judge_norm: MICHAEL E KILCOYNE

text: Service connection for PTSD is granted.

text:
Citation Nr: 0611000
Decision Date: 04/18/06    Archive Date: 04/26/06

DOCKET NO.  00-10 735	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for post-traumatic
stress disorder (PTSD).

2.  Entitlement to an effective date prior to October 2,
2001, for the grant of nonservice-connected pension benefits.

REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate
for Veterans Affairs

WITNESSES AT HEARING ON APPEAL

Appellant and private psychiatrist

ATTORNEY FOR THE BOARD

M.C. Peltzer, Counsel

INTRODUCTION

The veteran served on active duty from January 1966 to
December 1967.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1999 rating decision and an
April 2002 determination issued by the Regional Office (RO)
of the Department of Veterans Affairs (VA) located in San
Juan, the Commonwealth of Puerto Rico.

FINDINGS OF FACT

1.  Competent, probative medical evidence contains a
diagnosis of PTSD linked to a confirmed in-service stressor.

2.  The veteran's claim for pension benefits was received on
June 26, 1997, at which time the record shows his back and
psychiatric disabilities were of such severity that he was
unemployable.

CONCLUSIONS OF LAW

1.  PTSD was incurred in service.  38 U.S.C.A. �� 1110, 5107
(West 2002); 38 C.F.R. �� 3.102, 3.303, 3.304(2005).

2.  The criteria for an effective date of June 26, 1997, for
entitlement to a nonservice-connected pension are met.  38
U.S.C.A. � 1521 (West 1991 & Supp. 1999); 38 U.S.C.A. � 5110
(West 2002); 38 C.F.R. � 3.400 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection Claim

The competent medical evidence shows that the veteran has a
diagnosed psychiatric disorder that is secondary to a
nonservice-connected back disability.  However, the veteran
contends that he also has PTSD.  Service connection for PTSD
requires: 1) medical evidence diagnosing PTSD; 2) credible
supporting evidence that the claimed in-service stressor
actually occurred; and 3) a link, established by medical
evidence, between current symptoms and an in-service
stressor.  38 C.F.R. � 3.304(f) (2005).  In correspondence in
support of claim and by testimony at the August 2000 hearing
the veteran indicated that in 1967 his friend received a head
wound during an attack by the enemy and he helped his
mortally wounded friend get to a helicopter for aid.
Military records show that in March 1967 the identified
friend received an open head wound as the result of hostile
mortar fire.  The identified friend died in June 1967 from
his multi-fragment wounds.

As the veteran has identified a stressor which has been
verified, the question to be answered is whether competent
medical evidence links a diagnosis of PTSD to the verified
stressor.  VA examination reports from April 1997, September
1997, and October 1999 do not contain diagnoses of PTSD.
Instead, the reports indicated the veteran had an adjustment
disorder and anxiety affected by work-related circumstances
and economic problems.

An August 1998 private medical record shows that the private
psychiatrist diagnosed the veteran with PTSD, specifically
linked to the stressor that was verified in April 2002, in
addition to a diagnosis of depression that was secondary to
his physical condition.  The August 2000 hearing transcript
details the private psychiatrist's testimony regarding the
diagnostic criteria for PTSD in relation to the veteran.
Another private medical provider indicated in a September
2002 psychiatric report that the veteran had psychiatric
findings consistent with chronic PTSD that was combat-
related.

In contrast, a VA examiner indicated that the veteran did not
report feeling intense fear, helplessness, or horror when his
best friend was wounded in 1967 and therefore the veteran did
not have a stressor.  See May 2003 VA examination report.
The examiner also indicated that the veteran did not meet the
diagnostic criteria for PTSD as he did not become anxious or
depressed while discussing the in-service event and the
clinical picture did not contain evidence of avoidance of
stimuli associated with the trauma.  The report contains a
diagnosis of an anxiety disorder not otherwise specified.

While the VA evidence of record indicates that the veteran
has an anxiety disorder, the competent private medical
evidence record indicates that the veteran meets the
diagnostic criteria for PTSD, linked to a verified in-service
stressor.  Therefore, the Board concludes that the competent
evidence of record rises to the level of equipoise such that,
when reasonable doubt is resolved in the veteran's favor,
service connection for PTSD is warranted.

Earlier Effective Date Claim

In June 1997 the veteran filed a formal claim for
compensation or pension based on a back condition and a
nervous condition.  A nonservice-connected pension was denied
by a December 1997 rating decision and the veteran perfected
an appeal which was eventually resolved in his favor.  The
veteran argues that his pension benefits should be effective
when he filed his claim for benefits in 1997.

Here, the RO established entitlement to nonservice-connected
benefits based on the veteran's receipt of Social Security
Administration (SSA), consistent with a law that went into
effect in 2001, during the veteran's appeal for this benefit,
which provided that those determined to be disabled by the
Social Security Administration, shall be considered
permanently and totally disabled for VA purposes.
38 U.S.C.A. � 1502(a)(2).

However, prior to that date, nonservice-connected pension
benefits were warranted in any event, when a veteran who
served for 90 days or more during a period of war was
permanently and totally disabled due to nonservice-connected
disabilities not the result of his own willful misconduct,
and/or if his disability is less than 100 percent, he must be
unemployable by reason of disability.  38 U.S.C.A. � 1521
(West 1991 & Supp. 1999; 38 C.F.R. �� 3.321, 3.340, 3.342
(1999).

Here, the overall record shows that the veteran was
unemployable based his severe back condition and two
psychiatric disorders not the result of willful misconduct,
when he filed his claim, and therefore, even before the
change in the law that specifically provided an award of
pension benefits for those considered disabled by the Social
Security Administration.  Therefore, a nonservice-connected
pension is warranted prior to the change in regulations that
went into effect in September 2001.  As such, an effective
date of June 26, 1997, or when the veteran filed his claim,
is appropriate.  See 38 C.F.R. � 3.400 (the effective date of
an evaluation and an award of compensation based on an
original claim will be the date of receipt of the claim or
the date entitlement arose, whichever is the later).

Duty to Notify and Assist

When VA receives a complete or substantially complete
application for benefits, it is required to notify the
claimant and his representative, if any, of any information
and medical or lay evidence that is necessary to substantiate
the claim.  38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. �
3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183
(2002).

The veteran filed his PTSD and pension claims prior to the
enactment of current law addressing the duty to notify and
assist.  However, he was subsequently notified of the
evidence necessary to establish service connection by letters
in July 2001 and in September 2005.  He was notified of the
evidence necessary to establish an effective date by letter
in March 2003.  As the benefits sought herein have been
resolved in the veteran's favor, the Board concludes that the
VA's notice requirements to have been met and any matter as
to timing and completeness as not prejudicial.  Similarly,
VA's duty to assist the veteran in obtaining evidence
necessary to substantiate the claims for the benefits sought
has been satisfied.  38 U.S.C.A. � 5103A(a) (West 2002); 38
C.F.R. � 3.159(c), (d) (2005).

ORDER

Service connection for PTSD is granted.

An effective date of June 26, 1997, for the grant of
nonservice-connected pension benefits is granted, subject to
the laws and regulations governing the disbursement of VA
benefits.

____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: MARK F HALSEY

disposition: denied

condition: tinnitus

text:
Citation Nr: 0613000
Decision Date: 05/04/06    Archive Date: 05/15/06

DOCKET NO.  05-13 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Boston, Massachusetts

THE ISSUES

1.  Entitlement to an initial compensable evaluation for
bilateral hearing loss.

2.  Entitlement to an initial evaluation in excess of 10
percent for tinnitus.

ATTORNEY FOR THE BOARD

Lawrence W. Klute, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1954 to July
1956.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2004 decision by the RO in which the
veteran was granted service connection for bilateral hearing
loss with a noncompensable evaluation, and for tinnitus with
a 10 percent evaluation.  Service connection and the ratings
were made effective from March 25, 2004.

FINDINGS OF FACT

1.  The veteran has auditory acuity levels no worse than
Level I in each ear.

2.  The veteran's tinnitus is manifested by recurrent
symptoms.

CONCLUSIONS OF LAW

1.  The criteria for the assignment of an initial compensable
evaluation for bilateral hearing loss have not been met.
38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2005); 38 C.F.R. �� 3.321, 4.1, 4.7, 4.85, 4.86 (2005).

2.  An increased rating for tinnitus is not warranted.  38
U.S.C.A. � 1155 (West 2002); 38 C.F.R. �� 3.321, 4.1, 4.7,
4.87, Diagnostic Code 6260 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran seeks an initial compensable rating for bilateral
hearing loss, and an initial rating in excess of 10 percent
for tinnitus.  He contends that higher evaluations are
warranted because he has to wear hearing aids, and he does
not feel VA is compensating him properly for the symptoms
that he experiences.

I.  Preliminary Matters

On November 9, 2000, the President signed into the law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. ��
5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp.
2005).  The VCAA imposes obligations on VA in terms of its
duty to notify and assist claimants.

A.  The Duty to Notify

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim.  38 U.S.C.A. � 5103(a) (West 2002 &
Supp. 2005); 38 C.F.R. � 3.159(b) (2005); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in his possession that pertains to the claim in
accordance with 38 C.F.R. � 3.159(b)(1).

In the present case, VA has satisfied its duty to notify.  By
a letter dated in April 2004, VA informed the veteran of his
and VA's respective duties for obtaining evidence, and
requested that he send any evidence necessary to support his
claim that was in his possession.  Further, in an August 2004
statement of the case, the RO informed the veteran of the
rating schedule provisions that are relevant to his claim,
and provided him with an explanation as to why his claim had
been denied.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims held, in part,
that VCAA notice, as required by 38 U.S.C.A. � 5103(a), must
ordinarily be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits.  Here, as
noted above, some of the required notice was not provided to
the veteran until August 2004, after the RO entered its May
2004 decision on his claim.  Nevertheless, the veteran has
now been provided with notice that is in compliance with the
content requirements of 38 U.S.C.A. � 5103(a) and 38 C.F.R.
� 3.159(b).  He has been afforded ample opportunity to
respond to the notice, to submit evidence and argument, and
to otherwise participate effectively in the processing of
this appeal.  As the purpose of the notice requirement has
been satisfied, no further corrective action is necessary.
Additionally, the Board notes that while the RO did not
notify the veteran about the criteria for award of an
effective date, see Dingess v. Nicholson, No. 01-1917 (U.S.
Vet. App. March 3, 2006), this issue is not before the Board.
Consequently, remand for re-adjudication is not required.

B. The Duty to Assist

The VCAA also requires VA to make reasonable efforts to help
a claimant obtain evidence necessary to substantiate his
claim.  38 U.S.C.A. � 5103A (West 2002);
38 C.F.R. � 3.159(c), (d) (2005).  This "duty to assist"
contemplates that VA will help a claimant obtain records
relevant to his claim, whether or not the records are in
Federal custody, and that VA will provide a medical
examination and/or opinion when necessary to make a decision
on the claim.

In the present case, the veteran provided private medical
records, which included a June 2003 audiometric examination.
The RO obtained private medical records pursuant to releases
provided by the veteran.  In connection with his claim, the
veteran was afforded a VA audiometric examination in May
2004.  In connection with VA provision of hearing aids, he
was provided another VA audiometric examination in March
2005.

The Board concludes that the duty to assist has been
fulfilled.  In view of the foregoing, and because the veteran
has not provided specific identifying information and/or
releases for the procurement of additional evidence, the
Board finds that no further development action is necessary.
38 C.F.R. � 3.159(e).

II.  The Merits of the Veteran's Claims

Disability evaluations are determined by the application of a
schedule of ratings, which is in turn based on the average
impairment of earning capacity caused by a given disability.
38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.1 (2005).
Separate diagnostic codes identify the evaluations to be
assigned to the various disabilities.

If there is a question as to which of two evaluations shall
be applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating.  Otherwise, the lower rating will
be assigned.  38 C.F.R. � 4.7 (2005).  In assessing a claim
for an increased rating, the history of the disability should
be considered.  38 C.F.R. � 4.1 (2005); Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991).

A.  Hearing Loss

Hearing loss is rated on the basis of controlled speech
discrimination tests (Maryland CNC), together with the
results of puretone audiometry tests.  See 38 C.F.R. � 4.85
(2005).  The results of these tests are charted on Table VI,
as set out in the Rating Schedule, to determine the
appropriate Roman numeral designation (I through XI) to be
assigned for the hearing impairment in each ear.  These
numeric designations are then charted on Table VII to
determine the rating to be assigned.  Id.  See, e.g.,
Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992)
(evaluations of hearing loss are determined by a "mechanical
application" of the rating schedule).

Certain patterns of hearing loss are evaluated somewhat
differently.  However, the provisions relating to these
alternative methodologies apply only when the examiner
certifies that use of the speech discrimination test is not
appropriate; when the puretone threshold at each pertinent
frequency (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more; or when the puretone threshold is 30 decibels or
less at 1000 Hertz and 70 decibels or more at 2000 Hertz.
�� 4.85(c), 4.86.

In the present case, the Board finds that the preponderance
of the evidence is against the assignment of an initial
compensable rating for the veteran's bilateral hearing loss.
The Board in no way discounts the difficulties that the
veteran experiences as a result of his hearing loss.
However, it must be emphasized that the disability ratings
for hearing impairment are derived by a mechanical
application of the rating schedule to the numeric designation
assigned after audiometry results are obtained.  Hence, the
Board is required to make its determination with respect to
the schedular rating on the basis of the results of the
audiology studies of record.  See Lendenmann, supra.  In
other words, the Board is bound by law to apply VA's rating
schedule based on the veteran's audiometry results.  See 38
U.S.C.A. � 1155; 38 C.F.R. � 4.1.

There are three medical reports of record that contain speech
discrimination and puretone audiometry data--the report of a
June 2003 private examination, the report of a May 2004 VA
examination, and the report of a March 2005 VA examination.

With respect to the earliest of these three examinations, the
record shows that audiometric testing in June 2003 revealed
puretone thresholds in each of the pertinent frequencies
except for 3,000 Hertz.  Consequently, this test may not be
used to obtain puretone averages and numeric designations to
rate the veteran's level of hearing loss.  Nevertheless, the
discrimination scores were very similar to those obtained
later by VA, which suggests that similar results would have
been obtained had the June 2003 test been complete.

When the veteran was examined by VA in May 2004, audiometric
testing revealed puretone thresholds of 5, 25, 30, and 40
decibels in his right ear, and 25, 30, 45, and 50 decibels in
his left ear at 1,000, 2,000, 3,000, and 4,000 Hertz,
respectively.  (The average of these thresholds is 25 for the
right ear and 38 for the left ear.)  Additionally, he had
speech discrimination scores of 98 percent for the right ear,
and 96 percent for the left ear.  Under the applicable
criteria and Table VI, these results correspond to level I
acuity for each ear.  Application of the Level I findings to
Table VII results in a noncompensable (0 percent) rating
under 38 C.F.R. � 4.85, Diagnostic Code 6100.

When the veteran was examined by VA in March 2005,
audiometric testing revealed puretone thresholds of 10, 30,
40, and 40 decibels in his right ear, and 25, 30, 45, and 50
decibels in his left ear at 1,000, 2,000, 3,000, and 4,000
Hertz, respectively.  (The average of these thresholds is 30
for the right ear and 38 for the left ear.)  Additionally, he
had speech discrimination scores of 92 percent, bilaterally.
Under the applicable criteria and Table VI, these results
correspond to level I acuity for each ear.  Application of
the Level I findings to Table VII results in a noncompensable
(0 percent) rating under 38 C.F.R. � 4.85, Diagnostic Code
6100.

There is no suggestion that use of the speech discrimination
test was inappropriate in the veteran's case, and the
evidence does not demonstrate that he has an "exceptional"
pattern of hearing impairment as defined in 38 C.F.R. � 4.86
(2005).  Accordingly, there is no basis for the assignment of
a higher schedular rating.

In evaluating this claim, the Board has specifically
considered whether the veteran is entitled to a "staged
rating."  See Fenderson v. West, 12 Vet. App. 119, 125-26
(1999).  It is the Board's conclusion, however, that the
criteria for a compensable rating have not been met at any
time since the veteran was awarded service connection.  A
"staged rating" is not warranted.

B.  Tinnitus

In a December 2003 letter from his private physician, it was
noted that the veteran had reported loud ringing in his ears.
In his March 2004 claim, and his April 2004 statement in
support of his claim, the veteran complained of ringing in
his ears.  At the May 2004 VA audiometric examination, the
veteran reported a mostly constant, unilateral, high-pitched,
ringing tinnitus in the left ear since the 1970s.  In his
June 2004 notice of disagreement, the veteran complained that
the noise level and frequency of his tinnitus had increased
to an unbearable level.  After he had tolerated it for so
many years, he felt the compensation provided by VA was
meager, unjust, and unreasonable.

The veteran's claim for service-connected tinnitus was filed
in March 2004.  For all tinnitus claims filed on or after
June 13, 2003, the applicable Diagnostic Code provides that a
maximum 10 percent evaluation is assignable.  38 C.F.R. �
4.87, Diagnostic Code 6260 (2005).  It also provides that
only a single evaluation may be assigned for recurrent
tinnitus whether the sound is perceived in one ear, both
ears, or in the head.  38 C.F.R. � 4.87, Diagnostic Code
6260, Note (2) (2005).

This is not a case where the Board has discretion to award a
higher rating for the veteran's tinnitus.  It makes no
difference in the rating whether tinnitus is experienced in
one ear, both ears, or in the head; whether the ringing sound
is loud or soft; or whether it has been experienced for one
year or many years.  The Board concludes that there is no
legal basis upon which to award the veteran a higher initial
schedular evaluation for tinnitus for a claim filed after
June 13, 2003.

In evaluating this claim, the Board has specifically
considered whether the veteran is entitled to a "staged
rating."  Fenderson, supra.  It is the Board's conclusion,
however, that a "staged rating" is not warranted because the
maximum assignable rating has been assigned to the veteran
since he was granted service connection for his tinnitus.

III.  Extraschedular Consideration

To accord justice in an exceptional case where the schedular
standards are found to be inadequate, the RO is authorized to
refer a case to the Under Secretary for Benefits or the
Director of the Compensation and Pension Service for
assignment of an extraschedular evaluation commensurate with
the average earning capacity impairment due exclusively to
the service-connected disability.  38 C.F.R. � 3.321(b)(1)
(2005).  The criterion for such an award is a finding that
the case presents an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of regular schedular
standards.  Id.

The Board has considered whether the veteran's hearing loss
or his tinnitus claim should be referred for consideration of
an extraschedular evaluation, and has concluded that no such
referral is warranted.  The record does not show that he has
been hospitalized for problems with hearing loss, or for
tinnitus, and there is nothing in the record to suggest that
his disability picture is so exceptional or unusual as to
render impractical the application of the regular schedular
standards.  As noted above, he has reported that he must wear
hearing aids and that his tinnitus is so loud as to be
particularly bothersome.  The use of hearing aids is
contemplated by the drafters of the rating schedule, see
38 C.F.R. � 4.85(a), and there is no suggestion in the
objective medical record that the intensity of the tinnitus
is such that his disability should be treated as so unusual
as to be an exception to the rating schedule criteria.

ORDER

Entitlement for an initial compensable rating for bilateral
hearing loss is denied.

Entitlement for an initial rating in excess of 10 percent for
tinnitus is denied.

________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: CHERYL L MASON

disposition: granted

text:
Citation Nr: 0614000
Decision Date: 05/12/06    Archive Date: 05/25/06

DOCKET NO.  02-15 265	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for aortic valvular
stenosis.

REPRESENTATION

Veteran represented by: Paralyzed Veterans of America, Inc.

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

P. Boominathan, Associate Counsel
INTRODUCTION

The veteran had active service from May 1969 to June 1970.

This matter is before the Board of Veterans' Appeals (Board)
on appeal of a January 2002 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Albuquerque,
New Mexico.

In a September 2004 decision, the Board found that new and
material evidence had been received to reopen the claim for
entitlement to service connection for aortic valvular
stenosis.  In light of the reopened claim, the issue of
service connection for an aortic valvular stenosis was
subsequently remanded to the RO/AMC by the Board for a de
novo review of the record.  The case has been returned to the
Board for further appellate review.

FINDINGS OF FACT

1. Aortic valvular stenosis clearly and unmistakably existed
prior to the veteran's entry into active service.

2. The competent medical evidence cannot determine if
strenuous activity related to military service aggravated the
veteran's aortic valvular stenosis or if the aortic valvular
stenosis increased in severity in service.

CONCLUSION OF LAW

As aortic valve stenosis existed prior to service,
aggravation cannot affirmatively be ascertained and resolving
doubt in favor of the veteran, aotic valvular stenosis was
aggravated by service.  38 U.S.C.A. �� 1111, 1131, 1132,
1153, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.303,
3.304, 3.306 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Analysis

The veteran claims service connection for aortic valvular
stenosis.  The veteran testified that he did not know that he
had a heart murmur prior to the military.  After basic
training, he was unable to keep up with advance infantry
training, passed out once, and had chest pains.  Six months
later, he was told he had a heart condition and was
discharged.

Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by active
service.  38 U.S.C.A. � 1110 (West 2002).  The United States
Court of Appeals for Veterans Claims (Court) has held that,
in order to prevail on the issue of service connection, there
must be (1) medical evidence of a current disability; (2)
medical, or in certain circumstances, lay evidence of in-
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); see also Pond
v. West, 12 Vet. App. 341, 346 (1999).

A veteran will be considered to have been in sound condition
when examined, accepted and enrolled for service, except as
to defects, infirmities, or disorders noted at entrance into
service, or where clear and unmistakable (obvious or
manifest) evidence demonstrates that an injury or disease
existed prior thereto.  Only such conditions as are recorded
in examination reports are to be considered as noted.  38
U.S.C.A. �� 1111, 1131, 1132; 38 C.F.R. � 3.304(b).  VA's
General Counsel held that to rebut the presumption of sound
condition under 38 U.S.C.
� 1111, VA must show by clear and unmistakable evidence (1)
that the disease or injury existed prior to service and (2)
that the disease or injury was not aggravated by service.
The claimant is not required to show that the disease or
injury increased in severity during service before VA's duty
under the second prong of this rebuttal standard attaches.
VAOGCPREC 3-2003; see generally Cotant v. Principi, 17 Vet.
App. 116, 124 (2003) (CAVC raised the question of the proper
interpretation of sections 1111 and 1153 and the validity of
the pertinent part of 38 C.F.R. � 3.304(b) under that
interpretation).  Effective May 4, 2005, VA amended its
regulations at 38 C.F.R. � 3.304(b) to reflect the change in
the interpretation of the statute governing the presumption
of sound condition.  The final rule conforms to Federal
Circuit precedent Wagner v. Principi, 370 F. 3d 1089, 1096
(Fed. Cir. 2004), and applies to claims, which were pending
on or filed after May 4, 2005.  As the veteran's case was
pending as of that date, the amendment applies.

The United States Court of Appeals for the Federal Circuit
(Circuit Court) held that 38 U.S.C.A. �� 1110, 1131 provide
compensation for disability incurred during wartime and
peacetime service and a presumption of soundness upon
entrance into service, except as to disorders noted at that
time, under 38 U.S.C.A. �� 1111, 1132. Wagner v. Principi,
370 F. 3d 1089, 1096 (Fed. Cir. 2004).  The Court held that
it may be overcome only 'where clear and unmistakable
evidence demonstrates that the injury or disease existed
before acceptance and enrollment and was not aggravated by
such service."  Wagner v. Principi, 370 F. 3d 1089, 1096
(Fed. Cir. 2004) (citing 38 U.S.C. � 1111 (emphasis added));
see VAOGCPREC 3- 2003 (July 16, 2003).

If a pre-existing disorder is noted upon entry into service,
the veteran cannot bring a claim for service connection for
that disorder, but the veteran may bring a claim for service-
connected aggravation of that disorder.  In that case section
1153 applies and the burden falls on the veteran to establish
aggravation.   See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.
Cir. 1994).  If the presumption of aggravation under section
1153 arises, the burden shifts to the government to show a
lack of aggravation by establishing 'that the increase in
disability is due to the natural progress of the disease.'
38 U.S.C. � 1153; see also 38 C.F.R. � 3.306; Jensen, 19 F.3d
at 1417, Wagner, supra.

Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
pre-service disability underwent an increase in severity
during service.  This includes medical facts and principles
which may be considered to determine whether the increase is
due to the natural progress of the condition.  Aggravation
may not be conceded where the disability underwent no
increase in severity during service on the basis of all the
evidence of record pertaining to the manifestations of the
disability prior to, during and subsequent to service.  38
C.F.R. � 3.306(b).

Enlistment report does not show any cardiac abnormality.  A
December 1969 record says that the veteran complained of
heart murmur, note past consult.  An April 1970 clinical
record shows that the veteran was diagnosed with aortic
valvular stenosis, congenital, suspected.  A medical board
report dated April 1970 shows that the veteran shows that a
cardiac murmur was first noted in October 1969 during an
induction to a physical exam at Camp Pendleton.  He was
subsequently transferred to North Carolina, then to Virginia
and admitted to the hospital.  The diagnosis was aortic
valvular stenosis, mild, etiology undetermined although
probably congenital.  The Medical Board concluded that the
condition pre-existed service and was neither incurred in nor
aggravated by a period of active service.

A June 1990 private treatment record showed that the veteran
had moderate aortic outflow obstruction from a congenitally
bicuspid valve.  A November 1990 letter from a private
physician states that the veteran suffers from aortic outflow
from a congenitally bicuspid valve.  The physician expressed
his surprise that the veteran was inducted into the military
with such lesions.

An August 2001 VA examination noted that the veteran had a
St. Jude valve put in his heart in 1996, and was diagnosed
with aortic valvular stenosis.  The examiner stated that it
was highly probable that this condition pre-existed the
service but was significantly aggravated by heavy physical
activity in basic training.  The examiner noted that the
veteran was found to have high blood pressure by his primary
physician.

A November 2001 letter from private physician, Dr. A., states
that the veteran had a cardiac murmur secondary to aortic
valvular disease and replacement.

A March 2002 VA examination noted that the veteran had been
active as a youth and that upon induction there was no
documentation of cardiac abnormality.  The veteran reported
that he was in boot camp training from May to October 1969,
and that during that time, he passed out.  He claims he was
told that he had rigors and muscle activity.  The veteran
stated that at the time, he was told that his collapse was
due to heat stroke.  The veteran related that in October 1969
at his pre-deployment physical, a cardiac murmur was
detected.  The examiner noted that there was no examination
of this date of file.  The examiner noted that a December
1969 record stated "the patient complained of heart murmur,
note past consult."  The referred to consult was not of
record.

The veteran related that he was then hospitalized and
discharged due to his condition.  From 1977 to 1988, the
veteran related that he was treated at the Long Beach VA
hospital; the examiner noted that there were no treatment
records.  The veteran reports that in 1988, he was seen at
the Albuquerque VAMC; there are no treatment records of file.
The examiner noted that the veteran had valve replacement
surgery in 1996.  The VA examiner diagnosed the veteran with
congenital bicuspid aortic valve status post aortic valve
replacement in 1996.  The examiner stated "there are no
studies to date which have looked at the effect of strenuous
activity on progression of aortic stenosis.  The natural
progression of congenital (bicuspid valve) stenosis is that
the stenosis progresses and becomes symptomatic over time.,
with valve replacement becoming necessary during the fourth
to sixth decade.  Therefore, it is impossible to say whether
the patient's congenital stenosis has progressed due to
military service."

The veteran had a VA examination in May 2005.  The examiner
noted the veteran's history and reviewed the claims file.
The examiner diagnosed the veteran with congenital bicuspid
aortic valve post St. Jude's aortic valve replacement in
1996.  When asked to comment on whether the veteran's pre-
existing aortic valve disorder was aggravated by the
veteran's service, the examiner offered the following
explanation.

Congenital (present at birth) bicuspid
aortic valves occur in approximately 1-
2% of the general population with a male
predominance.  Due to the inherent
structure of the valve, the natural
history of a bicuspid aortic valve is
the development of aortic stenosis over
time.  Stenosis eventually progresses,
and becomes symptomatic requiring a
valve replacement typically in the
patient's fourth to sixth decade.

There are no studies evaluating the
effect of strenuous activity on the
progression of aortic stenosis, either
from a congenital bicuspid vale or other
etiologies.  Therefore, it is impossible
to confirm whether [the veteran's]
progression of his congenital bicuspid
valve aortic stenosis was aggravated by
strenuous activity related to his
military service.

The examiner cited to several medical authorities in
providing this opinion.  The examiner also responded to the
question of whether the veteran's aortic valvular stenosis
could have been aggravated by hypertension or elevated
cholesterol present during his military service.  After
reviewing the blood pressure readings from service medical
records, the examiner concluded that the veteran did not meet
the criteria for hypertension under current standards.  Since
there was no evidence of hypertension in the service medical
records, the examiner stated that there was no basis for
establishing the diagnosis of hypertension during active duty
or in the post-discharge year.  The examiner also stated that
although aortic stenosis can be aggravated by hypertension,
there is no documentation that the diagnosis of hypertension
was present within one year of the veteran's separation from
active duty.

Initially, the Board notes that the veteran does not assert,
nor does the evidence show, that the aortic valve stenosis
occurred in service.  Rather, the veteran claims that the
cardiac condition was pre-existing condition aggravated by
the strenuous activity in service.  Though not noted in the
veteran's enlistment examination, all the medical evidence
indicates that the veteran's condition is congenital in
nature.  Therefore, it is shown by clear and unmistakable
medical evidence that the aortic valvular condition existed
prior to service as it existed at birth.  The only remaining
question is to determine whether the aortic valvular stenosis
was aggravated by service. VAOGCPREC 3-2003; see generally
Cotant v. Principi, 17 Vet. App. 116, 124 (2003) (CAVC raised
the question of the proper interpretation of sections 1111
and 1153 and the validity of the pertinent part of 38 C.F.R.
� 3.304(b) under that interpretation).

Upon review of the record, the Board finds that the
preponderance of the evidence shows that the aortic valvular
stenosis was aggravated in service.  The March 2002 and May
2005 VA examiners state that since there are no studies
evaluating the effect of strenuous activity on the
progression of aortic stenosis, either from a congenital
bicuspid valve or other etiologies, it is impossible to
confirm whether the progression of the congenital bicuspid
valve aortic stenosis was aggravated by strenuous activity
related to service.  However, there is a showing of some
aggravation in service. The August 2001 VA examiner opined
that that it was highly probable that this condition pre-
existed the service but was significantly aggravated by heavy
physical activity in basic training.  Additionally, though
there was no evidence of a cardiac condition upon enlistment,
an April 1970 medical board report shows that the veteran
shows that a cardiac murmur was first noted in October 1969,
shortly after enlistment.  Therefore, as there no conclusive
medical evidence as to whether aortic valve stenosis is
aggravated by the conditions of service, the condition was
diagnosed shortly after enlistment, and resolving doubt in
the veteran's favor, aortic valvular stenosis was aggravated
by service.  Accordingly, the veteran's claim for service
connection for aortic valvular stenosis is granted.

The Board has considered the veteran's claim with respect to
the Veterans Claims Assistance Act of 2000, 38 U.S.C.A.
�� 5100 et. seq. (West 2002 & Supp. 2005).  Given the
favorable outcome as noted above, no conceivable prejudice to
the veteran could result from this adjudication.  See Bernard
v. Brown, 4 Vet. App. 384, 393 (1993).

ORDER

Service connection for aortic valvular stenosis is granted.

____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JOHN J CROWLEY

condition: eye

text:
Citation Nr: 0615000
Decision Date: 05/23/06    Archive Date: 06/02/06

DOCKET NO.  04-28 070	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen a claim for service connection for a left eye
condition.

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

REPRESENTATION

Appellant represented by:	Mississippi Veterans Affairs
Commission

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

D. M. Ames, Associate Counsel

INTRODUCTION

The veteran had active service from March 1978 to March 2001
in the Mississippi National Guard and from January 1991 to
June 1991 in the Army.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from March 2003 and January 2004 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Jackson, Mississippi.

FINDINGS OF FACT

1.  In May 2001 the RO denied the veteran's claims for
service connection for a left eye condition and a left foot
injury.  The veteran did not appeal the RO's decision.

2.  Evidence received since the May 2001 RO denial that
pertains to the veteran's left eye claim is duplicative or
cumulative of evidence previously considered or does not
relate to an unestablished fact necessary to substantiate the
claim.

3.  Evidence received since the May 2001 RO denial that
pertains to the veteran's left foot claim is not duplicative
or cumulative of evidence previously considered and does
relate to an unestablished fact necessary to substantiate the
claim.

5.  The evidence of record does not establish that the
veteran's left foot disability was caused by his military
service.

CONCLUSIONS OF LAW

1.  The May 2001 rating decision is final.  38 U.S.C.A.
� 7105 (West 2002); 38 C.F.R. �� 3.160(d), 20.200, 20.302,
20.1103 (2005).

2.  No new and material evidence has been received since the
May 2001 RO denial of service connection for a left eye
condition.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R.
� 3.156(a) (2005).

3.  New and material evidence has been received since the May
2001 RO denial of service connection for a left foot
disability.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R.
�� 3.156(a), (c) (2005).

4.  Service connection for a left foot disability is not
established.  38 U.S.C.A. �� 1110, 1131, 5107 (West 2002);
38 C.F.R. � 3.303 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In May 2001 the RO denied the veteran's claims for service
connection for a left eye condition and a left foot
disability.  The veteran did not appeal the decision.
Therefore, the May 2001 RO decision is final.  38 U.S.C.A.
� 7105 (West 2002); 38 C.F.R. �� 3.160(d) (2005); 38 C.F.R.
� 20.200, 20.302, 20.1103 (2005).

If new and material evidence is presented or secured with
respect to a claim that has been denied, VA must reopen the
claim and review its former disposition.  38 U.S.C.A. � 5108.
New evidence means existing evidence not previously submitted
to agency decisionmakers.  Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim.  New and material
evidence can be neither cumulative nor redundant of the
evidence already of record at the time of the last prior
final denial of the claim sought to be opened.  It must raise
a reasonable possibility of substantiating the claim.
38 C.F.R. � 3.156(a) (2005).

In determining whether evidence is "new and material," the
credibility of the new evidence must be presumed.  Justus v.
Principi, 3 Vet. App. 510, 513 (1992).  But see Duran v.
Brown, 7 Vet. App. 216 (1994) ("Justus does not require the
Secretary to consider the patently incredible to be
credible").

Where the new and material evidence consists of a
supplemental report from the service department, the former
decision will be reconsidered by the agency of original
jurisdiction. 38 C.F.R. � 3.156(c) (2005).

Evidence received since the May 2001 denial of service
connection for a left eye condition and a left foot
disability consists of the following: three buddy statements
dated in November 2002, VA Medical Center (VAMC) treatment
records, duplicates of the veteran's DD214s, a NGB Form 22
indicating the veteran's period of National Guard Service, a
DA Form 2173 indicating that the veteran suffered a left leg
injury while on duty in May 1981, a DA Form 2173 indicating
that the veteran suffered a left eye injury while on duty in
July 1985, a duplicate of the July 1985 DA Form 2173, a buddy
statement dated in December 2003, a duplicate of the December
2003 buddy statement, a March 2004 private medical record
from Dr. M. Z., records from an October 2005 VA eye
examination, and a transcript of the veteran's March 2006
video conference hearing.

With the exception of the duplicates of the DD214s, the July
1985 DA Form 2713, and the duplicate of the December 2003
buddy statement, the evidence is new, in that it has not been
submitted to VA before.

With regards to the VAMC treatment records and eye
examination, during the eye appointment, the veteran stated
that "a lot of soldiers that got shots during Desert Storm
said their vision was never 'right' again after they got
those shots."  The veteran, however, does not have the
medical expertise to find that his current disorder is
related to service.  See Bostain v. West, 11 Vet. App. 124,
127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492
(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").

VAMC records from October 2003 report a history of prior foot
injury and show treatment for his left foot disability and
eye condition, but do not provide evidence linking the
veteran's left foot disability or left eye condition to his
period of active service.  Therefore they are not material to
the claims.

With regards to the NGB Form 22, it does not pertain to the
veteran's left eye condition or left foot disability.
Therefore it is not material to either claim.

Information contained in the private record from Dr. M. Z.,
the four buddy statements, and the March 2006 hearing
transcript, does not relate to an unestablished fact
necessary to substantiate the claim.  Specifically, they do
not provide a link between the veteran's claimed disabilities
and his period of active service.  Therefore, they are not
material to the claims.

With regards to DD Form 2173 showing that the veteran
sustained a left eye injury in service, the evidence is not
material because the veteran's service medical records (SMRs)
document the veteran's eye injury and the DD Form 2173 does
not provide information absent in the SMRs, which were of
record at the time of the May 2001 RO denial.  The RO
considered the SMRs that documented the veteran's eye injury
in its May 2001 decision.

The Board finds that the evidence pertaining to the veteran's
claim for service connection for a left eye condition is not
new and material because it does not provide evidence linking
the veteran's left eye condition to his period of active
service.  38 C.F.R. � 3.156(a).  Specifically, none of the
evidence received indicates that the veteran's eye condition
was incurred during, or aggravated by, his military service.
Accordingly, the Board finds no new and material evidence to
reopen the claim for service connection for a left eye
condition.  The claim is not reopened.  38 U.S.C.A. � 5108.

With regards to the DD Form 2173 showing that the veteran
sustained a left leg injury while in service in May 1981, the
veteran's SMRs are negative for any evidence of a left leg
injury.  Therefore, the DD Form 2173 is material to the
veteran's claim.  Previously, the RO had rejected the
veteran's assertion that there had been an in-service injury.

Based upon the reasons for the prior denial, the added
service department record is relevant, probative and clearly
cures one of the evidentiary defects that had existed at the
time of the prior denial.  Accordingly, the claim is
reopened.  38 U.S.C.A. � 5108.

The Board observes that the January 2003, November 2003, and
January 2005 VCAA notice letters informed the veteran of what
constituted new and material evidence.  The veteran was
informed that new evidence must be evidence that was
submitted to VA for the first time, that was not cumulative
or tended to reinforce a previously established point.  He
was informed that material evidence must  relate directly to
substantiation of the claim.  Therefore, there is no
prejudice to the veteran.  Kent v. Nicholson, No. 04-181
(U.S. Vet. App. March 31, 2006).

The second step for the Board in this case is to assess the
new and material evidence in the context of the other
evidence of record and make new factual determinations.  See
Masors v. Derwinski, 2 Vet. App. 181, 185 (1992) (quoting
Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991), and
Jones v. Derwinski, 1 Vet. App. 210, 215 (1991)).  A finding
of "new and material" evidence does not mean that the case
will be allowed, just that the case will be reopened and new
evidence considered in the context of all other evidence for
a new determination of the issues.  Smith v. Derwinski,
1 Vet. App. 178, 179-80 (1991).

The Board has considered whether adjudicating this claim on a
de novo basis at this time would prejudice the veteran.  See
Bernard v. Brown, 4 Vet. App. 384 (1993).  This issue was
addressed by the U.S. Court of Appeals for Veterans Claims
(Court) in Sutton v. Brown, 9 Vet. App. 553 (1996).  In
Sutton, the Court stated, in pertinent part:

Although the veteran may have argued the
merits of his claim before the Board,
reviewed the [independent medical
opinion], submitted additional evidence
in rebuttal, and stated that he had
nothing further to present, the Board was
nevertheless required under Bernard, to
ask the veteran if he objected to Board
adjudication in the first instance.
[citations omitted].  Alternatively,
failing to make that inquiry of the
veteran, the [Board] decision should,
under Bernard, have explained, as part of
its statement of reasons or bases, why
there was no prejudice to the veteran
from its adjudication of the claim on the
merits without first remanding the matter
to the RO.

Id. at 565.

Under Bernard, the Board must determine if the veteran has
been given both adequate notice of the need to submit
evidence or argument and to address that question at a
hearing, and whether, if such notice has not been provided,
the veteran has been prejudiced thereby.  Bernard, 4 Vet.
App. at 393.

In this case, over several years, the veteran has been
provided with the pertinent laws and regulations regarding
service connection, the issue before the Board at this time.
He has been given the opportunity to review the evidence of
record and submit arguments in support of his claim.  The
veteran's arguments have focused squarely on the issue of
service connection, not whether new and material evidence has
been submitted.  Consequently, the Board finds that the
veteran would not be prejudiced by the adjudication of his
claims at this time.  Accordingly, there is no basis for an
additional delay in the adjudication of this case and the
Board will proceed with the adjudication of the claims of
entitlement to service connection on a de novo basis.

Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease that was incurred or aggravated during
active military service.  38 U.S.C.A. �� 1110, 1131 (West
2002); 38 C.F.R.
� 3.303(a) (2005).

Direct service connection generally requires evidence of a
current disability with a relationship or connection to an
injury or disease or some other manifestation of the
disability during service.  Boyer v. West, 210 F.3d 1351,
1353 (Fed. Cir. 2000).  A disorder may be service connected
if the evidence of record reveals that the veteran currently
has a disorder that was chronic in service or, if not
chronic, that was seen in service with continuity of
symptomatology demonstrated subsequent to service.  38 C.F.R.
� 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).
Evidence that relates the current disorder to service must be
medical unless it relates to a disorder that may be
competently demonstrated by lay observation.  Savage, 10 Vet.
App. at 495-97.  For the showing of chronic disease in
service, there is a required combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic."  38 C.F.R. � 3.303(b).

Disorders diagnosed after discharge may still be service
connected if all the evidence, including relevant service
records, establishes that the disorder was incurred in
service.  38 C.F.R. � 3.303(d).

Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical evidence do not constitute competent medical
evidence.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination,
the benefit of the doubt is resolved in favor of the veteran.
38 U.S.C.A. � 5107(b).

The first requirement for any service connection claim is
competent evidence of existence of a current disability.
Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 2 Vet. App.
492, 494 (1992).  March 2004 records from Dr. M. Z. provides
diagnoses of peroneal brevis tendonitis with left heel spur
syndrome, bilateral bunions, onychomycosis, paronychia, and
pain and difficulty walking.  The veteran wears anti-shock
inserts in his boots and has been treated with injections.
Thus, he has a current disability.

The veteran's SMRs are completely negative for a left foot
injury.  A DA Form 2173 shows that the veteran hurt his left
leg while on duty in May 1981 when a cross tie fell on his
left leg.  The DA Form 2173 indicates that he was taken to a
hospital for an x-ray and then returned to the Company area.
A review of the service medical records indicates that the
veteran's left leg injury was acute and transitory, not
chronic.  For example, there is not indication of problems
with the leg after the injury in question.  The Board finds
that the SMRs provide evidence against the claim.

Post-service VA and private medical evidence do not provide a
link between the veteran's May 1981 injury and his current
left foot disability.  The Board finds that the post-service
records, as a whole, provide evidence against the claim as it
indicates a disorder that began many years after service.

The Board must note the lapse of many years between the
veteran's separation from service and the first treatment for
the claimed disorder.  The United States Court of Appeals for
the Federal Circuit has determined that such a lapse of time
is a factor for consideration in deciding a service
connection claim.  Maxson v. Gober, 230 F.3rd 1330, 1333
(Fed. Cir. 2000).

The preponderance of the evidence is against the claim for
service connection for a left foot disability.  38 U.S.C.A.
� 5107(b).  The appeal is denied.

The Duty to Notify and the Duty to Assist

Review of the claims folder reveals compliance with the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.
� 5100 et seq.  See 38 C.F.R.
��  3.102, 3.156(a), 3.159, 3.326(a).  That is, by letters
dated in January 2003, November 2003, and February 2005, as
well as information provided in the June 2004 statement of
the case (SOC) and October 2005 supplemental statement of the
case (SSOC), the RO advised the veteran of the evidence
needed to substantiate his claims and explained what evidence
VA was obligated to obtain or to assist the veteran in
obtaining and what information or evidence the veteran was
responsible for providing.  In addition, the June 2004 SOC
and October 2005 SSOC include the text of the regulation that
implements the notice and assistance provisions from the
statute.  Thus, the Board finds that the RO has provided all
notice required by the VCAA.  38 U.S.C.A. � 5103(a).  See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The Board observes that the RO issued the VCAA notice in
January 2003, prior to the adverse determination on appeal.
Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  The RO
did not specifically ask the veteran to provide any evidence
in his possession that pertains to the claim.  Id. at 120-21.

However, the Board is satisfied that the January 2003,
November 2003, and February 2005 VCAA notices and the June
2004 SOC and October 2005 SSOC otherwise fully notified the
veteran of the need to give VA any evidence pertaining to his
claim, such that there is no prejudice to the veteran.
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).   See
Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R.
� 20.1102 (harmless error).  Because the veteran finally did
receive full notice, well before the Board adjudicated this
case, the timing of the notice is found harmless error.

The Board notes that the veteran was not informed that a
disability rating and effective date would be assigned if his
claims were granted.  However, since the veteran's new and
material evidence claim pertaining to his left eye condition
and his claim for service connection for a left foot
disability are being denied, no disability rating or
effective date will be assigned.  Therefore there can be no
possibility of any prejudice to the veteran.  See Dingess v.
Nicholson, 19 Vet. App. 473 (2006).

Moreover, neither the veteran nor his representative has made
any showing or allegation that the content of the VCAA notice
resulted in any prejudice to the veteran.

With respect to the duty to assist, the RO has secured the
veteran's service medical records, VA medical records,
private medical records, and VA reports.  As there is no
other indication or allegation that relevant evidence remains
outstanding, the Board finds that the duty to assist has been
met.  38 U.S.C.A. � 5103A.

The Board notes that an etiological opinion has not been
obtained for the veteran's left foot disability.  However,
the Board finds that the evidence, discussed above, which
indicates that there is no competent medical evidence showing
or indicating a nexus between service and the disorder at
issue, warrants the conclusion that a remand for an
examination and/or opinion is not necessary to decide the
claim.  See 38 C.F.R.  � 3.159 (c)(4) (2005).  As service and
post-service medical records provide no basis to grant this
claim, and provide evidence against the claim, the Board
finds no basis for a VA examination to be obtained.

ORDER

As no new and material evidence has been received, the claim
for service connection for a left eye condition is not
reopened.  The appeal is denied.

Service connection for a left foot disability is denied.

____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: GARY L GICK

text:
Citation Nr: 0617000
Decision Date: 06/09/06    Archive Date: 06/26/06

DOCKET NO.  00-09 405A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for sleep apnea.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Robert A. Leaf, Counsel

INTRODUCTION

The veteran had active military service from July 1982 to
December 1997.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veterans Affairs (VA).  In a February 1998 rating
decision, the RO denied a claim for entitlement to service
connection for sleep apnea as not well grounded. The veteran
perfected an appeal as to this matter in December 1998.  The
issue was re-adjudicated on the merits in an October 2001
supplemental statement of the case.

In a May 1999 rating decision the RO granted an increased 10
percent disability evaluation for the residuals of a left
ankle sprain.  The veteran subsequently perfected his appeal
as to this matter.

The Board issued a decision in June 2005, that denied a
rating in excess of 10 percent for residuals of left ankle
sprain.  In addition, the Board remanded for procedural
development the issue of service connection for sleep apnea.
Remand to the RO was accomplished through the Appeals
Management Center (AMC), in Washington, DC.  The development
requested on remand was completed, and the case was returned
to the Board for continuation of appellate review.

FINDING OF FACT

There is no competent evidence that the veteran now has sleep
apnea that is attributable to military service.

CONCLUSION OF LAW

Sleep apnea was not incurred in or aggravated by service.
38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. � 3.303
(2005).

REASONS AND BASES FOR FINDING AND CONCLUSION

Procedural Due Process, Preliminary Duties to Notify and
Assist

VA has met the notice and duty to assist provisions of 38
U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38
C.F.R. �� 3.102, 3.156(a), 3.159, 3.326.  The letter from the
RO, dated in July 2005, coupled with the Board's remand of
June 2005, satisfied the duty to notify provisions.  The
veteran has been accorded examinations for disability
evaluation purposes, and there is no indication in the record
that additional evidence relevant to the issue decided herein
is available and not part of the claims file.  Consequently,
the Board finds that VA has met the duties to notify and
assist as to the issue decided herein.

While the initial denial of this claim was in February 1998,
the veteran was thereafter provided examinations and the
claim was readjudicated after appropriate notice was
furnished the veteran.  To the extent that VA has failed to
fulfill any duty to notify or assist the veteran, the Board
finds that error to be harmless.  As there is no indication
that any failure on the part of VA to provide additional
notice or assistance reasonably affects the outcome of this
case, the Board finds that any such failure is harmless.

Legal Criteria

In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein beyond its natural progression.
38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).

Service connection may be granted for a disease initially
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).

Analysis

The veteran maintains that a surgical procedure, performed
during service in June 1997, to correct sleep apnea, left him
prone to colds, sore throat, and daily "reflex."  He
asserts that these postoperative complications have persisted
throughout the years since he completed military service.  He
claims that his snoring, at first alleviated by the
procedure, has recurred and is as loud as it was before
surgery.

Service medical records disclose that the veteran presented
at clinics on multiple occasions for symptoms that included
sore throat, nasal congestion, sputum production, and sinus
discomfort.  The collection of presenting symptoms was
variously attributed to upper respiratory infection,
pharyngitis, viral syndrome, and sinusitis.

Additionally, the veteran was evaluated at a clinic in
February 1986, for a problem identified by his spouse as loud
snoring.  He reportedly slept well and deeply and was not
experiencing symptoms of upper respiratory infection.  The
ear, nose and throat examination was normal.  In October
1986, the veteran was evaluated for a problem of
progressively louder snoring, with possible apneic episodes.
The assessment was probable sleep apnea, by history.

An essentially similar pattern of symptoms during sleep was
described in a January 1988 treatment entry, and the
assessment was possible sleep apnea syndrome.  The same
symptom pattern led to the veteran's referral to the ear,
nose and throat service in May 1990.  Following clinical
inspection, the assessments were deviated nasal septum and
allergic rhinitis.

The veteran was referred to a pulmonary clinic in January
1997 because of the report of his spouse that he was
experiencing progressively louder snoring, accompanied by
episodes of cessation of breathing and a "choking
sensation."  The assessment was rule out obstructive sleep
apnea.  A March 1997 sleep study, by polysomnography, showed
a respiratory disturbance index of 5.  In April 1997,
clinical inspection revealed a large tongue and enlarged
tonsils, as well as deviation of the nasal septum.  The
examiner doubted that the veteran's severe snoring was due to
obstructive sleep apnea.  It was recommended that the veteran
undergo a uvulopalatopharyngoplasty (UPPP).

A June 1997 treatment entry indicates that the veteran was
status post UPPP, and was doing well.  He reportedly was
sleeping much better-his snoring was quieter.  He
experienced only occasional nasopharyngeal reflux.  The
assessment was normal postoperative course with good result
as to sleeping and snoring.

An April 1998 report from a VA sleep laboratory shows that
the veteran underwent polysomnography.  The impression was
primary snoring, with no evidence of significant sleep-
disordered breathing.

A VA ear, nose and throat (ENT) examination was performed in
March 1999.  The diagnoses were sleep apnea, previously
documented, now status post UPPP, with persistent symptoms;
and recurrent sinusitis, possibly secondary to nasal
regurgitation of food, though on examination, the veteran had
acute closure of the nasopharynx.  In an addendum notation,
examiners mentioned the above-referenced polysomnography
findings by VA.  The assessment was residual of mild
subjective symptoms of nasal regurgitation.

A review of the record discloses the veteran, as contended,
did experience a problem with recurrent sore throat and cold
symptoms during service, but service examiners attributed
these manifestations to various upper respiratory conditions,
not to sleep apnea.  Moreover, although the veteran did
experience nasopharyngeal reflux during service, a problem he
apparently identifies as "reflex," it should be noted that
nasopharyngeal reflux was attributed to enlargement of the
tonsils and to structural irregularities of the tongue and
nasal septum, not to sleep apnea.

The veteran's reported presenting symptoms of loud snoring,
episodic cessation of breathing, and a "choking" sensation
did, in fact, prompt some examiners to initially suspect
obstructive sleep apnea.  However, subsequently, after he was
evaluated in a sleep laboratory, and upon further physical
examination of nose, tongue and tonsils, service department
clinicians effectively ruled out sleep apnea as the cause of
his complex of symptoms involving loud snoring and episodic
cessation of breathing and a "choking" sensation.  The UPPP
that was performed in service was to correct irregularities
of the uvula, a structure in the throat, not, as contended,
to treat sleep apnea.

Another sleep study, performed by VA a few months after the
veteran left military service, ruled out sleep apnea as the
cause of the veteran's snoring.  The other claimed symptoms
of disordered breathing, the alleged episodic cessation of
breathing and "choking" sensation, were not documented
during the sleep study.

The Board is aware that the March 1999 VA ENT examiner listed
an initial diagnosis of sleep apnea, previously documented,
now status post UPPP, with persistent symptoms.  It should be
noted that the examiner did not report claims file review
and, rather, obtained a history of the veteran's respiratory
condition based on the veteran's self-report of symptoms.
Significantly, the veteran's history does not include
reference to the sleep study performed by VA.

The addendum note by the March 1999 VA ENT examiner indicates
that the results of the VA sleep study had been brought to
that clinician's attention.  Having been apprised of the
sleep study, the examiner revised the diagnosis, and now
attributed the veteran's subjective upper respiratory
symptoms to nasal regurgitation, a phenomenon, that in this
veteran's case, the examiner no longer identified as a
persisting symptom of sleep apnea.

Establishing service connection requires a finding of
existence of a current disability and a determination of a
relationship between the disability and an injury or disease
incurred in service or some other manifestation of a
disability during service.  See Cuevas v. Principi, 3 Vet.
App. 542 (1992).  Here, the evidence in its entirety does not
establish that the veteran now has sleep apnea that is
attributable to any event or occurrence of military service.

For the reasons discussed above, the claim for service
connection for sleep apnea must be denied.  In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine.  However, as the preponderance
of the evidence is against the appellant's claim, that
doctrine is not applicable in the current appeal.  38 C.F.R.
� 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  38
U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1991).

ORDER

Service connection for sleep apnea is denied.

____________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: U R POWELL

disposition: remanded

text:
Citation Nr: 0618000
Decision Date: 06/20/06    Archive Date: 06/27/06

DOCKET NO.  04-25 393	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for left carpal tunnel
syndrome.

2.  Entitlement to service connection for right carpal tunnel
syndrome.

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

4.  Entitlement to service connection for disability
manifested by pain in the cervical and the thoracic spine.

5.  Entitlement to service connection for low back pain.

6.  Entitlement to service connection for abdominal
hysterectomy with bilateral salpingo-oopherectomy.

7.  Entitlement to an increased rating for major depression
with panic disorder and agoraphobia, currently evaluated as
30 percent disabling.

REPRESENTATION

Appellant represented by:	Nevada Office of Veterans'
Services

ATTORNEY FOR THE BOARD

James R. Siegel, Counsel

INTRODUCTION

The veteran served on active duty from April 1973 to February
1993.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Regional Office (RO).
By rating action dated in May 2003, the RO denied the
veteran's claims for service connection for the disabilities
at issue, and confirmed and continued the 10 percent
evaluation then in effect for major depression.  Based on the
receipt of additional evidence, the RO, in an April 2005
rating decision, increased the evaluation assigned for major
depression to 30 percent.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the
appellant if further action is required.

REMAND

On her substantive appeal submitted in July 2004, the veteran
indicated that she wanted to testify before a Veterans Law
Judge of the Board at the Regional Office (RO).  Although
such a hearing was scheduled to be held in April 2006, the
veteran failed to report for the hearing.  However, a report
of contact form, dated prior to the hearing date, reflects
that the veteran requested that the hearing be rescheduled
since she was recovering from surgery.  There is no
indication in the record that the hearing has been
rescheduled.

Accordingly, the case is REMANDED for the following action:

The veteran should be scheduled for a
hearing at the Cleveland, Ohio RO before a
Veterans Law Judge sitting at the RO.

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

_________________________________________________
U. R. POWELL
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) (2005).


judge_norm: ROBERT E SULLIVAN

benefit: education

text:
Citation Nr: 0619000
Decision Date: 06/28/06    Archive Date: 07/07/06

DOCKET NO.  99-16 409	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUES

1.  Entitlement to service connection for the cause of the
veteran's death.

2.  Entitlement to dependent's educational assistance under
38 U.S.C. Chapter 35.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Kay Hudson, Counsel

INTRODUCTION

The veteran had active service from December 1961 to April
1970, and from August 1978 to April 1990.  He died in
September 1998, and the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a regional office (RO) rating decision
of May 1999.  In March 2000, the appellant appeared at a
hearing held at the RO before the undersigned (i.e., Travel
Board hearing).  In December 2000, the case was remanded to
the RO for additional development.

FINDINGS OF FACT

1.  The veteran died in September 1998, at the age of 54
years, of arteriosclerotic cardiovascular disease.

2.  Cardiovascular disease was of service onset.

3.  The veteran died of a service-connected disability.

CONCLUSIONS OF LAW

1.  Arteriosclerotic cardiovascular disease was incurred in
active military service.  38 U.S.C.A. �� 1101, 1110, 1112,
1113 (West 2002); 38 C.F.R. �� 3.303, 3.307, 3.309 (2005).

2.  Arteriosclerotic cardiovascular disease contributed
substantially and materially to cause the veteran's death.
38 U.S.C.A. � 1310 (West 2002); 38 C.F.R. �� 3.310, 3.312
(2002).

3.  The basic eligibility requirements for entitlement to
Dependents' Educational Assistance allowance under Chapter
35, Title 38, United States Code are met.  38 U.S.C.A. ��
3500, 3501(a)(1), 3510 (West 2002); 38 C.F.R. � 3.807,
21.3021 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In view of the favorable outcome of this appeal, compliance
with the Veterans Claims Assistance Act of 2000 (VCAA), Pub.
L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38
U.S.C.A. �� 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 &
Supp. 2005)) need not be discussed.

I.  Service connection for the cause of the veteran's death

The veteran's original claims folder was lost, and the file
does not appear to contain all of the service medical records
for his second period of service, ending in April 1990.
Under these circumstances, the Board has a heightened duty to
assist and obligation to explain its findings and
conclusions.  See Kowalski v. Nicholson, 19 Vet. App. 171
(2005); Cuevas v. Principi, 3 Vet.App.  542, 548 (1992);
O'Hare v. Derwinski, 1 Vet.App. 365 (1991).

To establish service connection for the cause of the
veteran's death, the evidence must show that a service-
connected disability was either the principal cause or a
contributory cause of death.  For a service-connected
disability to be the principal (primary) cause of death, it
must singly or with some other condition be the immediate or
underlying cause or be etiologically related.  For a service-
connected disability to constitute a contributory cause, it
must be shown that it contributed substantially or
materially; that it combined to cause death; that it aided or
lent assistance to the production of death.  It is not
sufficient to show that it casually shared in producing
death, but rather it must be shown that there was a causal
relationship.  38 U.S.C.A. � 1310; 38 C.F.R. � 3.312.

To establish service connection for the cause of the
veteran's death, the evidence must show that a service-
connected disability was either the principal cause or a
contributory cause of death.  38 U.S.C.A. � 1310; 38 C.F.R.
� 3.312.

According to the death certificate, the veteran died in
September 1998, at the age of 54 years.  The cause of death
was arteriosclerotic cardiovascular disease.  At the time of
his death, service connection was not in effect for any
disabilities.

The law provides that service connection may be established
for disability resulting from disease or injury incurred in
or aggravated by service.  38 U.S.C.A. � 1110; 38 C.F.R.
� 3.303.  In addition, service connection may be granted for
any disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service.  38 C.F.R. � 3.303(d).
Moreover, in the case of cardiovascular disease and peptic
ulcer disease, service connection may be granted if such
diseases are manifested in service, or manifested to a
compensable degree within one year following separation from
service.  38 U.S.C.A. �� 1101, 1112, 1113;
38 C.F.R. �� 3.307, 3.309.

Service connection may be established for chronic disability
resulting from disease or injury incurred in or aggravated by
service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.
Service connection may be granted on a presumptive basis for
certain chronic diseases, if the disability was manifested to
a compensable degree within one year of separation from
service.  38 U.S.C.A. �� 1110, 1112(a)(1), 1113, 1131, 1137;
38 C.F.R. �� 3.307(a)(3), 3.309(a).

The veteran had 20 years of active military service,
including service in Vietnam, and his awards include the
Bronze Star Medal.  He was discharged from active duty in
April 1990.

The available service medical records do not show
cardiovascular disease in service.  Although he had some
elevated blood pressure readings in 1982, a VA cardiology
opinion in October 2004 found that it was only labile
hypertension, and that it was less likely than not that these
symptoms were manifestations of later diagnosed hypertension.

However, in November 1991, nineteen months after his
discharge from service, he was hospitalized with an acute
inferior wall myocardial infarction.  He suffered another
myocardial infarction in December 1992, and he died in
September 1998 of arteriosclerotic cardiovascular disease.
Thus, the question for consideration is whether the
cardiovascular disease, first clinically shown by the
evidence of record in November 1991, was manifest to a
compensable degree within a year of service, i.e., April
1991.

Although there is no evidence pertaining to that period,
during the hospitalizations from November to December 1991,
following the myocardial infarction, the veteran underwent
cardiac catheterization, which disclosed an 80 percent mid-
lesion in the circumflex artery with left anterior
descending, and hypokinesis of the basilar part of the
inferior wall.  In December 1991, he underwent a successful
angioplasty.  However, in December 1992, he suffered another
myocardial infarction, and in July 1993, he was hospitalized
for symptoms thought to be congestive heart failure.  In
1998, he died of arteriosclerotic cardiovascular disease.
Thus, by the time the veteran suffered his first myocardial
infarction, at the age of 47 years, he already had occlusion
significant enough to warrant an angioplasty.  Nevertheless,
he suffered another myocardial infarction a year later.

In March 2006, the Board obtained an opinion from the VA's
Veterans Health Administration (VHA opinion).  According to
this opinion, provided by a cardiologist who reviewed the
veteran's claims file, elevated blood pressure readings shown
in service were not reflective of hypertension, as there was
no evidence of sustained elevation of blood pressure, or
treatment of hypertension.  However, the physician also noted
that the veteran suffered from an acute myocardial infarction
in November 1991, nineteen months after his discharge from
active duty.  The physician observed that coronary
atherosclerotic disease has a prolonged natural history with
periods of quiescence and rapid evolution, and concluded that
it was at least as likely as not that the veteran suffered
from cardiovascular disease while in service or within a year
of discharge.

In view of these factors, the Board finds that the evidence
is at least evenly balanced as to whether cardiovascular
disease was of service onset, and as the evidence clearly
shows that cardiovascular disease was the cause of death,
service connection for the cause of the veteran's death is
warranted.  The benefit-of-the-doubt rule has been applied in
reaching this decision.  38 U.S.C. � 5107(b); see Ortiz v.
Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

II.  Eligibility for Educational Assistance under 38 U.S.C.
Chapter 35

For the purposes of dependents' educational assistance under
38 U.S.C. chapter 35 (see � 21.3020), the child, spouse or
surviving spouse of a veteran will have basic eligibility if
certain conditions are met, including, that a permanent total
service-connected disability have been in existence at the
date of the veteran's death, or that the veteran died as a
result of a service-connected disability.  38 C.F.R. �
3.807(a) (2005).  As discussed above, this decision has
resulted in the grant of service connection for the cause of
the veteran's death.  Accordingly, as a matter of law,
entitlement to dependents' educational assistance under 38
U.S.C. chapter 35 is established.

ORDER

Service connection for the cause of the veteran's death is
granted, subject to regulations governing the payment of
monetary benefits.

Eligibility for dependents' educational assistance under 38
U.S.C. chapter 35 is granted, subject to regulations
governing the payment of monetary benefits.

____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: VITO A CLEMENTI

text:
Citation Nr: 0621000
Decision Date: 07/18/06    Archive Date: 07/26/06

DOCKET NO.  04-22 631	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased evaluation for residuals of a
left knee injury (total arthroplasty), currently evaluated as
30 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

H. Seesel, Associate Counsel

INTRODUCTION

The veteran had active service from November 1972 until
November 1976.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a June 2003 Rating Decision from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana.

The Board first considered this appeal in December 2004 and
remanded the claim for additional development.  The
RO/Appeals Management Center (AMC) completed all requested
development, but continued the denial of benefits sought.  In
the course of the directed development of the claim,
additional evidence was received indicating that the veteran
underwent total left knee arthroplasty.  A review of these
records reveals further relevant medical records have not
been obtained.  Thus, because VA is obligated to make
reasonable efforts to obtain relevant evidence to
substantiate the veteran's claim under 38 U.S.C.A �  5103A,
this matter is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify you if
further action is required on your part.

REMAND

A preliminary review of the record reveals further
development is necessary.  By way of history, service
connection for a left knee injury was granted by May 1997
rating decision.  A 10 percent disability rating evaluation
was assigned under Diagnostic Code 5257.  The veteran applied
for an increased evaluation in October 2002 indicating his
disability had increased in severity.  During the pendency of
the appeal, the veteran provided records reflecting he had a
total left knee arthroplasty in December 2004.  However,
these records were incomplete and demonstrated additional
medical records concerning the left knee disability have not
been obtained.

The RO considered this evidence and subsequently granted a
temporary total evaluation for a one year period after a
total arthroplasty surgery and an increased rating evaluation
of 30 percent after the temporary total evaluation, effective
February 1, 2006.  Although the claim has been partially
granted, applicable law mandates that when an appellant seeks
an increased rating, it will generally be presumed that the
maximum benefit allowed by law and regulation is sought, and
it follows that such a claim remains in controversy where
less than the maximum benefit available is awarded. See A.B.
v. Brown, 6 Vet. App. 35 (1993).  As such, the veteran's
claim for an increased evaluation remains in appeal and can
be interpreted as twofold:  1) the veteran seeks an
evaluation in excess of 30 percent from October 2002 until
the date of his left knee replacement surgery in December
2004 and 2) the veteran seeks an evaluation in excess of 30
percent after February 1, 2006.

The records the veteran provided included the operative
report, an x-ray in December 2004 prior to the operation, an
x-ray in July 2005, and page two of a treatment record from
Robert Crous, MD dated in November 2004.  Page one of this
report is not associated with the claims file.  Page two
indicates the x-rays showed osteophyte formation and provided
an assessment of a very degenerative knee requiring total
knee arthroplasty.

Additionally, the veteran provided a signed medical
authorization dated in July 2005 for the medical records of
Dr. Crous and reported Dr. Crous replaced his left knee and
performed follow up visits.  Signed medical authorizations
for other providers were also submitted.  However, there is
no indication the RO requested these records.

Because a claim for an increased evaluation depends on the
present level of the disability, records from the time period
directly before the surgery, such as the complete November
2004 report of Dr. Crous is highly relevant and should be
obtained.  Follow up records after the surgery, particularly
those after the end of the temporary total evaluation rating
in February 2006, are also relevant for rating purposes and
should be obtained.

Accordingly, this case is REMANDED for the following action:

The RO should contact the veteran and ask
him to specify all medical care providers
who treated him for his left knee
disability directly prior to his December
2004 surgery and for follow up treatment
subsequent to the December 2004 surgery.
The RO/AMC should then obtain and
associate with the claims file any
records identified by the veteran that
are not already associated with the
claims file.  The RO should be sure to
obtain the treatment records for Robert
Crous, M.D.

When the development requested has been completed, the case
should again be reviewed by the RO/AMC on the basis of the
additional evidence.  If the benefit sought is not granted,
the veteran and his representative should be furnished a
Supplemental Statement of the Case, and be afforded a
reasonable opportunity to respond before the record is
returned to the Board for further review.

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

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2005).

____________________________________________
VITO A. CLEMENTI
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) (2005).


judge_norm: GEORGE E GUIDO JR

benefit: pension

benefit: overpayment

text: This claim must be afforded expeditious treatment. 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).

text:
Citation Nr: 0622000
Decision Date: 07/25/06    Archive Date: 08/10/06

DOCKET NO.  03-15 059A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma

THE ISSUE

Whether the request for a waiver of recovery of the
overpayment of Department of Veterans Affairs (VA) pension
benefits in the amount of $42,071.00 was timely filed.

REPRESENTATION

Appellant represented by:	Oklahoma Department of
Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Rose, Counsel
INTRODUCTION

The veteran, who is the appellant, served on active duty from
December 1974 to April 1977.

This matter is before the Board of Veterans' Appeals (Board)
on appeal of a February 2003 decision of a Committee on
Waivers and Compromises (Committee) of a Department of
Veterans Affairs (VA) Regional Office (RO).

As the Board finds that the veteran's request for waiver was
timely, the question of   whether the waiver for recovery of
the overpayment is precluded based on a showing of fraud,
misrepresentation or bad faith, or whether it the recovery
should be considered under the principles of equity and good
conscience has not been adjudicated by Committee and this
aspect of the appeal is remanded to the Committee.

FINDING OF FACT

In July 2002, VA first notified the veteran of the exact
amount of the overpayment of VA pension benefits in amount of
$42, 071.00; the veteran submitted a request for waiver of
recovery of the overpayment in October 2002 within 180 days
of the notice.

CONCLUSION OF LAW

The veteran's request for waiver of recovery of overpayment
of VA pension benefits in the amount of $42,071.00 was timely
filed.  38 U.S.C.A. � 5302 (West Supp. 2005); 38 C.F.R.
�1.963 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) is not
applicable to cases involving waiver of indebtedness.  Barger
v. Principi, 16 Vet. App. 132 (2002).

In October 2002, the veteran filed a claim requesting a
waiver of recovery of the overpayment of VA pension benefits
in the amount of $42,071.00.

In the February 2003 determination by the Committee, the
Committee denied the request for waiver, finding that that
the veteran's request was untimely.  The veteran appealed
this determination.

The threshold question presented is whether the request for
waiver of recovery of the overpayment of VA pension benefits
in the amount of $42,071.00 was timely filed.

A request for waiver of indebtedness will only be considered
if the request is made within 180 days following the date of
a notice of the indebtedness by VA to the debtor.  38
U.S.C.A. � 5302(a); 38 C.F.R. � 1.963(b).

The record shows that the first notice of an overpayment of
VA pension benefits was in October 1997.  Letters were
subsequently sent in August 1998, January 1999, July 1999,
September 1999, February 1999, September 1999, May 2000, July
2000, and December 2000.  Each notice informed the veteran
that adjustments to his VA pension benefits because of
unreported income would result in an overpayment of benefits
and that he would be notified of the exact amount of the
overpayment and given information about repayment.  While the
notices explained to the veteran his right to appeal to the
Board within one year from the date of the notice, none of
the notices informed the veteran that he had 180 days from
the date of the notice in which to request a waiver of
recovery of the debt.  It was not until July 2002, when VA
issued a delinquency notice to the veteran that he was
properly informed of the exact amount of the overpayment,
$42,071.00.  In October 2002, the filed a request of relief
of the debt, which was timely filed as it was received within
180 days of the July 2002 notice.

In absence of notice of the exact amount of the overpayment
and of the 180 days for filing a request for a waiver, the
previous notices from 1997 to 2000 were deficient and the 180
day time limit for filing a request began with the July 2002
notice and the record shows that the veteran timely filed his
request for relief of the debt. Under the facts of the
record, the Board concludes that the veteran's request for
waiver of recovery of the overpayment of VA pension benefits
was timely received.  38 U.S.C.A. � 5302(a); 38 C.F.R. �
1.963(b).

ORDER

A request for a waiver of recovery of overpayment of VA
pension benefits in the amount of $42,071.00 was timely filed
and to this extent only the appeal is granted.

REMAND

As is has been determined that the veteran filed a timely
request for waiver of recovery of the overpayment, the merits
of the request must be addressed by the Committee.
Accordingly, this case is REMANDED for the following action:

The Committee on Waivers and Compromises should
review the merits of the veteran's request for
waiver of recovery of the overpayment.  If the
decision is adverse to the veteran, he should be
provided a supplemental statement of the case and
the case should be returned to the Board.

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

This claim must be afforded expeditious treatment.  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 Act of 2003, Pub. L. No. 108-183, �
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. �� 5109B, 7112).

____________________________________________
GEORGE E. GUIDO JR
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs