judge_norm: ROBERT P REGAN

text: In order to ensure the veteran’s right of due process, the case is REMANDED for the following action:

text:
Citation Nr: 9807000
Decision Date: 03/09/98    Archive Date: 03/25/98

DOCKET NO.  96-39 841	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been received to reopen
a claim for service connection for schizophrenic disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant, her mother and aunt

ATTORNEY FOR THE BOARD

D. Orfanoudis, Associate Counsel

INTRODUCTION

The veteran served on active duty for training from May 4,
1979 to August 10, 1979.

This appeal arises before the Board of Veterans� Appeals
(Board) from an October 1994 rating decision of the St.
Petersburg, Florida, Regional Office (RO) which confirmed and
continued a prior denial of entitlement to service connection
for schizophrenic disorder on the ground that new and
material evidence had not been received.  Service connection
for a nervous condition (including schizoaffective type
disorder and active psychosis) was originally denied in
October 1982.  The RO determined that the condition was not
first noted during the veteran�s period of active duty for
training, and that presumptive service connection was not
warranted, as the veteran did not have 90 days of active
duty.  The veteran was informed of the decision and of her
appellate rights, but did not perfect a substantive appeal.
Thus, the decision of the RO became final.  The veteran, her
mother and her aunt testified before the hearing office of
the RO in May 1995.

REMAND

It is the opinion of the Board that additional evidentiary
development is necessary prior to further disposition of this
case.

During the veteran�s hearing before the RO, the
representative raised the issue of clear and unmistakable
error (CUE) regarding the October 1982 rating decision.  The
representative argued that her period of active service
extended over a period of 98 consecutive days which was shown
on her DD-214.  The veteran was thus entitled to the one-year
presumptive period for the psychosis.  A favorable decision
on the issue of clear and unmistakable error in the October
1982 rating decision would effect the outcome of the issue
presently on appeal with regard to the veteran�s
schizophrenic disorder as the veteran could qualify for
presumptive service connection.  The Board finds that these
issues are "inextricably intertwined," with the current issue
as a favorable determination would directly effect the law
and regulations on which the current decision would be based.
Accordingly, the RO must adjudicate the issue of clear and
unmistakable error in the October 1982 rating action prior to
the Board's consideration of the issue certified on appeal.
See Harris v. Derwinski, 1 Vet.App. 180 (1991).

In order to ensure the veteran�s right of due process, the
case is REMANDED for the following action:

1.  The RO should inform the appellant
that she has the opportunity to submit
additional evidence and argument in
support of her claim.

2.  The RO should develop and adjudicate
the issue of whether CUE was committed in
the October 1982 rating decision.

3.  If the benefit sought is not granted,
the appellant and her representative
should be notified of that denial and of
her appellate rights.

The claims folder should then be returned to the Board for
further review, as appropriate.  The purpose of this REMAND
is to ensure compliance with due process considerations.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans� Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans� Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA�s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

	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 Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1996).

- 2 -


series: legacy

judge_norm: RONALD R BOSCH

judge_role: Member, Board of Veterans' Appeals

disposition: denied

condition: psychiatric

text:
Citation Nr: 9808000
Decision Date: 03/18/98    Archive Date: 04/02/98

DOCKET NO.  96-14 809	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico

THE ISSUES

1.  Whether new and material evidence has been submitted to
submitted to reopen a claim for service connection for a
psychiatric disorder.

2.  Entitlement to an increased rating for the residuals of
head trauma, currently rated 10 percent disabling.

REPRESENTATION

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

WITNESSES AT HEARING ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

T. L. Douglas, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1965 to July
1967.

This matter comes before the Board of Veterans� Appeals
(Board) on appeal from a December 1990 rating decision by the
San Juan, Puerto Rico, Regional Office (RO) of the Department
of Veterans Affairs (VA), which denied reopening a claim for
service connection for a psychiatric disorder, denied an
increased rating for the residuals of head trauma and denied
entitlement to a temporary total rating based upon hospital
treatment for a service-connected disability.  In August
1993, the RO received correspondence in which the veteran
withdrew his claim for entitlement to a temporary total
rating based upon hospital treatment for a service-connected
disability.

The record reflects that in April 1968 the RO granted service
connection for brain concussion, depressive reaction, and
chronic tonsillitis, each assigned a 10 percent disability
rating.  A July 1976 rating decision severed service
connection for the veteran�s psychiatric disorder.

In November 1978, the Board denied restoration of service
connection for a psychiatric disorder.

In December 1980, the Board denied service connection for a
psychiatric disorder, and denied an increased rating for
brain concussion.

In November 1983, the RO denied reopening the veteran�s claim
for service connection for a psychiatric disorder.  The
veteran was notified by correspondence dated in January 1984
that new evidence was required to reopen his claim.

In April 1988, the Board denied an increased rating for the
residuals of a brain concussion, and denied entitlement to a
temporary total rating based upon hospital treatment for a
service-connected disability.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he has submitted new and material
evidence to reopen the claim for service connection for a
psychiatric disorder, and that the entire record establishes
service connection.  He also claims that the residuals of his
service-connected head trauma are more severe than indicated
by the present disability evaluation.  He argues that an
increased rating is warranted.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
new and material evidence to reopen his claim for service
connection for a psychiatric disorder.  It is also the
decision of the Board that the preponderance of the evidence
is against the claim for an increased rating for the
residuals of head trauma.

FINDINGS OF FACT

1.  In November 1983, the RO denied reopening the veteran�s
claim for entitlement to service connection for a psychiatric
disorder; the veteran did not appeal.

2.  The additional evidence added to the record since the
last final disallowance includes the veteran�s statements in
support of the claim, personal hearing testimony and post-
service treatment records.

3.  The foregoing evidence is either cumulative, not relevant
to or probative of the issue or not competent, or does not
present a reasonable possibility of changing the outcome of
the prior decision.

4.  All relevant evidence necessary for an equitable
disposition of the increased rating claim on appeal has been
obtained.

5.  Medical evidence demonstrates that the veteran�s service-
connected residuals of head trauma are manifested by
subjective complaints of chronic headaches, but without
recent evidence of neurologic disabilities or a diagnosis of
multi-infarct dementia related to the head trauma sustained
during active service.

CONCLUSIONS OF LAW

1.  The November 1983 rating decision wherein the RO declined
to reopen the veteran�s claim for entitlement to service
connection for a psychiatric disorder is final.  38 U.S.C.A.
� 4005(c) (1982);  38 C.F.R. � 19.192 (1983) (currently
38 U.S.C.A. � 7105 (West 1991 & Supp. 1997);  38 C.F.R.
�� 3.104, 20.1103 (1997)).

2.  Evidence submitted since the November 1983 rating
decision wherein the RO declined to reopen the claim for
service connection for a psychiatric disorder is not new and
material, and the veteran�s claim for that benefit has not
been reopened.  38 U.S.C.A. � 5108 (West 1991);  38 C.F.R.
� 3.156(a) (1997).

3.  The criteria for a rating in excess of 10 percent for the
veteran�s residuals of head trauma have not been met.
38 U.S.C.A. �� 1155, 5107(a) (West 1991); 38 C.F.R. � 4.124a,
Diagnostic Code 8045 (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Whether new and material evidence has
been submitted to reopen a claim of
entitlement to service connection for a
psychiatric disorder.

Factual Background

In November 1983, the RO declined to reopen the veteran�s
claim for entitlement to service connection for a psychiatric
disorder.  The RO notified the veteran by letter dated
January 16, 1984.  The veteran did not appeal.  Therefore,
the November 1983 rating decision is final.  38 U.S.C.A.
� 4005(c); 38 C.F.R. � 19.192 (currently 38 U.S.C.A. � 7105;
38 C.F.R. �� 3.104, 20.1103.

In prior decisions, the RO and the Board considered the
veteran�s service medical records, statements in support of
the claim, VA medical examinations and post-service treatment
records.  Service medical records include the veteran�s May
1967 separation examination which reported a normal clinical
psychiatric evaluation.  An October 1967 VA psychiatric
examination included a diagnosis of depressive reaction.  An
April 1970 psychiatric hospital report noted that the veteran
was first admitted in October 1969.  The report noted a
psychological evaluation in November 1969 found schizophrenic
reaction.

In November 1978, the Board denied restoration of service
connection for a psychiatric disorder because no psychiatric
disorder was present during active service and the veteran�s
psychosis had become manifest over 2 years after his service
discharge.  A December 1980 Board decision denied service
connection for a psychiatric disorder because an acquired
psychiatric disease was not incurred or aggravated by active
service, was not manifest within a presumptive period and was
not secondary to the veteran�s service-connected brain
concussion.  The November 1983 rating decision denied
reopening the claim based upon post-service medical treatment
records dated from May 1982 to September 1983.

In support of the claim, the veteran�s spouse testified that
she dated the veteran before his military service, and that
they married after his service discharge and after the
termination of his first marriage; she stated they had been
married for 20 years.  Transcript, p. 7 (January 1992).  She
stated that she remained distant from the veteran during his
previous marriage, but that since they married she noticed
that he had been very absent-minded .  Tr., p. 8.  The
veteran�s representative stated that he believed service
connection was warranted because the October 1967 VA
examinations indicated that psychiatric treatment was
required.  Tr., pp. 8-9.

In a subsequent hearing, the veteran testified that after his
accident during active service the military revoked his 3-
year reenlistment agreement, and they kept him idle at the
base for 9 months.  Transcript, pp. 8-9 (November 1993).  He
stated that he was treated with medication, but was not
hospitalized during that time.  Tr., p. 9.  He stated that he
received post-service medical treatment at the VA medical
center, and that he could not remember anything after he had
worked as a fireman.  Tr., p. 10.  He stated that he believed
his psychiatric disorder was the result of the head trauma
during active service.  Tr., p. 14.

In support of his claim the veteran submitted copies of
private hospital records dated from September 1970 to
November 1976.  A September 1970 report noted that the
veteran was involved in a boat accident during active service
which resulted in loss of consciousness for one month and
remained in the hospital for 3 months, and that the veteran
first received psychiatric evaluation after he wounded his
ex-wife during an argument.  The diagnosis was reaction
schizophrenic paranoid with depressive signs.  Additional
records note treatment and diagnoses of chronic
schizophrenia.

Medical evidence added to the claims file since the November
1983 final disallowance also includes VA medical records
dated in September and October 1986 which report diagnoses of
brainstem infarct and high blood pressure.  A July 1990 VA
hospital discharge summary included diagnoses of chronic
schizophrenia, undifferentiated type, and old right pontine
infarction, with residual right facial palsy and left
hemiparesis.  VA hospital records dated in May 1992 include a
diagnosis of chronic schizophrenia, undifferentiated type.

VA outpatient treatment records include a September 1991
report which noted diagnoses of status post brain concussion,
chronic headaches, memory loss and neuropsychiatric disorder,
and a November 1992 report which noted seizures, brain trauma
and organic brain syndrome.

Criteria

Despite the finality of the prior RO decision, the claim will
be reopened and the former disposition reviewed if new and
material evidence is presented or secured with respect to the
claim which has been disallowed.  38 U.S.C.A. � 5108;
38 C.F.R. � 3.156(a).  The United States Court of Veterans
Appeals (Court) has held that, when �new and material
evidence� is presented or secured with respect to a
previously and finally disallowed claim, VA must reopen the
claim.  Stanton v. Brown, 5 Vet. App. 563, 566 (1993).

With regard to petitions to reopen previously and finally
disallowed claims, the Board must conduct a two-part
analysis.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
First, the Board must determine whether the evidence
presented or secured since the prior final disallowance of
the claim is �new and material.�  Colvin v. Derwinski,
1 Vet. App. 171, 174 (1991).  The Court explained in Colvin
that �new evidence� is evidence that is not �merely
cumulative� of other evidence of record.  Id.  The Court has
also explained that evidence is �material� where it is
�relevant to and probative of the issue at hand� and where
it is of �sufficient weight or significance that there is a
reasonable possibility that the new evidence, when viewed in
the context of all the evidence, both new and old, would
change the outcome.�  Sklar v. Brown, 5 Vet. App. 140, 145
(1993); Cox v. Brown, 5 Vet. App. 95, 98 (1993); and Colvin,
1 Vet. App. at 174.

Second, if the Board determines that the evidence is �new
and material,� it must reopen the claim and evaluate the
merits of the claim in view of all the evidence, both new and
old.  Masors v. Derwinski, 2 Vet. App. 181, 185 (1992).  The
Court has reviewed and upheld these standards regarding the
issue of finality.  Reyes v. Brown, 7 Vet. App. 113 (1994).

The Court has recently clarified that, with respect to the
issue of materiality, the newly presented evidence need not
be probative of all the elements required to award the claim
as in this case dealing with a claim for service connection.
Evans v. Brown, 9 Vet. App. 273, 284, (1996) (citing Caluza
v. Brown, 7 Vet. App. 498, 506 (1995), aff�d 78 F.3d 604
(Fed. Cir. 1996) (table)).  However, such evidence must tend
to prove the merits of the claim as to each essential element
that was a specified basis for the last final disallowance of
the claim.  If the evidence is �new� and �probative,� then
it must be determined whether the evidence presents a
reasonable possibility of changing the outcome of the prior
decision based on all the evidence.  If these conditions are
met, then the evidence is both �new� and �material.�
Evans, 9 Vet. App. at 284.

In determining whether new and material evidence has been
submitted, the Board is obligated to review all evidence
submitted since the last final disallowance on any basis.
Id. at 285.  The relevant evidence added to the record since
the November 1983 final disallowance includes the veteran�s
statements in support of the claim, personal hearing
testimony and post-service treatment records.

The well groundedness requirement shall not apply with regard
to reopening disallowed claims and revising prior final
determinations.  Jones v. Brown, 7 Vet. App. 134 (1994).

Analysis

The Board finds that the veteran�s statements, and the
personal hearing testimony provided in support of the claim,
although �new� are not �material� because they are not
considered competent medical evidence.  The Court has held
that �where the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is �plausible� or �possible� is
required.�  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).
Lay assertions of medical causation cannot serve as the
predicate to reopen a claim under 38 U.S.C.A. � 5108.
Moray v. Brown, 5 Vet. App. 211, 214 (1993).

The Board finds that the additional private evidence is
either not �new� because it is cumulative of evidence
previously considered, or not �material� because it does
not provide a competent medical opinion relating a post-
service diagnosis to active service.  The Board also notes
that the medical history provided by the veteran for the
September 1970 examination is not supported by the veteran�s
service medical records or his recent personal hearing
testimony.  The Board is not required to accept the
credibility of a medical opinion which is based upon an
inaccurate factual history.  See Reonal v. Brown, 5 Vet. App.
458 (1993).

The Board finds that the medical evidence added to the record
is �new;� however, it is not �material� because it is not
probative of the veteran�s argument that his psychiatric
disorder is related to active service.  Although the post-
service medical records reflect treatment for psychiatric
disorders, there is no medical opinion stating that this
disorder is the result of an injury or disease incurred or
aggravated by active service.

The additional evidence submitted in support of this appeal
is either cumulative of prior evidence, not competent, not
probative of the issue or does not present a reasonable
possibility of changing the outcome.  The information does
not tend to prove the merits of the claim that was the
specified basis for the last final disallowance of the claim.
Evans, at 284.  Therefore, the Board finds that the evidence
submitted is not new and material and the claim is not
reopened.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156(a).

II.  Entitlement to an increased
evaluation for the residuals of head
trauma, currently rated as 10 percent
disabling.

Criteria

Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings.  See Francisco v.
Brown, 7 Vet. App. 55 (1994); 38 C.F.R. � 4.2 (1997).

Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities (Ratings Schedule),
38 C.F.R. Part 4.  The percentage ratings contained in the
Ratings Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations.  38 U.S.C.A. � 1155 (West 1991); 38 C.F.R.
� 4.1 (1997).

The Ratings Schedule provides that for brain disease due to
trauma with purely neurological disabilities, such as
hemiplegia, epileptiform seizures, facial nerve paralysis,
etc., following trauma to the brain, will be rated under the
diagnostic codes specifically dealing with such disabilities;
and that purely subjective complaints such as headache,
dizziness, insomnia, etc., recognized as symptomatic of brain
trauma, are assigned a 10 percent disability rating under
diagnostic code 9304, which may not be combined with any
other rating for a disability due to brain trauma.  Ratings
in excess of 10 percent for brain disease due to trauma under
diagnostic code 9304 are not assignable in the absence of a
diagnosis of multi-infarct dementia associated with brain
trauma.  38 C.F.R. � 4.124a, Diagnostic Code 8045 (1997).

Factual Background

Service medical records show that in May 1967 the veteran
sustained a laceration to the left side of his scalp when a
boat ran over him.  The veteran�s May 1967 discharge
examination revealed a normal clinical neurologic evaluation.

VA examinations in October 1967 included a neurologic
diagnosis of brain concussion, residual of head injury, left
temporal region, with severe degree of incapacity, and a
psychiatric diagnosis of depressive reaction, with moderate
degree of impairment.

The neurologic examiner noted that the veteran sustained a
head injury during active service, and that he was
unconscious for a few minutes and received 12 sutures on the
left side of his scalp.  The veteran complained that since
the accident he had experienced frequent headaches, insomnia,
nervousness, tension, anxiety, poor memory, poor
concentration, gastrointestinal discomfort with nausea,
vomiting and abdominal cramps.  The examiner noted that the
veteran was normocephalic; that external oculomotor movements
were present; the tongue was in midline without atrophy; gait
and station were normal; and there was no paresis, atrophy or
abnormal movements on motor and sensory testing.  However,
there was some hypesthesia along the left temporal region.

The psychiatric examiner noted that the veteran�s psychiatric
difficulty may have stemmed from his family situation, but
that some other factor related to a noxious effect of the
head trauma could not be stated at that time.

A July 1974 VA psychiatric examination noted that the veteran
had been recently involved in an automobile accident, and
that he had facial cuts, discoloration around the right eye
and his shoulders in a cast.  The examiner noted that during
the interview the veteran was in superficial contact, that
psychomotor skills were slightly retarded and thinking was
autistic and uncontrolled.

In July 1976, the RO severed service connection for a
psychiatric disorder because of clear and unmistakable error
in the April 1968 rating decision.  The Board denied
restoration in a November 1978 decision.

VA outpatient treatment records show that in April 1978 the
veteran complained of headaches, dizziness, tinnitus,
nervousness, tension, nightmares, restlessness and
gastrointestinal discomfort.  The diagnosis was residuals of
brain concussion and neuropsychiatric disorder.  A May 1979
report noted that the veteran complained of dull left-sided
headaches, restlessness, irritability, insomnia, depression
and suicidal thoughts.  The examiner noted there were no
focal neurologic defects, and that a June 1977
electroencephalogram (EEG) was normal.  An October 1979 note
reported an EEG in September 1979 was normal, and provided a
diagnosis of post-traumatic headaches.

A private neurologist�s opinion dated in May 1980 noted that
the veteran sustained a head trauma during active service,
and that the veteran had been followed since February 1980.
The opinion noted the veteran�s symptoms included headaches,
nervousness, restlessness, irritability, depression, insomnia
with nightmares, forgetfulness and dizzy spells.  The
diagnoses included post-traumatic headaches and post-
traumatic syndrome.

In December 1980, the Board denied service connection for a
psychiatric disorder, including psychiatric disorder
secondary to the veteran�s service-connected brain
concussion.

VA outpatient treatment records dated in 1983 include
complaints of headaches, dizziness and weakness in the arms
and legs.  A September 1983 report noted that a computed
tomography (CT) scan of the head was normal and physical
examination was unremarkable.  The diagnosis was tension
vascular headaches.

VA hospital records dated in October 1986 included diagnoses
of brainstem infarct and high blood pressure.  The report
noted that the veteran�s clinical picture was compatible with
a brainstem infarct.

In April 1988, the Board denied a rating higher than 10
percent for the residuals of a brain concussion.  The Board
found that the veteran�s brain infarct was unrelated to an
injury during active service.

VA records show that the veteran was discharged in July 1990
from a period of hospital treatment, and that reported
diagnoses included chronic schizophrenia, old right pontine
infarction with residual right facial palsy and left
hemiparesis, hypertension and bronchopneumonia.

At the personal hearing in January 1991, the veteran�s spouse
testified that the veteran experienced very severe headaches
for which he had received hospital treatment.  Tr., p.8.  At
the personal hearing in November 1993, the veteran testified
that his headaches had become more frequent and more severe.
Tr., p.4.

VA outpatient treatment records dated in September 1991
include diagnoses of status post brain concussion, chronic
headaches, memory loss and neuropsychiatric disorder.  The
report noted a March 1991 CT scan was negative for masses.

VA neurologic examination in December 1994 found status post
trauma to head with brain concussion in 1967, status post
trauma to head in an automobile accident in 1974, status post
cerebrovascular accident and seizure disorder.  The veteran
reported that over the past 5 or 6 years he had experienced
seizures during which he would loss consciousness and fall
down.  The examiner noted the veteran exhibited no aphasia,
apraxia or agnosia, and that he had no cranial nerve
impairment, a normal gait and no motor or sensory deficits.

The examiner noted that, after reviewing the claims folder
and medical records, the veteran had a mixed seizure disorder
unrelated to the veteran�s 1967 head injury.  The examiner
noted that the veteran sustained an intervening head trauma
in 1974, that he had developed high blood pressure, diabetes
mellitus and that he had experienced cardiovascular
accidents.  The examiner also noted that the veteran�s
seizures began after the cardiovascular accident, many years
after service.

Analysis

Initially, the Board notes that the veteran�s increased
rating claim is found to be well-grounded under 38 U.S.C.A.
� 5107(a).  That is, he has presented a claim which is
plausible.  Murphy v. Derwinski, 1 Vet. App. 78 (1990).  In
general, an allegation of increased disability is sufficient
to establish a well-grounded claim seeking an increased
rating.  Proscelle v. Derwinski, 2 Vet. App. 629 (1992).  The
Board is also satisfied that all relevant facts have been
properly developed, and that no further assistance is
required in order to satisfy the duty to assist mandated by
38 U.S.C.A. � 5107(a).

The Board notes that the recent medical evidence does not
reveal any neurological disability or diagnosis of multi-
infarct dementia related to the veteran�s head trauma during
active service.  The veteran�s complaints of chronic
headaches without evidence of neurologic disabilities or a
diagnosis of multi-infarct dementia related to the inservice
injury warrant no more than a 10 percent disability rating.
In fact, the Ratings Schedule specifically prohibits combined
or increased ratings in the absence of demonstrable
neurologic disability or multi-infarct dementia.  See
38 C.F.R. � 4.124a, Diagnostic Code 8045.

As shown above, the Board has considered all potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or
not they have been raised by the veteran or his
representative, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).  The Board finds no provision upon which to
assign a higher rating.

When all the evidence is assembled, the Secretary, is then
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against the claim, in which case the claim is
denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
The Board finds the preponderance of the evidence is against
the claim for an increased rating.

ORDER

The veteran not having submitted new and material evidence to
reopen the claim for entitlement to service connection for a
psychiatric disorder, the appeal is denied.

Entitlement to an increased rating for the residuals of a
head trauma is denied.

	RONALD R. BOSCH
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: C W SYMANSKI

benefit: pension

text: The veteran’s nonservice connected pension benefits were properly reduced for the period of July 1, 1996 through June 1997 on account of the receipt of a Workers’ Compensation settlement payment; therefore, his appeal is denied.

text:
Citation Nr: 9809000
Decision Date: 03/25/98    Archive Date: 04/14/98

DOCKET NO.  96-41 885	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Columbia, South Carolina

THE ISSUE

Whether the reduction in nonservice connected pension
benefits for the period of July 1, 1996 through June 1997 on
account of the receipt of a Workers� Compensation settlement
payment was proper.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Debbie A. Riffe, Associate Counsel

INTRODUCTION

The veteran had active service from June 1974 to June 1978.
This appeal arises from a June 1996 administrative decision
of the Columbia, South Carolina Regional Office (RO), which
reduced the veteran's nonservice connected pension benefits
for the period of July 1, 1996 through June 1997 on account
of the receipt of a Workers� Compensation settlement payment.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his receipt of a Workers�
Compensation settlement payment should not have been
considered by the RO as countable income so as to reduce his
payment of nonservice connected pension benefits for the one
year period beginning July 1, 1996.  He maintains that the
settlement payment was to compensate him for being out of
work due to disability for a period of time before he applied
for VA pension benefits.  The veteran disputes whether the RO
can count as income for VA pension purposes his �back pay�.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran�s claim that his
nonservice connected pension benefits were improperly reduced
for the period of July 1, 1996 through June 1997 on account
of the receipt of a Workers� Compensation settlement payment
lacks legal merit.

FINDINGS OF FACT

1.  In June 1996, the veteran notified the RO of the receipt
of a Workers� Compensation settlement payment in the amount
of $13,010.64.

2.  By letter in June 1996, the RO reduced the veteran�s
nonservice connected pension benefits, effective July 1, 1996
through June 1997, on the basis that the RO counted
$13,010.64 from a Workers� Compensation settlement as
nonrecurring income for one year.

3.  By letter in September 1996, the RO informed the veteran
of a further reduction in his nonservice connected pension
benefits, effective July 1, 1996 through June 1997, on the
basis that the RO counted $13,050, instead of $13,010.64,
from a Workers� Compensation settlement as nonrecurring
income for one year.

CONCLUSION OF LAW

The veteran�s receipt of a Workers� Compensation settlement
payment is countable as income for nonservice connected
pension purposes; accordingly, the reduction of pension
benefits for the period of July 1, 1996 through June 1997 was
proper.  38 U.S.C.A. � 5112(b); 38 C.F.R. �� 3.271, 3.272,
3.660 (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Background

In May 1995, the veteran submitted a claim for nonservice
connected pension benefits.  On the claim, he reported that
his only family income consisted of $362 per month in AFDC.

By letter in August 1995, the RO informed the veteran that
his claim for nonservice connected pension benefits was
granted, effective June 1, 1995, and that his award was based
on no income whatsoever.

In June 1996, the veteran notified the RO of the receipt of a
Workers� Compensation settlement payment in the net amount of
$13,010.64.

By letter in June 1996, the RO notified the veteran of a
reduction in his nonservice connected pension benefits,
effective July 1, 1996 through June 1997, on the basis that
the RO counted $13,010.64 from a Workers� Compensation
settlement as nonrecurring income for one year.

In an August 1996 letter, the veteran expressed his
disagreement with the reduction in pension benefits on
account of his receipt of a Workers� Compensation settlement
payment.  He stated that this settlement was �back pay� for
not having income for a period of one year and six months.
The veteran argued that this back pay should not be
considered countable income for VA pension purposes.  He
asserted that he was not in receipt of VA pension for the
period of time that he was compensated by the settlement
payment.

On a substantive appeal statement received in September 1996,
the veteran indicated that his Workers� Compensation
settlement compensated him for being out of work for over a
year due to a back disability.  He asserted that as he was
not in receipt of VA pension at this time the VA should not
count as income for pension purposes his �back pay�.  With
his statement, the veteran submitted a South Carolina
Workers� Compensation Commission Attorney Fee Petition, dated
in May 1996, which shows that out of a total of $18,000 in
compensation the veteran received $13,050 and not $13,010.64
as previously noted.

By letter in September 1996, the RO notified the veteran of a
further reduction in nonservice connected pension benefits,
effective July 1, 1996 through June 1997, on the basis that
the RO counted $13,050 from a Workers� Compensation
settlement as nonrecurring income for one year.

II.  Analysis

According to regulatory criteria, in determining annual
income, all payments of any kind or from any source shall be
counted as income during the 12-month annualization period in
which received unless specifically excluded under 38 C.F.R. �
3.272.  38 C.F.R. � 3.271(a).  Nonrecurring income means
income received or anticipated on a one-time basis during a
12-month annualization period (e.g., an inheritance), and
pension computations of income will include nonrecurring
income for a full 12-month annualization period following
receipt of the income.  38 C.F.R. � 3.271(a)(3).

The exclusions from countable income, as set forth in 38
C.F.R. � 3.272, include the following:  welfare, maintenance,
VA pension benefits, reimbursement for casualty loss, profits
realized from a property sale, joint accounts, unreimbursed
medical expenses, expenses of last illnesses and burials and
just debts, educational expenses, certain portion of a
child�s income, Domestic Volunteer Service Act program
payments, distribution of funds under 38 U.S.C.A. � 1718,
child�s available income under hardship circumstances,
survivor benefit annuity paid by the Department of Defense,
Agent Orange settlement payments, restitution to individuals
of Japanese ancestry, proceeds from the cash surrender of a
life insurance policy which represent a return of insurance
premiums, income received by American Indian beneficiaries
from trust or restricted lands, Radiation Exposure
Compensation Act payments, and Alaska Native Claims
Settlement Act payments.

Where reduction or discontinuance of a running award of
improved pension or dependency and indemnity compensation is
required because of an increase in income, the reduction or
discontinuance shall be made effective the end of the month
in which the increase occurred.  38 C.F.R. � 3.660.

In this case, the law is very clear and leaves no alternative
but to consider the veteran�s Workers� Compensation
settlement payment as countable, and not excludable, income
for the purpose of determining his entitlement to pension.
In

computing income, payment of any kind from any source will be
counted as income unless specifically excluded under
38 C.F.R. � 3.272.  A review of the provisions of � 3.272
does not show that the veteran�s income meets any of the
specified exclusions.  While the veteran may have received
this settlement in compensation for a period of time prior to
his award of nonservice connected pension, this fact would
still not be a basis for excluding that from countable income
under the law.  It is the date of receipt of the settlement
payment, and not the date on which the veteran became
entitled to the settlement, which is determinative for VA
pension purposes.

Further, as the veteran�s settlement was a one-time payment,
it is considered to be nonrecurring income for a full 12-
month annualization period following receipt of the income
under 38 C.F.R. � 3.271(a)(3).  The veteran notified the RO
of the receipt of the settlement payment in June 1996.  The
Board finds that the RO properly reduced the veteran's
pension award for the one year period beginning July 1, 1996,
which is in accordance with 38 C.F.R. � 3.600.

The United States Court of Veterans Appeals has held that in
a case where the law is dispositive of the claim, the claim
should be denied because of lack of entitlement under the
law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  In this
case, there is no dispute as to the pertinent facts, and
given the absence of any law which would specifically exclude
income from a Workers� Compensation settlement payment, the
money received is countable as income for the purposes of
determining the veteran�s nonservice connected pension
entitlement and may not be excluded.  Accordingly, the RO
reduced the veteran�s pension award effective for a one year
period beginning July 1, 1996 on the basis of the receipt of
the one-time settlement payment, and in light of the
governing criteria cited above the Board concludes that such
reduction was proper.

ORDER

The veteran�s nonservice connected pension benefits were
properly reduced for the period of July 1, 1996 through June
1997 on account of the receipt of a Workers� Compensation
settlement payment; therefore, his appeal is denied.

	C. W. SYMANSKI
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: ALAN S PEEVY

text: The appeal is denied.

text:
Citation Nr: 9811000
Decision Date: 04/09/98    Archive Date: 04/28/98

DOCKET NO.  97-04 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUES

1.  Whether the 10 percent evaluation for bilateral defective
hearing was properly reduced to noncompensably disabling.

2.  Entitlement to an evaluation in excess of 10 percent for
bilateral defective hearing.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Howard M. Scott, Associate Counsel

INTRODUCTION

The veteran had active service from July 1943 to February
1946.  This matter comes before the Board of Veterans�
Appeals (BVA or Board) on appeal from a September 1996
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Cleveland, Ohio, which denied the veteran's
claim for an increased evaluation for bilateral defective
hearing, evaluated as 10 percent disabling, and instead
reduced that evaluation to non-compensably disabling.  The
veteran is represented by Disabled American Veterans.

The Board observes that the September 1996 rating decision
arose from a claim by the veteran that his hearing disability
had increased in severity and that a rating in excess of 10
percent was therefore warranted.  In view of the nature of
the restoration issue and this claim for an increased rating
by the veteran which led to the reduction to a compensable
rating, the Board finds that both issues as styled on the
cover page of this decision are properly in appellate status.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that the reduction in the
evaluation for bilateral defective hearing, from 10 percent
disabling to non-compensably disabling, was improper because
an evaluation of 10 percent or less fails to accurately
reflect the severity of his disability.  The veteran
maintains that an evaluation in excess of 10 percent is
warranted.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against entitlement to restoration of a 10
percent rating for the veteran�s bilateral defective hearing
and that the preponderance of the evidence is against
entitlement to an evaluation in excess of 10 percent for
bilateral defective hearing.

FINDINGS OF FACT

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

2.  A 10 percent evaluation was granted for defective
hearing, effective April 1994, based on a July 1994 VA
audiological examination that noted Level III hearing in the
right ear, and Level IV hearing in the left ear.

3.  A May 1996 VA audiological examination noted Level I
hearing in both the right and left ears.  An October 1997 VA
audiological hearing noted Level I hearing in the right ear
and Level II hearing in the left ear.

CONCLUSIONS OF LAW

1.  The criteria for restoration of a 10 percent evaluation
for bilateral defective hearing have not been met.  38
U.S.C.A. �� 1155, 5107(a) (West 1991); 38 C.F.R. �� 3.344(c),
4.1, 4.2, 4.10, 4.87, Diagnostic Code 6100 (1997).

2.  The criteria for an evaluation in excess of 10 percent
for bilateral defective hearing have not been met.
38 U.S.C.A. � 1155, 5107 (West 1991); 38 C.F.R. � 4.87,
Diagnostic Code 6100 (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As a preliminary matter, the Board finds that the veteran's
claim is "well grounded" within the meaning of 38 U.S.C.A. �
5107(a) (West 1991).  See Proscelle v. Derwinski, 2 Vet.App.
629, 632 (1992).  The Board is also satisfied that all
relevant facts have been properly and sufficiently developed.

Service connection for defective hearing was granted,
effective February 1946, and a noncompensable evaluation
assigned.  This evaluation remained in effect until a July
1994 rating decision increased the rating to 10 percent,
effective April 1994.  This decision was based on a July 1994
VA audiological examination report that noted pure tone
thresholds, in decibels, as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
20
20
35
60
75
LEFT
20
20
35
60
85

Average pure tone decibel loss was reported to be 48 in the
right ear and 50 in the left ear.  Speech audiometry revealed
speech recognition ability of 80 percent in the right ear and
76 percent in the left ear.

In April 1996, the veteran submitted a claim for an increased
evaluation for his defective hearing, asserting that his
hearing had become worse since the last examination, and
requesting another VA audiological examination, which was
administered in May 1996.  This examination report noted pure
tone thresholds, in decibels, to be as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
30
30
40
65
75
LEFT
25
30
40
65
90

Average puretone decibel loss was reported to be 52 in the
right ear and 56 in the left ear.  Speech audiometry revealed
speech recognition ability of 96 percent in the right ear and
of 92 percent in the left ear.

Based on these findings, in July 1996, the RO notified the
veteran that it proposed to reduce the evaluation for the
veteran's defective hearing from 10 percent to
noncompensable.  In addition, the RO notified the veteran of
his rights to a predetermination hearing and to submit
additional evidence.  The veteran responded that same month,
objecting to the proposed reduction, but he did not submit
additional evidence or request a hearing.  In a rating
decision dated in September 1996, the RO reduced the
evaluation for defective hearing from 10 percent to
noncompensable.

The veteran underwent an additional VA audiological
examination in October 1997.  Pure tone thresholds, in
decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
25
30
40
65
85
LEFT
20
25
40
70
95

Average puretone decibel loss was reported to be 55 in the
right ear and 58 in the left ear.  Speech audiometry revealed
speech recognition ability of 92 percent in the right ear and
of 92 percent in the left ear.

When the RO reduced the disability rating for defective
hearing in September 1996, from 10 percent to noncompensable,
the 10 percent evaluation had been in effect for less than
five years, since April 1994.  Therefore the evaluation could
be reduced on the basis of an examination showing
improvement.  See 38 C.F.R. � 3.344(c) (1997).  Furthermore
38 C.F.R. � 3.344(a) and (b), which govern reductions of
ratings in effect for five years or more do not apply.  The
Board notes that the RO�s reduction of the veteran�s
disability evaluation satisfies the procedural requirements
of 38 C.F.R. � 3.105(e).  However, in all rating reduction
cases, regardless of whether the rating has been in effect
for five years or more, a reduction must be based on the
entire history and on an actual change in condition, not just
a change in the standards of the examination.  See generally
38 C.F.R. ��  4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet.
App. 413, 420-21 (1993) (quoting Schafrath v. Derwinski, 1
Vet. App. 589, 594-95 (1991)).

Disability evaluations are based on the comparison of
clinical findings with the relevant schedular criteria.  38
U.S.C.A. � 1155.  Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise the lower rating will be assigned.  38 C.F.R.
� 4.7.

Modern pure tone audiometry testing and speech audiometry
utilized in VA audiological clinics are well adapted to
evaluate the degree of hearing impairment accurately.
Methods are standardized so that the performance of each
person can be compared to a standard of normal hearing, and
ratings are assigned based on that standard.  The assigned
evaluation is determined by mechanically applying the rating
criteria to certified test results.  Lendenmann v. Principi,
3 Vet. App. 345, 349 (1992).

In this respect, disability evaluations of defective hearing
range from non-compensable to 100 percent based on organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination tests together with the
average hearing threshold level as measured by pure tone
audiometry tests in the frequencies of 1,000, 2,000, 3,000
and 4,000 cycles per second.  To evaluate the degree of
disability for service-connected defective hearing, the
rating schedule establishes eleven auditory acuity levels
designated from level I for essentially normal acuity through
level XI for profound deafness.  38 C.F.R. �� 4.85, 4.87,
Diagnostic Codes 6100 to 6110.

In this case, the audiometry findings from the July 1994 VA
examination are consistent with Level III hearing in the
right ear and Level IV hearing in the left ear.  Such
findings warrant a 10 percent evaluation under 38 C.F.R.
�� 4.85, 4.87, Diagnostic Code (DC) 6101.  The audiometry
findings from the two subsequent VA examinations, however, do
show improvement.  The March 1995 VA examination audiometry
findings are consistent with Level I hearing in the right ear
and Level I hearing in the left ear, while the audiometry
findings from the October 1997 VA examination are consistent
with Level I hearing in the right ear and Level II hearing in
the left.  These later findings do not warrant a compensable
evaluation under DC 6100.

Under 38 C.F.R. � 3.344(c) a reduction in rating is warranted
when the disability shows improvement.  As the later VA
examinations do show such improvement in the veteran's
defective hearing, the Board finds that the September 1996
rating reduction from 10 percent to noncompensable was
warranted.

In view of the fact that the Board finds that the rating
reduction from 10 percent to noncompensable was warranted, it
follows that the Board finds further that the preponderance
of the evidence is against an evaluation in excess of 10
percent for bilateral defective hearing.

In reviewing both issues, the Board has considered the
provisions of 38 U.S.C.A. � 5107(b), but there is not such a
state of equipoise of the negative evidence with the positive
evidence to otherwise permit favorable determinations with
regard to either issue.

In closing, the Board stresses that it is bound by the
diagnostic criteria set forth in applicable regulations.
Should the severity of the veteran�s hearing loss increase in
the future, he may advance a new claim for an increased
evaluation.

ORDER

The appeal is denied.

	ALAN S. PEEVY
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: HOLLY E MOEHLMANN

condition: gi

condition: hypertension

text:
Citation Nr: 9812000
Decision Date: 04/17/98    Archive Date: 05/06/98

DOCKET NO.  95-00 043	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to an increased rating for irritable bowel
syndrome, currently rated as 10 percent disabling.

2.  Entitlement to service connection for kidney stones.

3.  Entitlement to service connection for duodenal ulcer
disease.

4.  Entitlement to service connection for arteriosclerotic
heart disease with hypertension and atrial fibrillation.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

W. Sampson, Associate Counsel

INTRODUCTION

The veteran's active military service extended from May 1941
to July 1945.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1993 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Francisco, California.  That rating decision granted
service connection for irritable bowel syndrome and assigned
a 10 percent rating, effective in June 1991, and denied
service connection for hypertension, heart disease, ulcers
and kidney stones.  Jurisdiction of the case has since then
been transferred to the Nashville, Tennessee RO.

In May 1997, a hearing was held before Holly E. Moehlmann,
who is the Board member making this decision and who was
designated by the Chairman to conduct that hearing, pursuant
to 38 U.S.C.A. � 7102(b) (West 1991 & Supp. 1997).

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he should be granted a higher
evaluation for his service-connected irritable bowel
syndrome.  He argues that he has the symptoms of alternating
diarrhea and constant pain required for a higher evaluation.
He also argues that he should be service connected for kidney
stones as a direct result of the malaria he contracted while
in service which also caused his hypertension.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files.  Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against an increased rating for irritable bowel
syndrome, and the appellant has not met the initial burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claims for service
connection for kidney stones, duodenal ulcer disease and
heart disease with hypertension and atrial fibrillation are
well grounded.

FINDINGS OF FACT

1.  The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal for an
increased rating.

2.  The veteran's service-connected irritable bowel syndrome
is manifested by chronic constipation and complaints of pain
and discomfort.

3.  The service-connected irritable bowel syndrome does not
result in more than moderate disability.

4.  There is no competent medical evidence of current kidney
stones or duodenal ulcer disease.

5.  No medical evidence has been presented showing that
arteriosclerotic heart disease with hypertension and atrial
fibrillation was present during service or in the first post
service year.

6.  No medical evidence has been presented which links
arteriosclerotic heart disease with hypertension and atrial
fibrillation, with either active service or any service
connected disability.

7.  The veteran has not presented plausible claims for
service connection for kidney stones, duodenal ulcer disease
or arteriosclerotic heart disease with hypertension and
atrial fibrillation.

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for
irritable bowel syndrome have not been met.  38 U.S.C.A.
�� 1155, 5107 (West 1991);  38 C.F.R. Part 4, including � 4.7
and Diagnostic Code 7319 (1997).

2.  The appellant has not presented well-grounded claims for
service connection for kidney stones, duodenal ulcer disease,
and arteriosclerotic heart disease with hypertension and
atrial fibrillation, and therefore there is no statutory duty
to assist the appellant in developing facts pertinent to
these claims.  38 U.S.C.A. �� 101(16), 1110, 1131, 5107(a)
(West 1991); 38 C.F.R. � 3.303(b), 3.310 (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Increased Evaluation for Irritable Bowel Syndrome.

The veteran's claim is "well grounded" within the meaning of
38 U.S.C.A. � 5107(a) (West 1991).  That is, he has presented
a claim which is plausible.  His assertion that his irritable
bowel syndrome is more severe than currently evaluated is
plausible.  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).  All relevant
facts have been properly developed and no further assistance
to the veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. � 5107(a).

Service-connected disabilities are rated in accordance with
VA�s Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1997)
(Schedule), which are based on average impairment of earning
capacity.  Separate diagnostic codes identify the various
disabilities.  38 U.S.C.A. � 1155 (West 1991); 38 C.F.R. Part
4 (1997).  The disability ratings evaluate the ability of the
body to function as a whole under the ordinary conditions of
daily life including employment.  Evaluations are based on the
amount of functional impairment; that is, the lack of
usefulness of the rated part or system in self support of the
individual.  38 C.F.R. � 4.10 (1997).

Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for the higher rating.  38 C.F.R. � 4.7 (1997).  When a
disability is encountered that is not listed in the rating
schedule it is permissible to rate under a closely related
disease or injury in which the functions affected, the
anatomical location and the symptomatology are closely
analogous.  38 C.F.R. � 4.20 (1997).

In considering the severity of a disability it is essential
to trace the medical history of the veteran.  38 C.F.R.
�� 4.1, 4.2 (1997), Peyton v. Derwinski, 1 Vet. App. 282
(1991).  While the regulations require review of the recorded
history of a disability by the adjudicator to ensure a more
accurate evaluation, the regulations do not give past medical
reports precedence over the current medical findings.  Where
an increase in the disability rating is at issue, the present
level of the veteran's disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The veteran is service connected for an anxiety reaction
incurred during his service in World War II.  In a July 1982
letter addressed to VA from the veteran's private physician,
he writes the following regarding the veteran's medical
condition:

It is a well known fact that anxiety-
provoking situations can cause severe
irritable bowel symptoms and I feel very
strongly that [the veteran's] irritable
bowel syndrome is directly related to his
service-connected disability.

Based on the above opinion, and an August 1992 VA examination
in which the veteran gave a history of experiencing
constipation �off and on for many years,� he was service
connected for irritable bowel syndrome, secondary to his
service-connected anxiety disorder in a March 1993 decision.

In a January 1994 personal hearing, the veteran testified
that he developed an irritable bowel during service and that
to this day it was getting worse, because he could not move
his bowels without taking something.  He added that he had
�very, very bad problems trying to move my bowels . . . I�ve
been on everything that would move bowels.�  (Transcript, p.
9)  When asked by his representative if he ever had diarrhea,
he replied that he did get diarrhea occasionally.

A VA stomach examination was conducted in April 1997.  The
veteran's major complaint was bloating in the lower abdomen
and right side of the abdomen, mostly after meals.  He
indicated problems with constant constipation, even though
eating a lot of fiber.  He reported loose stools rarely, if
ever.  The examiner evaluated the veteran with chronic
constipation and no diarrhea.  The diagnosis was chronic
constipation and bloating.

The veteran�s service connected irritable bowel syndrome is
currently rated as 10 percent disabling under Diagnostic Code
7319 for irritable colon syndrome.  That rating contemplates
moderate symptoms with frequent episodes of bowel disturbance
with abdominal distress.  A higher or 30 percent rating
requires severe symptoms with diarrhea, or alternating
diarrhea and constipation, with more or less constant
abdominal distress.  38 C.F.R. Part 4, � 4.114, Diagnostic
Code 7319 (1997).  Because the medical evidence has
consistently shown that the veteran�s irritable bowel
syndrome is manifest almost exclusively by constipation
without diarrhea, a 30 percent evaluation under this
diagnostic code is not warranted.  The preponderance of the
evidence is therefore against a higher evaluation.  Because
the evidence for and against a higher evaluation is not
evenly balanced, the rule affording the veteran the benefit
of the doubt is not for application.  38 U.S.C.A. � 5107(b)
(West 1991); 38 C.F.R. � 3.102 (1996).  Gilbert v. Derwinski,
1 Vet. App. 49, 55 (1990).

II.  Service Connection for Kidney Stones, Ulcer and Heart
Disease.

A.  Preliminary Matters

Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service.  38 U.S.C.A. �� 101(16), 1110, 1131 (West
1991); 38 C.F.R. �� 3.303, 3.304 (1997).  Certain diseases,
such as calculi of the kidney, peptic ulcers and
arteriosclerosis may be presumed to have been incurred during
active military service if manifest to a degree of 10 percent
within the first year following active service.  38 U.S.C.A.
�� 1101, 1112, 1137 (West 1991 & Supp. 1997); 38 C.F.R.
�� 3.307, 3.309 (1997).

The law provides that �a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.�  38 U.S.C.A. � 5107(a) (West 1991).
Establishing a well grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is service-
connected; it requires evidence relevant to the requirements
for service connection and of sufficient weight to make the
claim plausible and capable of substantiation.  See Franko v.
Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2
Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990).

The three elements of a �well grounded� claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
aff�d per curiam, 78 F.3d 604 (Fed. Cir. 1997);  see also
38 U.S.C.A. � 1110 (West 1991); 38 C.F.R. � 3.303 (1997).

Generally, competent medical evidence is required to meet
each of the three elements.  However, for the second element
the kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).  For some
factual issues, such as the occurrence of an injury,
competent lay evidence may be sufficient.  However, where the
claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required.  Id. at 93.  Lay evidence is also acceptable to
show incurrence in service if the veteran was engaged in
combat and the evidence is consistent with the circumstances,
conditions and hardships of such service, even though there
is no official record of such incurrence.  38 U.S.C.A. � 1154
(West 1991); 38 C.F.R. � 3.304(d) (1997).

Service connection may also be granted for a disability which
is proximately due to and the result of a service-connected
disease or injury.  38 C.F.R. � 3.310(a) (1995).  A claim for
secondary service connection, like all claims, must be well
grounded.  38 U.S.C.A. � 5107(a); Proscelle v. Derwinski, 2
Vet. App. 629, 633 (1992).  Similar to the Caluza analysis
above, the veteran must provide evidence of (1) a current
disability, and (2) a link or nexus between the current
disability and a service connected disability, as shown by
competent lay or medical evidence as the situation warrants.
See Locher v. Brown, 9 Vet. App. 535 (1997), Reiber v. Brown,
7 Vet. App. 513, 516 (1995).  Where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is plausible or
possible is required.  Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).

B.  Factual Background

Service medical records show that the veteran was
hospitalized in 1945 for treatment of psychoneurosis.
Examination in January noted a slight systolic murmur at the
apex but no irregularities or enlargement.  Blood pressure
readings in service were within normal limits.  It was also
noted that he had had kidney disturbance in civilian life,
that in service he began to have disturbance of kidney
function with pains in the area, and that kidney testing was
accomplished.  The diagnosis was psychoneurosis.  He was
discharged from service because of chronic psychoneurosis,
anxiety state, with no evidence of organic disease.

On VA examination in August 1946 blood pressure was 120/70,
and the cardiovascular system was normal.  An intravenous
pyelogram accomplished for VA purposes in January 1947
revealed normal kidneys and ureters.

Private medical records obtained from the veteran's physician
in Australia show that renal colic and renal calculi were
suspected in 1975 and 1977.  In March 1979 he underwent a
ureterolithotomy with removal of a small calculus and in May
1987 underwent left carotid endartarectomy.  In letters dated
in 1987, 1988 and 1992, Sarvamitra Awasthi, M.D., reported
that the veteran had been under his care for peptic ulcer,
hypertension and paroxysmal atrial fibrillation and that his
anxiety neurosis exacerbated his symptoms.

In an August 1992 VA examination, the veteran gave a history
of left kidney stone found in 1944 and surgical removal of
the kidney stone in approximately 1967 in Australia, and no
recurrent stones since that time.  He indicated a kidney
evaluation about three years prior with an X-ray examination
which showed no recurrent stone.  He also stated that he
noticed occasional irregular heart beat with palpitations
since about 1980 and was diagnosed with possible atrial
fibrillation.  He stated that he was diagnosed with
hypertension in about 1948, and was currently taking
medication.  In about 1991, he experienced epigastric
discomfort and was found to have pyloric ulcers with severe
gastritis.  The impression included history of kidney stone,
history of atrial fibrillation, hypertension, and history of
pyloric ulcers and gastritis.  Following an X-ray examination
and ECG, atherosclerotic vascular disease was diagnosed.  An
ultrasound was recommended, which in September 1992 showed a
calcific density in the left kidney with mild shadowing which
�could represent a renal stone,� and resulted in an
impression of possible left renal stone.

In a January 1994 personal hearing at the RO, the veteran
testified that he started having problems with his kidneys
during service when he contracted malaria, and felt that this
caused his hypertension and a heart condition.  He also
testified that while on leave during service, prior to being
shipped out, he was advised by a private doctor to �have
them out� before he went any further into the military.  He
had no treatment or pain with his kidneys after service until
the 1970�s.  In response to a question by the hearing
officer, he stated that to the best of his knowledge, he
never passed a kidney stone while in service.  Finally he
added that although he was under treatment by a urologist for
his prostrate, he had not had a kidney stone lately.

Records received from the veteran's private urologist in
April 1994 show treatment dating from August 1988 primarily
for prostate disease.  In an August 1988 letter, the
urologist related the veteran�s nine year history of
nephrolithiasis which appeared to require a basket
extraction.  An April 1990 kidney, ureter and bladder series
report noted partially obscured renal outlines, but no
definite calcifications present.  In January 1994, the
veteran complained of bilateral flank pain and lower back
pain for the past two weeks.  He denied any lower urinary
outlet obstructive or irritative symptoms, gross hematuria,
nausea or vomiting.  Urinalysis showed no abnormalities and
the diagnosis was bilateral flank and back pain, �most
likely musculoskeletal in origin.�

Record of VA outpatient treatment from February 1991 to May
1994 show treatment primarily for psychiatric and orthopedic
disorders as well as high cholesterol.  A February 1994
record notes complaints of epigastric pain probably secondary
to stress.  There are repeated references to medication
bothering his stomach throughout the records.  This complaint
is also noted in a June 1994 letter from his private
ophthalmologist in which it is noted that the veteran
complained that eye drops caused �significant problems with
his heart in terms of palpitations and periodically upsets
his stomach.�  An April 1997 letter from East Tennessee
Heart Consultants notes that the veteran began treatment in
December 1996 with complaints of chest pain and exertional
dyspnea.  �He gave a history, at that time, of chronic
cardiac murmur of undetermined etiology and some history of
arrhythmias . . .�  His current medical condition was
described as coronary artery disease with a history of stable
exertional angina, presently controlled medically.

In the veteran's April 1997 VA stomach examination, his major
complaint as previously noted was bloating in the lower
abdomen and right side of the abdomen, mostly after meals.
He denied any current symptoms of peptic ulcer disease.
Although he indicated that he had been on Zantac for many
years, he did not feel that it helped much.  He also
complained that the Pepcid he had been recently prescribed
gave him more gas and discomfort, and it was discontinued at
this examination.  On examination, there was no sign of
malnutrition, he denied vomiting, and only rarely had nausea.
He had no hematemesis or melena.  His symptoms were described
as fairly chronic and not episodic.  The diagnosis was
�[h]istory of pyloric channel ulcer, gastritis, and
duodenitis in 1991.�  In addressing the issue of whether the
peptic ulcer disease might be aggravated by his service-
connected irritable bowel syndrome, he wrote the following:

Patient apparently was successfully
treated for his ulcer and gastritis in
1991.  He has no symptoms at present
suggestive of these problems.  Even
though symptoms of peptic ulcer disease
and irritable bowel both occur in the
abdomen, they involve different areas of
the gastrointestinal tract, and are
independent disease processes.  I would
not think that irritable bowel would
aggravate peptic ulcer disease or vice
versa.

C.  Analysis

In all of the veteran�s claims, he is alleging that his
disorders were either incurred in service, or are caused by a
service-connected disability.  For the former, or �direct�
basis, the determinative issues presented are (1) whether the
veteran had the disorder during service; (2) whether he has
any current disorder; and, if so, (3) whether this current
disability is etiologically related to active service.  For
the �secondary� basis, the determinative issues include (2)
above, i.e., whether he has a current disorder, and whether
this current disability is etiologically related to a
service-connected disability.  The Board concludes that
medical evidence is needed to lend plausible support for all
of the issues presented by this case because they involve
questions of medical fact requiring medical knowledge or
training for their resolution.  Caluza v. Brown, 7 Vet. App.
498, 506 (1995); see also Layno v. Brown, 6 Vet. App. 465,
470 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).  The Board finds that the veteran has not presented
well-grounded claims for any of his claimed disorders,
because he has not provided the medical evidence necessary
for each disorder.  Caluza at 506.

Kidney Stones

With regard to the veteran's claim for kidney stones, no
medical evidence has been presented showing that the veteran
has any current kidney stone formation.  While the medical
evidence shows a history of kidney stone formation, with
extraction most recently in Australia in 1979, there is no
indication of any current stone formation.  An April 1990
radiology report specifically denied the presence of any
definite calcifications, and complaints of lower flank pain
in January 1994 were determined to be most likely
musculoskeletal in origin.  Although a September 1992
ultrasound resulted in an impression of �possible� left
renal stone based on mild shadowing, this does not constitute
a basis on which to render the veteran's claim of a current
disability as plausible.  See Tirpak v. Derwinski, 2 Vet.
App. 609 (1992) (when a doctor�s opinion is expressed in
terms of �may or may not� it is not sufficient to establish
a well-grounded claim).  Moreover, by the veteran's own
January 1994 testimony, he denied having had a kidney stone
�lately.�

The veteran does not meet the first element required for the
claim for kidney stones to be well grounded.  See Caluza, 7
Vet. App. at 506.  Medical proof of a current disability is
an absolute prerequisite to presenting a well-grounded claim
for service connection on either a direct or secondary basis.
See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (absent
�proof of a present disability there can be no claim�).
See also Degmetich v. Brown, 104 F.3d 1328 (1997) (holding
that Secretary�s and Court�s interpretation of sections 1110
and 1131 of the statute as requiring the existence of a
present disability for VA compensation purposes cannot be
considered arbitrary and therefore the decision based on that
interpretation must be affirmed).

Duodenal Ulcer Disease

The veteran has also failed to present medical evidence of
current duodenal ulcer disease.  Although it appears that he
was diagnosed and treated for an ulcer in 1991, this has
since apparently resolved as noted in his April 1997 VA
examination in which the examiner wrote �[p]atient
apparently was successfully treated for his ulcer and
gastritis in 1991.  He has no symptoms at present suggestive
of these problems.�

An April 1994 letter from a private gastroenterologist, Dr.
Kumar, notes that he had known the veteran since March 1991.
He described the veteran's condition:

At that time, the patient had complaints
of cramping abdominal pain with spasmodic
attacks of pain . . . He underwent . . .
endoscopy that demonstrated moderate
gastritis and a shallow pyloric channel
measuring 1 cm that was not bleeding at
the time . . . Biopsies taken from that
area showed mild, chronic duodenitis with
no evidence of Helicobacter organisms or
inflammation.

Dr. Kumar concluded that he believed the veteran's problems
were stress-related with recurrent ulcer formation, adding
that �we have concrete evidence on endoscopy that he does
indeed have ongoing problems as far as his gastrointestinal
tract is concerned.�  He also concluded that the veteran�s
stress-induced ulcers were the result of his time on active
duty.

Dr. Kumar�s opinion does not contradict the Board�s
conclusion that the veteran has no current ulcer disease.
The Board does not dispute Dr. Kumar�s conclusion that the
veteran has �ongoing problems� with his gastrointestinal
tract; however, the conclusive medical evidence suggests that
this is more precisely described as irritable bowel syndrome,
for which he is already service connected.  To further
support this conclusion, the Board merely notes two letters
written by Dr. Awasthi specifically listing the veteran's
disorders.  In March 1992, one year after the veteran was
initially referred to Dr. Kumar, Dr. Awasthi wrote, [t]his is
to verify that [the veteran] has Anxiety Neurosis, Carpal
Tunnel Syndrome, Peripheral Neuropathy, Degenerative Disc
Disease of [the] Spine, Hypertension and Carotid Disease.�
In March 1994, one month before Dr. Kumar wrote the above
letter, Dr. Awasthi wrote, �[the veteran] is a long-time
patient currently under my care.  He is being treated for
several diagnoses including Coronary Artery disease,
Paroxamal Atrial Fibrillation, Hypertension, Irritable Bowel
Syndrome, Synovitis, and Osteoarthritis.�  In light of the
above listings of diagnoses, which do not include any ulcer
disease, it is clear that the letter from Dr. Kumar therefore
is less a diagnosis of current ulcer disease, and more a
historical statement of past findings and treatment.

Other statements in the medical records purporting to
represent a diagnosis of current ulcer disease, most notably
in a December 1994 VA mental disorders examination, i.e.,
�[h]e also has peptic ulcer disease . . .,� are clearly
based not on an examination of the veteran�s physical
condition, but his history as related to the examiner.
However, a bare transcription of a lay history is not
transformed into competent medical evidence merely because
the transcriber happens to be a medical professional.
LeShore v. Brown, 8 Vet. App. 406 (1995).  Thus, any
conclusion based on the veteran's history, unenhanced by
clinical evaluation and findings to support the diagnosis is
invalid.

The only remaining evidence that the veteran has any current
ulcer disease are his own statements and testimony.  The
veteran�s sworn testimony and other statements are not
competent evidence to establish a current disability.
Medical diagnosis and causation involve questions that are
beyond the range of common experience and common knowledge
and require the special knowledge and experience of a trained
medical professional.  Because he is not shown to be a
physician, the veteran is not competent to make a
determination that his stomach complaints are in fact
duodenal ulcer disease.  See Espiritu, 2 Vet. App. at 495;
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

The veteran does not meet the first element required for the
claim for duodenal ulcer disease to be well grounded.  See
Caluza, 7 Vet. App. at 506.  As noted above, medical proof of
a current disability is an absolute prerequisite to
presenting a well-grounded claim for service connection on
either a direct or secondary basis.  See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992) (absent �proof of a
present disability there can be no claim�).

Heart Disease

The veteran is also essentially claiming that he has a heart
disorder with hypertension caused by his service-connected
malaria.  In his August 1993 substantive appeal he argues
that �it is medically known that malaria causes a condition
known as anuria which produces the inability to urinate which
is the first sign of kidney problems.  This also leads to
hypertension which [I] have also been [diagnosed] as
having.�

Letters from his private physicians show treatment for heart
disease and hypertension but do not relate these disorders to
his active service or any service-connected disability.  Nor
is there evidence of any heart disease in the available
medical records during service or in the first post service
year.  A physical examination in service in February 1945
noted a normal vascular system and only a slight systolic
heart murmer with no irregularities or enlargement of the
heart.  An August 1946 examination noted a normal
cardiovascular system.  A VA examination in November 1965
noted elevated systolic blood pressure with no abnormalities
of the cardiovascular system.  This is two decades following
his release from active service.

No medical evidence has been submitted which in any way links
his heart disease or hypertension to either his active
service or a service-connected disability.  The only evidence
submitted of such a link is his own statements and testimony;
however, as noted above the veteran is not competent to
provide a medical opinion of causation.  See Espiritu, 2 Vet.
App. at 495; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

With regard to his claim for secondary service connection,
the veteran fails to show the required nexus between his
current heart disease and any service-connected disability.
Locher v. Brown, 9 Vet. App. 535 (1997), Reiber v. Brown, 7
Vet. App. 513, 516 (1995). See Caluza, 2 Vet. App. 506.  Nor
is there medical evidence establishing a link to the
veteran's active military service.  See Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992); Franko v. Brown, 4
Vet. App. 502, 505 (1993).  See also Dean v. Brown, 8 Vet.
App. 449, 455 (1995); Slater v. Brown, 9 Vet. App. 240
(1997).

D.  Conclusion

The Board has thoroughly reviewed the claims file, but finds
no evidence of plausible claims for kidney stones, duodenal
ulcer disease, or arteriosclerotic heart disease with
hypertension and atrial fibrillation.  Since the veteran has
not met his burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded, it must be denied.  See Boeck v.
Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well-
grounded, the Board does not have jurisdiction to adjudicate
it).

Where a claim is not well grounded, VA does not have a
statutory duty to assist a claimant in developing facts
pertinent to the claim, but VA may be obligated under 38
U.S.C.A. � 5103(a) to advise a claimant of evidence needed to
complete his application.  This obligation depends on the
particular facts of the case and the extent to which the
Secretary has advised the claimant of the evidence necessary
to be submitted with a VA benefits claim.  Robinette v.
Brown, 8 Vet. App. 69, 78 (1995).  Here, unlike the situation
in Robinette, the veteran has not put the VA on notice of the
existence of any specific, particular piece of evidence that,
if submitted, could make his claims well grounded.  See also
Epps v. Gober, No. 97-7014 (Fed Cir. October 7, 1997); Epps
v. Brown, 9 Vet. App. 341 (1997).  Accordingly, the Board
concludes that VA did not fail to meet its obligations under
38 U.S.C.A. � 5103(a) (West 1991).

Regulations affording the appellant the benefit of the doubt,
as provided by 38 U.S.C.A. � 5107(b) and 38 C.F.R. � 3.102,
do not apply where the appellant has not submitted a well-
grounded claim.  Holmes v. Brown, 10 Vet. App. 38 (1997).

ORDER

An increased rating for irritable bowel syndrome is denied.

Because they are not well grounded, the veteran's claims for
service connection for kidney stones, duodenal ulcer disease
and arteriosclerotic heart disease with hypertension and
atrial fibrillation are denied.

	HOLLY E. MOEHLMANN
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

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