judge_norm: G H SHUFELT

condition: hip

disposition: granted

condition: psychiatric

text:
Citation Nr: 0323000
Decision Date: 09/08/03    Archive Date: 09/11/03

DOCKET NO.  01-06 719	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for a bilateral hip
disability.

2.  Whether new and material evidence has been submitted to
reopen a claim for service connection for depression.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Kelli A. Kordich, Counsel

INTRODUCTION

The veteran served on active duty from June 1971 to August
1971, from January 1975 to March 1975, and from April 1981 to
March 1984.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions dated December 2000
and August 2001 which denied the benefits sought on appeal.

The issue of entitlement to service connection for depression
will be addressed in the Remand section below.

FINDINGS OF FACT

1.  The veteran does not have a bilateral hip disability that
is the result of a diseae or injury he had in service, or
that is due to or the result of his service-connected
foot/and or knee disability.

2.  A December 1985 Board decision denied the veteran's claim
of entitlement to service connection for an anxiety disorder.

3.  The veteran sought to reopen his claim for depression,
formally claimed as an anxiety disorder with the final denial
occurring in December 2000.

4.  Evidence received since the December 1985 Board decision
is so significant that it must be considered to fairly decide
the veteran's claim of entitlement to service connection for
depression.

CONCLUSIONS OF LAW

1.  The grant of service connection is not warranted for a
bilateral hip disability.
38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R �� 3.303,
3.310 (2002).

2.  The Board's December 1985 decision, denying entitlement
to service connection for an anxiety disorder is final.
38 U.S.C.A. � 7104 (West 2002); 38 C.F.R. � 20.1100 (2002).

3.  Certain items of evidence received since the December
1985 Board decision are new and material, and the veteran's
claim of entitlement to service connection for depression,
formally claimed as an anxiety disorder, has been reopened.
38 U.S.C.A. � 5108 (2002); 38 C.F.R. � 3.156 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Introduction

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000).  This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A,
5106, 5107, 5126, (West Supp. 2002).  The final rule
implementing the VCAA was published on August 29, 2001.  66
Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as
amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a)
(2002)).

The development that has been undertaken in this case is in
accordance with the requirements of VCAA.  The record
includes service medical records; a statement from W.M.,
M.D., dated April 1985; a transcript of an RO hearing dated
May 1985; VA progress notes dated December 1987 and April
1993; a report from Ingwell Psychological Services dated May
1990; VA outpatient treatment records dated April 1996 to
April 1999; a letter from R.O.L., DPM of Lundeen Regional
Foot & Ankle Center dated July 1999; VA examination reports
dated June 1984, October 1999, and July 2000; a letter from a
VA registered nurse dated March 2000; a copy of a
prescription form dated October 2001; and physical therapy
records from St. Vincent Hospitals and Health services dated
November to December 2001

Additionally, the record shows that the veteran has been
notified of the applicable laws and regulations, which set
forth the criteria for entitlement to the benefit at issue.
The discussions in the rating decision, statement of the
case, and supplemental statement of the case have informed
the veteran of the information and evidence necessary to
warrant entitlement to the benefit sought.

The veteran was sent a VCAA letter in February 2001.  In
accordance with the requirements of the VCAA, the letters
informed the appellant what evidence and information VA would
be obtaining.  The letters explained that VA would make
reasonable efforts to help him get evidence such as medical
records, employment records, etc., but that he was
responsible for providing sufficient information to VA to
identify the custodian of any records.

Thus, through items of correspondence the RO has informed the
appellant of the information and evidence necessary to
substantiate his claim.  Therefore, further development is
not needed to meet the requirements of the VCAA.  See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Service connection bilateral hip disability

Background

The veteran contends that his bilateral hip disability is
secondary to the service connected disability of bilateral
knee and/or foot disability.

Service medical records are negative for complaints,
treatment, or diagnoses of a bilateral hip disability.

VA outpatient treatment records dated April 1996 to April
1999 indicate that the veteran had no bilateral hip
complaints.  In August 1998 the veteran had an examination,
which revealed no tenderness in the hips. Extension was to 30
degrees and external rotation was to 45 degrees.  Flexion was
to 120 degrees and internal rotation was to 35 degrees.

A letter from R.O.L., DPM of Lundeen Regional Foot & Ankle
Center dated July 1999 indicates that the veteran was treated
in June 1999 with a complaint of painful flat feet for many
years.  He also had a secondary complaint of painful bunions
which he had also noted to be painful for many years and
gradually increased in size.  The veteran inquired as to
whether the pain and deformity he had in his knees and hips,
was secondary to his flat foot condition.  The examiner noted
that the flat foot condition, as was well demonstrated in the
literature, could cause proximal pain and minimal deformity
in the knee and hip regions in closed and open kinetic chain
motion.  He further indicated that it was almost impossible
to determine whether his knee and hip deformities were due to
an untreated or poorly treated flat foot deformity somewhere
in the remote past.  The examiner noted that evaluation of
knee and hip pathology would best be performed by an
orthopaedic surgeon.

At his October 1999 VA foot and knee examination, the veteran
had no hip complaints and there was no findings or diagnosis
of a bilateral hip disability.

A copy of a prescription form dated October 2001 showed that
the veteran was seen for musculoskeletal pain at the
sacroiliac joint on the right flank, but x-rays showed no
abnormalities.

Physical therapy records from St. Vincent Hospitals and
Health services dated November to December 2001 show that the
veteran complained of bilateral hip pain, which started in
1999 after his right knee surgery.  The assessment was
decreased range of motion, decreased flexibility, and pain.
Clinical impression was hip pain with lumbar involvement.  In
December 2001, a physician noted that treatment was to be
discontinued.

Criteria

Service connection will be granted if it is shown that the
veteran suffers from disability resulting from an injury
suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, in active military service.  38
U.S.C.A. � 1110, 38 C.F.R. � 3.303.  That an injury occurred
in service alone is not enough; there must be chronic
disability resulting from that injury.  If there is no
showing of a resulting chronic condition during service, then
a showing of continuity of symptomatology after service is
required to support a finding of chronicity.  38 C.F.R. �
3.303(b). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service.  38 C.F.R. � 3.303(d).

Applicable regulations also provide that a disability, which
is proximately due to or the result of a service-connected
disease or injury shall be service connected.  38 C.F.R. �
3.310(a).  In addition, secondary service connection may also
be granted for the degree of aggravation to a nonservice-
connected disorder, which is proximately due to, or the
result of a service-connected disorder.  Allen v. Brown, 7
Vet. App. 439, 448 (1995).  Such claims may be described as
secondary service connection by way of aggravation.

Analysis

The preponderance of the evidence is against entitlement to
service connection for a bilateral hip disability on a direct
or secondary basis.  Service medical records do not show a
bilateral hip disability in service and post service medical
records do not link a bilateral hip disability to the
veteran's service connected foot or knee disabilities.
According to the report of an August 1998 VA examination, the
physician who examined the veteran noted no hip disability.
The veteran's podiatrist indicated in a July 1999 letter that
the veteran inquired as to whether the pain and deformity he
had in his knees and hips, was secondary to his flat foot
condition.  The examiner noted that the flat foot condition,
as was well demonstrated in the literature, could cause
proximal pain and minimal deformity in the knee and hip
regions in closed and open kinetic chain motion.  He further
indicated that it was almost impossible to determine whether
his knee and hip deformities were due to an untreated or
poorly treated flat foot deformity somewhere in the remote
past.  The examiner noted that evaluation of knee and hip
pathology would best be performed by an orthopaedic surgeon.
The podiatrist did not diagnose a bilateral hip disability,
and the veteran did not complain of a hip condition at his
October 1999 VA examination.  Physical therapy records from
St. Vincent Hospitals and Health Services indicate that the
veteran complained of bilateral hip pain and weakness.  The
clinical impression was hip pain with lumbar involvement.

There is no medical evidence of record to indicate that the
veteran's hip pain was present in service, nor is there any
evidence that a bilateral hip disability was present to a
compensable degree within one year of his separation from
service.  See 38 C.F.R. � 3.309(a).  In addition, there is no
medical evidence that the veteran's hip pain is secondary to
his service connected foot or knee disabilities.  It is
further noted that pain alone, without a diagnosed or
identifiable underlying malady or condition, does not in and
of itself constitute a disability for which service
connection may be granted.  Sanchez-Benitez v. West, 13 Vet.
App. 282 (1999); dismissed in part and vacated in part on
other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356
(Fed. Cir. 2001).

Overall, the preponderance of the evidence is against the
veteran's assertion that his current bilateral hip pain is a
result from any in-service disease or injury, or is
proximately due to or result from a service connected
disability.  38 U.S.C.A. � 1110; 38 C.F.R. �� 3.303, 3.304,
3.310.  Therefore, his claim for service connection for a
bilateral hip disability must be denied.

III.  New and Material

The veteran filed a claim for service connection for an
anxiety disorder in April 1984.  The claim was denied, and
the veteran appealed to the Board of Veterans' Appeals.  In
December 1985, the Board denied the appeal.  The veteran is
now asking VA to reopen the claim.

Service connection for depression may now be considered on
the merits only if new and material evidence has been
received since the time of the prior adjudication.
38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156 (2002);
Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v.
Brown, 9 Vet. App. (1996).

It is noted that unless the Chairman orders reconsideration,
or one of the other exceptions to finality, all Board
decisions are final on the date stamped on the face of the
decision.  38 U.S.C.A. � 7104; 38 C.F.R. � 20.1100.  A claim
denied by a final decision may not be reopened and
readjudicated by the VA, except on the basis of new and
material evidence.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156(a).

Pursuant to 38 U.S.C.A. � 5108, the Secretary must reopen a
finally disallowed claim when new and material evidence is
presented or secured with respect to that claim.  Knightly v.
Brown, 6 Vet. App. 200 (1994).  Only evidence presented since
the last final denial on any basis (either upon the merits of
the case, or upon a previous adjudication that no new and
material evidence had been presented), will be evaluated in
the context of the entire record.  Evans v. Brown, 9 Vet.
App. 273 (1996).

Consideration must be given to the question of whether new
and material evidence has been received because it goes to
the Board's jurisdiction to reach the underlying claim and
adjudicate the claim de novo.  See Jackson v. Principi, 265
F.3d 1366, 1369 (Fed. Cir. 2001).  If it is found that no
such evidence has been offered, that is where the analysis
must end, and what the RO may have determined in that regard
is irrelevant.  Id.  Further analysis, beyond consideration
of whether the evidence received is new and material, is
neither required nor permitted.  Id. at 1384; see also Butler
v. Brown, 9 Vet. App. 167, 171 (1996).

In September 1998, the United States Court of Appeals for the
Federal Circuit issued an opinion which overturned the test
for materiality established by the United States Court of
Appeals for Veterans Claims (Court) in Colvin v. Derwinski, 1
Vet. App. 171, 174 (1991) (the so-called "change in
outcome" test).  See Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998).  The Federal Circuit in Hodge mandated that
materiality be determined solely in accordance with the
definition provided in 38 C.F.R. � 3.156(a).  (It is noted
that 38 C.F.R. � 3.156(a) was amended in August 2001.
However, that amendment is applicable only to claims filed on
or after August 29, 2001.  See 66 Fed. Reg. 45,620 (Aug. 29,
2001)).

Under 38 C.F.R. � 3.156(a) (2002), evidence is considered
"new" if it was not of record at the time of the last final
disallowance of the claim and if it is not merely cumulative
or redundant of other evidence that was then of record.  See
also Struck v. Brown, 9 Vet. App. 145, 151 (1996); Blackburn
v. Brown, 8 Vet. App. 97, 102 (1995); Cox v. Brown, 5 Vet.
App. 95, 98 (1993).  "Material" evidence is evidence which
bears directly and substantially upon the specific matter
under consideration, and which by itself or in connection
with evidence previously assembled is so significant that it
must be considered in order to fairly decide the merits of
the claim.  See 38 C.F.R. � 3.156(a); Hodge, supra; cf. Duty
to Assist, 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001)
(codified as amended at 38 C.F.R. � 3.156(a)) (new and
material evidence is defined differently for claims filed on
or after August 29, 2001).  In determining whether evidence
is new and material, the "credibility of the evidence is to
be presumed."  Justus v. Principi, 3 Vet. App. 510, 513
(1992).

The evidence of record at the time of the September 1951
Board decision consisted of the following: service medical
records indicating that in August 1981 Dalmane was prescribed
for insomnia.  The veteran had had a sleep disturbance,
anxiety and prickly skin sensations.  Psychological testing
had been indicative of chronic somatic complaints.  In
September 1981 it was noted at a mental hygiene clinic that
the veteran's sleep disturbance had slightly improved.  The
veteran indicated that he was mildly nervous and had a skin
reaction to stress during the day in the form of prickly skin
sensations.  It was reported that the veteran had previously
been treated by personal physicians for nervousness with
Phenobarbital and other medications.  Later in September
1981, Dalmane again was prescribed to the veteran for a sleep
disturbance.  In April 1983, the veteran complained that he
needed medications for a sleep problem, nervousness, nail
biting, and a feeling that things were crawling on him.  The
veteran was found unfit for further military service in
November 1983 by a Physical Evaluation Board because of
bilateral chondromalacia of the patella.

In a June 1984 VA examination, the veteran gave a history of
insomnia, nervousness, and occasional auditory illusions
during service.  The examination noted that the veteran was
very anxious and constantly picked at his face.  The
impression was generalized anxiety disorder.

A statement from W.M., M.D., dated April 1985 indicated that
he had treated the veteran for tension headaches with
Phenobarbital and belladonna.  He added in June 1985 that he
provided the veteran treatment for nervous problems since
1971 and various medications had been prescribed.  The
veteran had also had expressed complaints of headaches and
dizzy spells.  The physician felt that the veteran had
nervous problems such as tension headaches, better at times
and worse at others.

At his RO hearing in May 1985, the veteran testified that he
was receiving treatment for headaches and a nervous condition
from a private physician.  He could recall no personal
problems or other situations resulting in excessive worry
during his period of active duty.  The veteran indicated that
during his first period of active duty he had no problems
with his nerves, only mild headaches.

Evidence received since the December 1985 Board decision
consists of the following: a December 1987 VA progress note
which showed that the veteran reported a history of insomnia,
nightmares, intrusive thoughts of Korea without specific
traumatic event, other than his fear of guard duty.  The
veteran reported experiencing nervousness, itching, biting
nails, twitching, and the sensation of things crawling on his
skin.  The veteran was diagnosed with generalized anxiety
disorder.  A progress note dated in April 1993 indicates that
the veteran complained of inability to sleep, anxiety,
feeling like his skin was crawling, and some crying spells.
The veteran denied suicidal or homicidal ideation.  It was
noted that the veteran had been treated for anxiety and
tension headaches 6 or 7 months prior.  The impression was
rule out depression.

A report by Ingwell Psychological Services dated May 1990
indicated that the Minnesota Multiphasic Personality
Inventory was conducted.  The summary indicated that the
veteran had symptoms of depression, which were mainly
manifested as physical complaints, which might take the form
of a variety of physical and somatic symptoms, many of which
might not be based in actual organic findings.  The diagnoses
were major depression and somatiform disorder.

A letter dated March 2000 from the VA registered nurse who
saw the veteran for medication management and psychotherapy
to manage his depressive disorder indicated that the
veteran's actual diagnosis was adjustment reaction with
depressed mood related to his medical condition.  She
indicated that the medical condition was his knee pain and
she had followed him since June 1999.  It was noted that the
veteran was willing to take medication and the medication did
seem to reduce his anxiety and depression symptoms.  However,
she indicated, they were not fully eliminated and tended to
worsen with additional stress.  She stated that she would
support that the veteran's compensation be determined based
on all his medical and mental health problems and believed
that he had more symptoms and disability than the current
determination recognized.

A July 2000 VA examination diagnosed anxiety disorder not
otherwise specified.  The examiner noted that the veteran's
nervous condition did not appear to be related to his
osteoarthritis.  The examiner noted that the veteran's
nervous condition began in the military which he admitted
began prior to his knee injury and it was unlikely to have
had any exacerbation in symptoms due to his knee condition.
The veteran did appear to have a psychogenic cause of his
tactile experiences; however, it was noted that he had never
been fully examined by a dermatologist to determine if there
was a medical cause for his skin condition.

The December 1985 Board decision, which denied service
connection for depression did so on the basis that the
veteran's nervous condition predated service and there was no
evidence of acute exacerbations of the preexisting condition.
The March 2000 letter from the VA registered nurse indicated
that the veteran's depressed mood was related to his medical
condition.  This letter indicates that there might, therefore
be a causal relationship between the two.  Such evidence is
clearly new and of such significance that it must be
considered to fairly adjudicate the veteran's claim.

Accordingly, in applying the fair process review contemplated
by the terms of 38 C.F.R. � 3.156(c), it is concluded that
new and material evidence has been submitted to reopen the
veteran's claim of service connection for depression.

ORDER

Entitlement to service connection for a bilateral hip
disability is denied.

New and material evidence has been received to reopen the
veteran's claim of entitlement to service connection for
depression.  To this extent only, the appeal is granted.

REMAND

Service medical records show that the veteran was treated for
anxiety while in service.  Although the July 2000 VA examiner
indicated that the veteran's nervous condition did not appear
to be related to his osteoarthritis and there was no
exacerbation in symptoms due to his knee condition the
examiner did not indicate whether the veteran's preexisting
anxiety in service increased in severity beyond the natural
progress of the disease.  In accordance with the provisions
of 38 U.S.C.A. � 5103A(d) (West 2002), this case must be
remanded.

On May 1, 2003, the United States Court of Appeals for the
Federal Circuit, in Disabled American Veterans v. Secretary
of Veterans Affairs, No. 02-7304 (Fed. Cir. May 1, 2003)
(DAV), held 38 C.F.R. � 19.9(a)(2) invalid.

To ensure full compliance with due process requirements, the
case is REMANDED to the RO for the following development:

1.  The veteran should be scheduled for a
VA psychiatric examination to ascertain
the nature and etiology of the veteran's
depression.  It is imperative that the
claims file be made available to the
examiner for review in connection with
the examination, and all indicated
special studies and tests should be
accomplished.  The report of the
examination must include responses to
each of the following items:

          A.  The examiner should state
the diagnoses of all psychiatric
disabilities.

          B.  For each diagnosis, state a
medical opinion as to the time of onset
of the first clinical manifestations of
the disorder.

	C.  If for any of the diagnoses, the
time of onset of the disorder is before
the veteran's active service, state a
medical opinion as to whether the
disorder increased in severity during his
military service, and, if so, whether
such increase in severity was beyond the
natural progress of the disease.

2.  After undertaking any other
development deemed appropriate, the RO
should readjudicate the issue on appeal.
If the benefit is not granted, the
veteran and his representative should be
furnished with a supplemental statement
of the case and afforded an opportunity
to respond before the record is returned
to the Board for future review.

Thereafter, the case should be returned to the Board for
further appellate review, if in order.  By this remand, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is notified by
the RO.  The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office.  Kutscherousky v. West, 12
Vet. App. 369 (1999).

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

______________________________________________
	G. H. SHUFELT
	Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

?	These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
In the section entitled "Representation before VA," filing
a "Notice of Disagreement with respect to the claim on or
after November 18, 1988" is no longer a condition for an
attorney-at-law or a VA accredited agent to charge you a fee
for representing you.


series: legacy

judge_norm: V L JORDAN

disposition: denied

condition: back

text:
Citation Nr: 0325000
Decision Date: 09/25/03    Archive Date: 10/02/03

DOCKET NO.  99-15 927A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to service connection for degenerative disc
disease, cervical spine.

2.  Entitlement to service connection for low back disc
protrusion, herniation.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Francesca Craft, Associate Counsel

INTRODUCTION

The veteran served on active duty from September 1966 to
September 1969, February 1970 to January 1971, and October
1973 to October 1976.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions dated in August 1998
and July 2002 from the Department of Veterans Affairs (VA)
regional office (RO) in Waco, Texas.  The Board initially
reviewed the issue of entitlement to service connection for
degenerative disc disease, cervical spine in April 2001.  At
that time, the Board remanded the issue for further
evidentiary development.  Review of the record indicates that
the requested development has been completed and the veteran
has perfected an appeal of the issue of entitlement to
service connection for low back disc protrusion, herniation.

FINDINGS OF FACT

1.  The appellant has been adequately notified of all
pertinent laws and regulations and of the evidence necessary
to establish her claim; all reasonable development necessary
for the disposition of the instant case has been completed.

2.  Degenerative disc disease, cervical spine, was not
present during active service and is not otherwise related to
such service.

3.  A low back disc protrusion, herniation, was not present
during active service and is not otherwise related to such
service.

CONCLUSIONS OF LAW

1.  Degenerative disc disease, cervical spine, was not
incurred in or aggravated by active service.  38 U.S.C.A.
�� 1110, 1131, 5107 (West 2002); 38 C.F.R. � 3.303 (2002).

2.  A low back disc protrusion, herniation was not incurred
in or aggravated by active service.  38 U.S.C.A. �� 1110,
1131, 5107 (West 2002); 38 C.F.R. � 3.303 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, the Board notes that the President signed into law
the Veterans Claims Assistance Act of 2000 (VCAA) on November
9, 2000.  See Pub. L. No. 106-475, 114 Stat. 2096 (2000),
codified at 38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West
2002).  The new legislation provides for, among other things,
notice and assistance to claimants under certain
circumstances.  VA has issued final rules to implement the
provisions of the VCAA.  See 66 Fed. Reg. 45,620 (August 29,
2001), codified as amended at 38 C.F.R. �� 3.102, 3.156(a),
3.159, 3.326(a).  These regulations state that the provisions
merely implement the VCAA and do not provide any additional
rights.  66 Fed. Reg. at 45,629.  Accordingly, in general
where the record demonstrates that the statutory mandates
have been satisfied, the regulatory provisions likewise are
satisfied.  Where laws or regulations change after a claim
has been filed or reopened and before the administrative or
judicial process has been concluded, the version most
favorable to the appellant will apply unless either Congress
provided otherwise or Congress has permitted the Secretary of
Veterans Affairs to do otherwise and the Secretary has done
so.  See Karnas v. Derwinski,
1 Vet. App. 308 (1991)

Review of the claims folder reveals compliance with the
statutory and regulatory provisions sufficient to proceed on
the claim currently before the Board.  That is, by way of the
April 1999 Statement of the Case (SOC) March 2001
Supplemental SOC, the RO provided the veteran with the
applicable law and regulations and gave notice as to the
evidence generally needed to substantiate his claim.  The RO
sent a letter to the veteran dated in January 2001 that
advised him of what the responsibilities of the VA and the
veteran are in developing the record.  See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).  The veteran has not
identified any additional available evidence that has not
been associated with the record.

Under the basic law, service connection may be established
for a disability resulting from disease or injury incurred or
aggravated by active service.  38 U.S.C.A.
�� 1110, 1131  (West 2002).  In order to show a chronic
disease in service there must be a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time.
38 C.F.R. � 3.303(b) (2002).  If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim.  Id.  Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service.  38 C.F.R. � 3.303(d).

For the purposes of 38 U.S.C.A. � 1110, and subject to the
provisions of section 38 U.S.C.A. � 1113, in the case of any
veteran who served for ninety days or more during a period of
war or peacetime service after December 1946, and a chronic
disease, including osteoarthritis (degenerative joint
disease), becomes manifest to a degree of ten percent or more
within one year from the date of separation from such
service, such disease shall be presumed to have been incurred
in or aggravated by such service notwithstanding there is no
record of evidence of such disease during the period of
service.  38 U.S.C.A. �� 1112, 1131, 1137 (West 2002);
38 C.F.R. �� 3.306, 3.309 (2002).

When all the evidence is assembled, the VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case, the claim is denied.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service medical records include a report of an enlistment
physical examination dated in September 1966.  The report
indicates that the veteran's spine was found to be normal.
The Report of Medical History reflects that the veteran
denied having any history of recurrent back pain.  The
veteran underwent a physical examination in January 1967,
which showed a normal spine.  He denied any bone, joint, or
other deformity, lameness, arthritis or rheumatism, and
swollen or painful joints.  Treatment records show the
veteran presented in April 1968, complaining that he injured
his back while pouring concrete.  The diagnostic impression
was muscle spasm.  He was treated with Robaxin and
Wintergreen, and returned to duty with instructions to return
if he experienced no relief.  He underwent a separation
physical examination in May 1969, which showed a normal
spine.  The medical history showed no recurrent back pain.
The veteran underwent an enlistment examination in February
1970.  He denied back trouble of any kind.  Physical
examination indicated a normal spine.  Report of a periodical
examination in April 1975 shows a normal clinical evaluation
of the spine.  The veteran underwent a physical examination
in July 1976 for expiration of his term of service.  The
veteran completed a Report of Medical History, denying that
he had recurrent back pain currently or in the past.  The
clinical evaluation of the veteran's spine was normal.

The veteran filed a claim with the VA for disability
compensation in October 1976.  He did not claim any disease
or injury to the cervical spine or low back at that time.
Post-service medical records show the veteran underwent a VA
compensation and pension (C&P) physical examination in May
1978.  The veteran made no mention of his neck or lower back
when reporting his subjective complaints.  The findings and
diagnosis were negative for any neck or back disorder.

Inpatient records from E.T. Medical Center show that the
veteran was admitted in January 1992 for neck and left
shoulder pain.  A cervical myelogram was done, followed by a
CT scan of the cervical spine.  The myelogram was interpreted
to show degenerative disc disease and posterior disc bulges
at multiple levels with probable stenosis at C5-6 and C6-7
and lateralizing signs most marked at C6-7.   The veteran was
admitted in October 1992 for neck pain after a tractor
trailer accident.  The veteran underwent a cervical
discogram, which was interpreted to show a central posterior
disc herniation at C3-4, a right paracentral disc herniation
at C4-5, and a left paracentral disc herniation at C5-6.  The
C6-7 disc could not be seen due to the veteran's muscular
shoulders.

The veteran filed a claim for service connection for a
cervical spine condition in March 1998.  He made no mention
of a low back condition.

VA outpatient records show the veteran sought treatment for
neck and left shoulder pains in March 1998.  He reported that
he had neck pains off and on for years.  He denied any neck
injury.  The veteran followed up in April 1998 with
complaints concerning his muscle relaxer prescription.  A
nerve conduction study in July 1998 showed no evidence of
left arm radiculopathy or peripheral neuropathy; the study
did show bilateral carpal tunnel syndrome, mild.  The veteran
had continued complaints of neck pain in July, August, and
September 1999.  X-rays of the cervical spine were
interpreted to show severe degenerative joint disease in
November 1999.  Physical examination was positive for left
lateral epicondylitis.  A February 2000 MRI (magnetic
resonance imaging) of the cervical spine was interpreted to
show multiple levels of spinal stenosis due to spurs and disc
protrusions with signs of myelopathy of the cord at the C3-4
level.  The veteran complained of back pain and lower left
extremity pain with coughing.  A MRI of the lumbar spine was
planned.

The veteran saw C.C.C., M.D., in May 2000.  He reported the a
pattern of symptoms in his neck, shoulders, arms to the
radial aspect of his hands.  The impression was cervical
radiculopathy-clinically 5-6, 7-8 roots and carpal tunnel
syndrome, previously diagnosed, bilateral.

A MRI of the lumbar spine done in June 2000 was interpreted
to show left paracentral disc protrusion at L4-5 with mild
neuroforaminal narrowing and mild bilateral L5-S1
neuroforaminal narrowing due to facet hypertrophy.  VA
outpatient notes indicate that EMG (electromyography) testing
showed a carpal tunnel syndrome (mild) and a cervical spinal
stenosis (severe).  This may be a "double crush syndrome"
involving nerve damage in two areas (the neck and the wrist).

Treatment records from P.E.W., Jr., M.D., indicate that the
veteran underwent an anterior cervical discectomy with fusion
and instrumentation and corporectomy at C3-4 with a herniated
disc removed, C4-5, and C5-6 in July 2000.  On follow-up
approximately eight days later, the veteran reported good
relief of pain in his left arm.

VA outpatient records reflect an entry in August 2000 which
reflects that the veteran requested a medical statement
saying that it was medically possible that his neck problems
began in service.  By of history it was reported that the
veteran's symptoms began in 1985 with neck pain.  He denied
specific trauma.  The assessment was status post
decompression, fusion, and plating for cervical stenosis with
cervical myelopathy.  The physician indicated that it is
possible that the onset of cervical degeneration leading to
these conditions could have begun during the veteran's time
in service.  In an October 2000 addendum, the physician
reported that the veteran told him that his neck pain first
began in 1985 and that he was ultimately found to have
cervical stenosis secondary to degenerative changes in the
cervical spine.  The physiatrist opined that the degenerative
changes in the cervical spine in all probability took many
years to develop and evolve.  He concluded that it was not
possible to say with certainty when the problems began, but
it was medically probable that they began prior to 1976 while
the veteran was in service.

VA outpatient records show that in August 2000, the veteran
continued to complain of pain in his lower extremities with
coughing from the left buttock down the side of the left
lower extremity to the foot.

The veteran testified in a local hearing in August 2000.  His
testimony indicates as follows:

The veteran was on active duty from September 1966 to
September 1969 and from February 1970 to October 1976.
(Transcript (T.) at p. 2)  He had problems with his neck, not
his back.  He was unaware that he had hurt his neck.  He
thought he hurt his shoulder.  This was diagnosed as
bursitis.  (T. at p. 3)  The veteran left service in 1976 and
was first treated for his neck in 1985.  He underwent surgery
on his neck.  (T. at p. 4)  The veteran had no intervening
injury before he went to see the doctor in 1985; it was the
same problem.  His neck was bad then.  He went back to the
doctor in 1992 and just recently had surgery one month ago.
Everyone was surprised that he was able to go so long before
having surgery.  (T. at p. 5)  He was given the same
diagnosis in 1992 as was given in 1985.  They did not
recommend surgery in 1992 because of the amount of movement
he still had in his neck.  When treated in 1985 he was given
anti-inflammatory medication.  (T. at p. 6)  The veteran was
"re-injured" in 1991 when he was involved in a tractor
trailer accident.  (T. at p. 7)  The injury to the left
shoulder occurred during his first enlistment and it had
resolved as far as he knew when he got out in 1976.

Records from P. Hospital show that the veteran underwent a
release of flexor retinaculum on the right in April 2001.
The postoperative diagnosis was carpal tunnel syndrome on the
right.  In June 2001, the veteran underwent a left carpal
tunnel release with incision of flexor reticulum.

The veteran underwent a VA compensation and pension (C&P)
physical examination in August 2001.  The examiner noted from
review of the records that the veteran did not complain of
neck pain until 1985 at which time cervical stenosis was
diagnosed.  The veteran was diagnosed with spinal stenosis
with multiple areas of disc disease and pain in his left arm
in 1992.  The veteran underwent a major cervical procedure in
July 2000.  Since the surgery, the veteran continued to have
a very stiff neck.  He reported that when he turned his head
in a certain way, he experienced episodes of numbness in his
hands.  He underwent surgery for bilateral carpal tunnel
syndrome that did not help much.  The veteran also reported
pain that radiates across the tops of his shoulders and if he
moves his head a certain way, he experiences pain radiating
into the left arm.

Following an examination of the veteran, the examiner made
the following diagnoses:  (1) status following anterior
discectomy and corpectomy with application of a large
triangular bone graft and metallic internal fixation with
apparent fusion, and (2) basically negative orthopedic
examination of the left shoulder; certain that x-rays would
find some degenerative joint disease, but today the shoulder
is not painful or negative and has almost normal range of
motion and somewhat limited internal and external rotation.
The veteran has severe degenerative joint disease and disc
disease with spinal stenosis treated by surgical procedure
that gave a fair result.  The examining physician opined that
there was no real connection between the current cervical
spine disease and any shoulder bursitis that the veteran
might have had in the past.  The examiner indicated he found
no evidence of cervical disease while the veteran was on
active duty and his symptoms began in 1985 according to the
veteran and the record.

C.C.C., M.D., the veteran's private physician, submitted a
letter in August 2001.  Dr. C. states that the veteran first
became his patient in 1999.  He had advanced severe cervical
disease with myelopathy and radiculopathy.  Dr. C. opined
that the extent of the disease is longstanding and more than
likely occurred during an injury he had in the 1960s while he
was in service.  The changes he has seen on cervical films in
1999 would correlate with a disease process of that length.
Dr. C concludes that the veteran underwent a multiple level
fusion in 2000 and remains totally disabled.

II.  Analysis

In order to prevail on the issue of service connection, there
must be medical evidence of a (1) current disability; (2)
medical, or in certain circumstances, lay evidence of service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the present disease or injury.  Hickson
v. West, 12 Vet. App. 247, 253 (1999).  The medical evidence
in the instant case demonstrates that the veteran has current
disabilities, including severe degenerative joint disease and
disc disease with stenosis, all of the cervical spine, and
left paracentral disc protrusion at L4-5 with mild
neuroforaminal narrowing and mild bilateral L5-S1
neuroforaminal narrowing due to facet hypertrophy.  Two
physicians provided opinions that the veteran's cervical
spine disability began around the time of service, but
neither could point to any particular injury, illness, or
event that led to the veteran's current disability.  The VA
examiner, who examined the entire claims file, could find
nothing in the record that indicated any connection between
the veteran's current degenerative disc disease, cervical
spine.

Review of the record by the Board reveals nothing in service
medical records that shows a chronic condition either of the
cervical spine or the lumbar spine.  The veteran contends he
was diagnosed with bursitis in service and this was really a
neck injury; and the neck injury is directly related to the
current degenerative disc disease, cervical spine.  The
diagnosis of a disability and determination of medical
etiology, however, require professional evidence. See
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  See also
Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson
is generally not capable of opining on matters requiring
medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d
1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).
The two physicians that opined that the current cervical
spine disability began in service do not support the
veteran's assertion, as they do not point to shoulder
bursitis or any particular precipitating event.  Moreover,
the VA examiner directly refutes the contention that any
shoulder bursitis in the past is connected to the veteran's
current cervical spine disability.  The Board also notes that
the veteran repeatedly denied any recurring problems with his
back while in service and for some years following release
from active duty, as shown by numerous examination reports in
service and a VA examination report in 1978.  The Board
further notes that the veteran made no mention of a neck or
back disability when he filed for disability compensation in
October 1976.  The first report of neck pain was in 1985 and
the veteran has testified that was the first treatment after
service.  The Board finds that the contemporaneously recorded
progress notes and reports are more reliable than the
veteran's contentions made 15 to 30 years after the purported
events.

Aside from the diagnosis of muscle spasm in April 1968, there
is no complaint or treatment of neck or lower back injuries
in service.  The veteran's testimony indicates that he was
diagnosed with shoulder bursitis in service.  His testimony
also indicates that his shoulder problem did not bother him
again until 1985.  Service medical records fail to show
complaint or diagnosis of a shoulder problem and there are no
medical records to substantiate that symptoms in the
veteran's neck actually began, as the veteran has alleged,
his treatment records from 1985 are unavailable.

The Board has a duty to analyze the credibility and probative
value of the evidence of record.  Madden v. Gober, 125 F.3d
1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App.
362, 367 (2001); Owens v. Brown, 7 Vet. App. 429, 433 (1995).
When adequately explained, the Board is free to favor one
medical opinion over another.  Evans v. West, 12 Vet. App.
22, 26 (1998).  The Board concludes that the opinion provided
by the VA examining physician is more reliable than the
opinions supporting service connection in this case.  In this
regard, the Board observes that the opinions supporting
service connection for degenerative disc disease, cervical
spine, appear to heavily rely on history provided by the
veteran, which is contradicted or unsupported by
contemporaneous records.  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).  Moreover, these opinions by examiners who first saw
the veteran many years after service fail to point to any
specific event, injury, or disease diagnosed in service.  The
Board finds these opinions to be speculative in nature.

Service medical records reveal only one complaint relating to
the veteran's back, which occurred in April 1968.  In October
2001, the veteran asserted service connection for lower back
conditions.  He did not provide any other information
concerning any treatment for the lumbar spine other than a
copy of the MRI report of the lumbar spine from June 2000.
The veteran does not allege any treatment for the lower back
symptoms and the first complaints of record did not occur
until February 2000, over 30 years after he was diagnosed
with a muscle spasm in service.  The record fails to show a
chronic lower back injury or disease in service and no
continuity has been shown after service.  Accordingly,
service connection for low back disc protrusion, herniation
is not warranted.

Finally, the Board notes that VA has not provided an
examination in support of the veteran's claim for service
connection for low back disc protrusion, herniation.  The
Board considered whether a VA examination would be
appropriate, but found that there is no indication that the
veteran's low back disc protrusion, herniation could be
associated with any established event, injury, or disease in
service or with another service-connected disability.  In
this regard, the Board notes the veteran had a muscle spasm
in April 1968, which was not diagnosed as either an injury or
disease.  There is no record of another complaint regarding
the low back until February 2000, creating a lapse of over 30
years between the muscle cramp and diagnosis of a low back
disc protrusion, herniation.

The positive evidence for the veteran's claims in this matter
is clearly outweighed by the negative evidence.  Accordingly,
reasonable doubt does not assist the veteran in his claims
for service connection for a low back disc protrusion,
herniation and service connection for degenerative disc
disease, cervical spine.

ORDER

Service connection for a low back disc protrusion,
herniation, is denied.

Service connection for degenerative disc disease, cervical
spine is denied.

____________________________________________
	V. L. Jordan
	Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

?	These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
?	In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


judge_norm: BARBARA B COPELAND

disposition: remanded

text:
Citation Nr: 0326000
Decision Date: 10/02/03    Archive Date: 10/15/03

DOCKET NO.  00-01 311	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for headaches.

2.  Entitlement to an increased rating for a fungus infection
of the feet, currently rated as 10 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran-Appellant

ATTORNEY FOR THE BOARD

J. D. Parker, Counsel

INTRODUCTION

The veteran (also referred to as "appellant" or
"claimant") served on active duty from December 1942 to
November 1945.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a  rating decision issued in September
1999 by the Department of Veterans Affairs (VA) Regional
Office (RO) in New York, New York, which denied an increased
(compensable) rating for the veteran's service-connected
fungal infection of the feet, and denied service connection
for headaches (claimed as due to in-service boxing).  The
veteran entered notice of disagreement with this decision in
September 1999; the RO issued a statement of the case in
December 1999; and the veteran entered a substantive appeal,
on a VA Form 9, which was received in December 1999.  In a
subsequent hearing officer decision during the appeal in July
2000, the disability rating for service-connected fungal
infection of the feet was increased to 10 percent.

The veteran also perfected an appeal from the September 1999
rating decision as to the issue of entitlement to a 10
percent rating based on multiple noncompensable service-
connected disabilities.  As the July 2000 hearing officer
decision during the appeal granted a 10 percent rating for
service-connected fungal infection of the feet, however, the
veteran no longer has multiple noncompensable disabilities,
but has a compensable disability.  For this reason, the issue
of entitlement to a 10 percent rating based on multiple
noncompensable service-connected disabilities is moot and is
no longer on appeal before the Board.

At the personal hearing at the RO in June 2000, the veteran
contended that he was entitled to compensation benefits for
headaches under the provisions of 38 U.S.C.A. � 1151, as a
result of VA hospitalization or medical or surgical treatment
(catheterization for a heart condition).  The
representative's February 2003 brief indicates in writing the
veteran's intent to file a claim for compensation for
headaches under the provisions of 38 U.S.C.A. � 1151.  "A
specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid to any individual
under the laws administered by VA."  38 C.F.R. � 3.351
(2002).  Accordingly, this issue, which is not in appellate
status before the Board, is referred to the RO for
appropriate consideration.

REMAND

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38
U.S.C.A. � 5102, 5103, 5103A, 5107 (West 2002)), now requires
VA to assist a claimant in developing all facts pertinent to
a claim for VA benefits, including a medical opinion and
notice to the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the VA Secretary, that is necessary to
substantiate the claim.  See Quartuccio v. Principi, 16 Vet.
App. 183 (2002).  VA has issued regulations to implement the
Veterans Claims Assistance Act of 2000.  38 C.F.R. �� 3.102,
3.156(a), 3.159, 3.326(a) (2002).  In this case, as the
veteran has written and testified that he participated in
numerous boxing matches during service, and asserts that he
currently has headaches that are related to in-service
boxing, additional medical examination and medical etiology
opinion would aid in substantiating the claim of entitlement
to service connection for headaches.

In addition, there has been a change in the law affecting the
adjudication of the claim of entitlement to an increased
rating for a fungus infection of the feet, which is currently
rated under 38 C.F.R. � 4.118, Diagnostic Code 7813.
Effective August 30, 2002, the rating criteria applicable to
evaluating skin conditions under 38 C.F.R. � 4.118 have been
amended.  See 67 Fed. Reg. 49,590-599 (July 31, 2002).  In
this case, the new regulatory criteria used for rating skin
disorders have not yet been applied to the veteran's claim
for increased rating for a fungus infection of the feet.
Since this change in law occurred while the appeal was
pending, the Board must apply the version of the law that is
more favorable to the claim.  See Karnas v. Derwinski, 1 Vet.
App. 308, 312-13 (1991).  The new regulatory criteria may be
applied only from its effective date of August 30, 2002
forward.  See Green v. Brown, 10 Vet. App. 111, 116-119
(1997) and 38 U.S.C.A. � 5110(g) (West 2002) (where
compensation is awarded pursuant to any Act or administrative
issue, the effective date of such award or increase shall be
fixed in accordance with the facts found, but shall not be
earlier than the effective date of the Act or administrative
issue).

Accordingly, these matters are REMANDED to the RO for the
following:

1.  The RO should ask the veteran to
identify any additional VA and non-VA
health care providers that have treated
him for headaches or fungus infection of
the feet since July 2000.  The RO should
obtain records from each health care
provider the veteran identifies.

2.  The RO should schedule the veteran
for an appropriate VA examination to
determine the nature and etiology of the
veteran's complaints of headache,
including the question of whether the
veteran's currently reported headache
symptomatology is etiologically related
to his reports of boxing during his
active duty service.  The RO should send
the claims folder to the examiner for
review.

The examiner is requested to review the
relevant documents in the claims file and
to indicate in writing that he or she has
done so.  The review should note the
veteran's testimony of participation in
boxing matches during service, service
medical record evidence of absence of
complaints of headaches in service, and
post-service medical evidence that is
negative for complaints or findings of
headaches until many years after service
separation.  Any evaluations, studies, or
tests deemed necessary should be
conducted.  All pertinent clinical
findings should be reported.

After examination of the veteran and
review of the relevant documents of
record, the examiner should render
current diagnoses for the complaints of
headaches and any clinical findings, and
should offer the following opinions:

A.  Does the veteran have a currently
diagnosed disability manifested by
headaches?
B.  If the examiner diagnoses a current disability
manifested by headaches, what is the most likely
etiology of such disability?
C.  Is it at least as likely as not that
any currently diagnosed disability
manifested by headaches is etiologically
related to the veteran's reports of
boxing in service?

All opinions should be supported by
evidence in the record or medical
principles, and the basis for all
opinions should be indicated by the
examiner in writing.

3.  The RO should review the claims file
and ensure that all notification and
development actions required by
38 U.S.C.A. �� 5102, 5103, and 5103A
(West 2002) are fully complied with and
satisfied.  See also 38 C.F.R.
� 3.159 (2002).  The RO should also
notify the veteran of what evidence is
required to substantiate his claims for
service connection for headaches (claimed
as due to boxing in service) and for an
increased rating for service-connected
fungus infection of the feet, what
evidence, if any, the veteran is to
submit, and what evidence VA will obtain.
See Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).  Any notice given, or
action taken thereafter by the RO, must
also comply with the holdings of Disabled
American Veterans, et. al. v. Secretary
of Veterans Affairs, 327 F.3d 1339 (Fed.
Cir. 2003) (veteran is to be afforded one
year from VCAA notice to submit
additional evidence).

4.  The RO should again review the
evidence and readjudicate on the merits
the issues of entitlement to service
connection for headaches and entitlement
to an increased rating (in excess of 10
percent) for service-connected fungus
infection of the feet.  The RO should
specifically rate the veteran's service-
connected fungus infection of the feet
under the revised criteria for rating
skin disorders for the period from August
30, 2002 to the present, in addition to
rating under the old rating criteria for
the entire period of claim.  The RO
should consider all evidence added to the
record since the last rating decision in
July 2000.  If any benefit sought on
appeal remains denied, the appellant and
representative should be furnished a
supplemental statement of the case and
should be given the opportunity to
respond thereto.  Thereafter, the case
should be returned to the Board.

The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

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 for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West 2002) (Historical and Statutory
Notes).  In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court.  See M21-1, Part IV, paras. 8.43 and 38.02.

_________________________________________________
	BARBARA B. COPELAND
	Veterans Law Judge, Board of Veterans' Appeals

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


judge_norm: S KELLER

text: Prior to May 1, 2003, the Board's regulations provided that if further evidence, clarification of the evidence, correction of a procedural defect, or any other action was essential for a proper appellate decision, a Board Member or panel of Members could direct Board personnel to undertake the action essential for a proper appellate decision. See 38 C.F.R. § 19.9(a)(2) (2002). [is remanded]

text:
Citation Nr: 0327000
Decision Date: 10/09/03    Archive Date: 10/20/03

DOCKET NO.  01-01 351	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California

THE ISSUE

Entitlement to service connection for colon cancer.

ATTORNEY FOR THE BOARD

C. Hancock, Counsel

REMAND

In November 2002, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case.  Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.

Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision.  See 38
C.F.R. � 19.9(a)(2) (2002).

However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. � 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV").  The Federal Circuit held that 38
C.F.R. � 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. � 20.1304, was inconsistent with 38
U.S.C. � 7104(a), because 38 C.F.R. � 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.

Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA).  VAOPGCPREC 1-03.  Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.

Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions.  In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. �� 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.

In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the
following:

1.  Return the file to the examiner who
conducted the September 14, 1999 VA
examination or an oncologist.

The examiner is requested to clarify the
opinion, whether it is at least as likely
as not that the colon cancer was related
to any inservice manifestations,
including the veteran's polyps and
polypectomy in September 1982.  Any
pinions expressed by the examiner must be
accomplished by a complete detailed
rationale.  If it is determined that
there is a relationship, that fact should
be clearly stated.

2.  After the development requested above
has been completed to the extent
possible, the RO should again review the
record.  If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.

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

The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office.  Kutscherousky v. West, 12 Vet. App. 369
(1999).

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

	S. KELLER
	Veterans Law Judge, Board of Veterans' Appeals

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