
"approximately two months...."

Analysis

As was pointed out in the Board's previous remand the veteran
is competent to report back injuries in service.  There is
also competent evidence of a current back disability in the
form of treatment records, reports of X-ray examinations and
the diagnoses contained in those reports.  Accordingly, the
veteran has submitted evidence that meets two of the three
Caluza prongs of a well-grounded claim-evidence of an injury
in service and evidence of a current disability.

The missing element in the veteran's claim is competent
evidence of a nexus between service and a current back
disability.  In its remand, the Board found that such
evidence was supplied by the veteran's report of a continuity
of symptomatology since service.  However, the Board's remand
was issued prior to the Court's decisions in Clyburn v. West,
12 Vet. App. 296 (1999); and Savage v. Gober, supra.

In those decisions, the Court held that a veteran may be
competent to report a continuity of symptomatology.  Where,
however, the issue is one of etiology,  competent medical
evidence would be necessary to say that an injury in service,
and the pain since is the same condition he is currently
diagnosed with.  Clyburn v West, at 301.  In other words,
competent evidence would be necessary to link the continuity
of symptomatology to the current diagnosis.

The evidence which is of record contains no medical opinion
attributing any current low back disability to the veteran's
active service.  There is also no evidence linking his
reported continuity of symptomatology to a current diagnosis.
Since the veteran has not presented such evidence, the claim
is not well grounded and must be denied.

ORDER

Service connection for a low back disability is denied.

	Mark D. Hindin
	Member, Board of Veterans' Appeals