judge_norm: BRUCE KANNEE

benefit: tdiu

text:
Citation Nr: 9829000
Decision Date: 09/28/98    Archive Date: 10/01/98

DOCKET NO.  94-01 184	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a total disability rating based on individual
unemployability (TRIU) due to a service-connected disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L. Helinski, Associate Counsel

INTRODUCTION

The veteran had active military service from September 1973
to August 1975.

This matter comes before the Board of Veterans� Appeals (BVA
or Board) on appeal from a July 1973 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO),
which had confirmed a 20 percent evaluation for the veteran�s
back disorder.  During the pendency of that appeal, in a
January 1994 hearing before the undersigned Member of the
Board, the veteran raised an issue of entitlement to TRIU.
In November 1995 and July 1997, this appeal was previously
before the Board and remanded for further development.  The
requested development has been completed, and the case is now
ready for appellate review.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that he is unemployable as a
result of his service-connected lumbosacral strain disability
with traumatic arthritis.  Therefore, a favorable
determination is requested.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against assignment of a claim for a total
disability rating based on individual unemployability, due to
a service-connected disability.

FINDINGS OF FACT

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

2.  Service connection is presently in effect for lumbosacral
strain with traumatic arthritis, which is evaluated as 20
percent disabling; there are no other service-connected
disabilities.

3.  The veteran completed high school, as well as one and a
half years of college; his training and occupational
background is in welding and auto mechanics.

4.  The veteran�s service-connected lumbosacral strain
disability does not preclude him from obtaining and retaining
all forms of substantially gainful employment.

CONCLUSION OF LAW

The criteria for a total disability rating based on
individual unemployability due to a service-connected
disability has not been met.  38 U.S.C.A. � 5107 (West 1991);
38 C.F.R. �� 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board notes that this issue was
previously before the Board and remanded in July 1997 for
additional development, which included obtaining the
veteran�s social security records.  The requested development
has been completed, and the case is now ready for appellate
disposition.

The Board finds that the veteran�s claim for a total rating
based on individual unemployability (TRIU) due to a service-
connected disability is �well grounded� within the meaning
of 38 U.S.C.A. � 5107(a).  See Murphy v. Derwinski, 1 Vet.
App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990).  That is, the Board finds that the veteran has
presented a claim that is not implausible when his
contentions and the evidence of record are viewed in the
light most favorable to his claim.  The Board also is
satisfied that all the facts relevant to this claim have been
properly and sufficiently developed.

In order to establish service connection for a total rating
based upon individual unemployability due to service-
connected disabilities, there must be an impairment so severe
that it is impossible for the average person to follow a
substantially gainful occupation.  See 38 U.S.C.A. � 1155;
38 C.F.R. �� 3.340, 3.341, 4.16.  In reaching such a
determination, the central inquiry is �whether the veteran�s
service connected disabilities alone are of sufficient
severity to produce unemployability.�  Hatlestad v. Brown, 5
Vet. App. 524, 529 (1993).  Consideration may be given to the
veteran�s level of education, special training, and previous
work experience in arriving at a conclusion, but not to his
age or to the impairment caused by nonservice-connected
disabilities.  See 38 C.F.R. �� 3.341, 4.16, 4.19.

VA regulations establish objective and subjective standards
for an award of total rating based on unemployability.  When
the veteran�s schedular rating is less than total (for a
single or combination of disabilities), a total rating may
nonetheless be assigned when there are two or more
disabilities, at least one disability is ratable at 40
percent or more, and any additional disabilities result in a
combined rating of 70 percent or more, and the disabled
person is unable to secure or follow a substantially gainful
occupation.  See 38 C.F.R. � 4.16(a).  A total disability
rating may also be assigned on an extra-schedular basis,
pursuant to the procedures set forth in 38 C.F.R. � 4.16(b),
for veterans who are unemployable by reason of service-
connected disabilities, but who fail to meet the percentage
standards set forth in section 4.16(a).

Service connection presently is in effect for lumbosacral
strain with traumatic arthritis, which is evaluated as 20
percent disabling; there are no other service-connected
disabilities.

Initially, the Board notes that as the veteran�s total
disability rating is 20 percent, he does not meet the
percentage requirements for entitlement to TRIU under
38 C.F.R. � 4.16(a).  Thus, the Board will consider whether a
TRIU may be warranted on an extra-schedular basis, pursuant
to 38 C.F.R. � 4.16(b), for veterans who are unemployable due
to service-connected disabilities.  In making such a
determination, the Board will consider the veteran�s service-
connected disability, his employment history, his educational
and vocational attainment, and any other factors bearing on
the issue.  See 38 C.F.R. � 4.16(b).

As already noted, the veteran currently has a back
disability, rated at 20 percent.  In January 1994, the
veteran appeared at a hearing before the undersigned Member
of the Board, and testified that he finished high school, and
also had one-and-a-half years of college education.  He
stated that he had past training and work experience as a
welder and an auto mechanic.  He indicated that he had been
taking an auto mechanics course in college, but he was unable
to finish due to his back condition.  He also indicated that
he was receiving social security disability benefits.  The
veteran�s claims file contains several statements from him in
which he indicates that he is unable to work because of his
back disability.  The record also indicates that the veteran
stopped working approximately in the mid-1980�s.

In a December 1995 VA examination report, the veteran was
diagnosed with a history of low back trauma, but there was
nonspecific pathology with arthralgia and suggestion of a
neurological pattern to account for asymmetry of the lower
extremities.  The examiner stated that �in [his] opinion,
the functional limitation of [the veteran] is based more on
subjective than objective impairment and he states he can�t
get a real job.�

Following the July 1997 BVA remand, the veteran�s social
security records were obtained and associated with his claims
folder.  Many of those records were duplicative of records
already in his claims file.  It appears that in a September
1985 decision, the veteran was determined to be disabled
under the Social Security Act.  Such a decision was based on
the veteran�s overall disability picture, which included his
service-connected lumbosacral strain disability, and a
nonservice-connected cervical spine disorder, which was
incurred in an automobile accident in approximately May 1984.
There are private medical records dated in 1985, which
indicate that the veteran�s neck disorder would interfere
with his employability, but the record is silent for any
specific medical statement regarding the effect of the
veteran�s lumbosacral strain disability on his employability.

In light of the foregoing, the Board finds no basis to grant
the veteran�s claim for TRIU based on his service-connected
lumbosacral strain disability.  The Board acknowledges that
the veteran is disabled for social security purposes, but
those decisions, though helpful, are not controlling on
decisions by the VA.  See Murincsak v. Derwinski, 2 Vet. App.
363 (1992).  Additionally, the Board notes that the veteran�s
social security disability determination appears to have been
based on disabilities in addition to the veteran�s service-
connected lumbosacral strain disability.  As noted earlier,
TRIU laws and regulations do not contemplate nonservice-
connected disabilities.  Furthermore, the Board finds not
evidence of record that the veteran�s service-connected
lumbosacral strain disability precludes all forms of
substantially gainful employment, consistent with his
educational and vocational history.  In that regard, there is
no such statement by a medical professional, or any other
evidence to that effect.  Hence, there is no objective
evidence of record indicating that the veteran would be
unable to obtain or retain substantially gainful employment.
In the absence of any objective evidence that the veteran�s
service-connected disability renders him unemployable, the
Board finds that assignment of a total rating based
individual unemployability due to a service-connected
disability is not warranted.

The Board has considered the applicability of the doctrine of
reasonable doubt under 38 U.S.C.A. � 5107(b) in connection
with the veteran�s claim for a total rating; however, as the
preponderance of the evidence is against the claim, that
doctrine is inapplicable.  See Gilbert, 1 Vet. App. at 55-56.

ORDER

A total rating based on individual unemployability due to
service-connected disabilities is denied.

	BRUCE KANNEE
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

- 2 -


series: legacy

judge_norm: ANDREW J MULLEN

judge_role: Member, Board of Veterans' Appeals

disposition: denied

condition: psychiatric

text:
Citation Nr: 9830000
Decision Date: 10/07/98    Archive Date: 10/13/98

DOCKET NO.  95-16 829A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts

THE ISSUE

Entitlement to service connection for an acquired psychiatric
disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Richard Giannecchini,  Associate Counsel

INTRODUCTION

The veteran had active military service from October 1987 to
January 1989.

A perfected appeal to the Board of Veterans� Appeals (Board)
of a particular decision entered by a Department of Veterans
Affairs (VA) regional office (RO) consists of a Notice of
Disagreement (NOD) in writing received within one year of the
decision being appealed and, after a Statement of the Case
(SOC) has been furnished, a substantive appeal (VA Form 9)
received within 60 days of the issuance of the Statement of
the Case or within the remainder of the one-year period
following notification of the decision being appealed.  The
present appeal arises from a March 1995 rating decision in
which the RO denied the veteran�s claim of service connection
for an acquired psychiatric disorder.  An NOD was filed that
same month, and an SOC issued in May 1995.  The veteran filed
a substantive appeal in June 1995.  In September 1995, the
veteran testified before a hearing officer at the VARO in
Boston.  Supplemental SOCs were issued in September 1995 and
April 1996.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that, while on active
service, he became chronically depressed, and that depression
has continued post service, causing ongoing occupational and
social impairment.  In particular, the veteran contends that
he is homeless, unemployed, and has difficulty interacting
with people.  Therefore, the veteran asserts, his condition
warrants disability compensation.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), has reviewed and considered
the pertinent evidence and material of record in the
veteran's claims file.  Based on its review of the relevant
evidence in this matter, and for the following reasons and
bases, it is the decision of the Board that the veteran has
not met the initial burden of submitting evidence sufficient
to establish that the claim of service connection for an
acquired psychiatric disorder is well grounded.

FINDINGS OF FACT

The veteran�s assertion that an acquired psychiatric disorder
had its onset in service is not supported by any medical
evidence that would render the claim for service connection
for that disability plausible under the law.

CONCLUSION OF LAW

The veteran has not submitted a well-grounded claim for an
acquired psychiatric disorder.  38 U.S.C.A. � 5107(a) (West
1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Basis

A review of the claims file reflects that, in March 1987, the
veteran underwent a medical examination for purposes of
enlistment in the U.S. Air Force.  In the Report of Medical
History, and the Report of Medical Examination, no findings
or diagnoses indicative of a psychiatric disorder were noted,
and the veteran was found qualified for service.

In January 1989, the veteran was examined for purposes of
separating from active service.  In the Report of Medical
History, he checked �yes� when asked if he, at that time or
in the past, suffered from depression or excessive worry,
and/or nervous trouble.  In box #25, the examiner noted the
veteran�s reports of excessive worry since 1987, that such
worry was stress related, and that no treatment had been
sought.  The examiner also noted that the nervous trouble
referred to excessive worry, and that the veteran denied any
personal or family history of psychosis.

Following his discharge from active service, the veteran
filed a claim of entitlement to service connection in October
1994.  In his VA Form 21-526, Veteran�s Applica-tion for
Compensation or Pension, he noted, in box #17, Nature and
History of Disabilities, �N/P condition, 12/88, McConnell
AFB chaplain.�  With his application, the veteran submitted
a treatment plan, dated in September 1994, from Boston
Community Services.  The treatment plain noted the veteran�s
treatment for chronic depression.  It also noted that the
veteran suffered from a lack of energy and low self-esteem,
had a history of alcohol abuse, and was unable to complete
tasks or hold a job.

In a March 1995 rating decision, the RO denied the veteran�s
claim of service connection for an acquired psychiatric
disorder.

In September 1995, the veteran testified before a hearing
officer at the VARO in Boston.  Under questioning from both
his service representative and the hearing officer, the
veteran stated that he first began having problems with
depression during basic training.  He stated that, later,
after basic training, he became frustrated and lost his self
confidence while training for his military occupational
specialty (MOS).  He testified that he discussed this with
his supervisor, but the supervisor was not interested in his
problems, and additional discussions with a chaplain were
also not helpful.  In addition, the veteran reported that,
following his separation from active service, he had sought
treatment for his depression at a VA medical facility but had
been turned away.  Furthermore, the veteran stated that he
was currently homeless, unemployed, and undergoing drug
therapy for his depression.  He also indicated that he had a
claim for benefits pending with the Social Security
Administration.

In a September 1995 Hearing Officer�s Decision/Supplemental
SOC, the veteran�s claim of service connection for an
acquired psychiatric disorder remained disallowed.

In April 1996, the veteran was medically examined for VA
purposes.  The examiner noted that the veteran was currently
being treated on an outpatient basis for his depression, but
had not been treated in service.  The veteran reported using
cocaine and alcohol, feeling suicidal at times, and
depressed.  He also complained of frustration and anger,
memory lapses, sleep disturbances, and hallucinations of
people talking behind his back.  On examination, the veteran
was found to be unable to tolerate stress, chronically
fatigued, and suffering from hallucinations.  He was also
found to be oriented in all three spheres, and in need of
long-term psychiatric care.  The examiner�s diagnosis
included severe schizophrenia, schizoaffective type, with
suicidal and homicidal ideations; alcohol dependence;
marijuana dependence; and cocaine dependency in current
remission.

II.  Analysis

With regard to the veteran�s appeal, the threshold question
to be answered is whether he has presented a well-grounded
claim.  38 U.S.C.A. � 5107 (West 1991); Gilbert v. Derwinski,
1 Vet.App. 49 (1990).  If he has not, the claim must fail and
there is no further duty to assist in its development.
38 U.S.C.A. � 5107; Murphy v. Derwinski, 1 Vet.App. 78
(1990).  This requirement has been reaffirmed by the United
States Court of Appeals for the Federal Circuit in its
decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir.
1997).  That decision upheld the earlier decision of the
United States Court of Veterans Appeals, which made clear
that it would be error for the Board to proceed to the merits
of a claim which is not well grounded.  Epps v. Brown, 9
Vet.App. 341 (1996).

The Court of Veterans Appeals has also held that, in order to
establish that a claim for service connection is well
grounded, there must be competent evidence of:
(1) a current disability (a medical diagnosis); (2) the
incurrence or aggravation of a disease or injury in service
(lay or medical evidence); and (3) a nexus (that is, a
connection or link) between the in-service injury or
aggravation and the current disability.  Competent medical
evidence is required to satisfy this third prong. Caluza v.
Brown, 7 Vet.App. 498 (1995), aff�d per curiam, 78 F.3d 604
(Fed. Cir. 1996) (table).  �Although the claim need not be
conclusive, the statute [38 U.S.C.A. �5107] provides that
[the claim] must be accompanied by evidence� in order to be
considered well grounded.  Tirpak v. Derwinski, 2 Vet.App.
609, 611 (1992).  In a claim of service connection, this
generally means that evidence must be presented which in some
fashion links the current disability to a period of military
service or to an already service-connected disability.
38 U.S.C.A. � 1110 (West 1991); 38 C.F.R. � 3.303 (1998);
Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery
v. Brown, 4 Vet.App. 343 (1993).

Evidence submitted in support of the claim is presumed to be
true for purposes of determining whether it is well grounded.
King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of
medical diagnosis or causation, however, do not constitute
competent evidence sufficient to render a claim well
grounded. Grottveit v. Brown, 5 Vet.App. 91, 93(1992);
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).
Under applicable criteria, service connection may be granted
for a disability resulting from disease or injury which was
incurred in, or aggravated by, service.  38 U.S.C.A. �� 1110,
1131 (West 1991 & Supp. 1995).  To establish a showing of
chronic disease in service, there is required a combination
of manifestations sufficient to identify the disease entity,
and sufficient observation to establish chronicity at the
time.  38 C.F.R. � 3.303(b) (1998).  If chronicity in service
is not established, a showing of continuity of symptoms after
discharge is required to support the claim.  Id.  Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service.  38 C.F.R. � 3.303(d)
(1998).

In regard to the veteran�s contention that he currently
suffers from a service-connected acquired psychiatric
disorder, the Board finds that the veteran�s claim is not
well grounded.  We note that, while the veteran complained of
nervousness and depression during his separation examination,
his service medical records are silent as to any complaint,
finding, or diagnosis of a psychiatric disorder.  In
addition, the record indicates that the first documented
medical treatment of the veteran�s psychiatric disorder was
at the Boston Community Services in September 1994, five
years following his separation from service, and no medical
opinion is of record from that facility (or any other source)
linking the veteran�s current complaints of depression with
any in-service disease, injury, or aggravation of any
preexisting disease or injury.  Furthermore, in April 1996, a
VA medical examiner diagnosed the veteran with severe
schizophrenia, in addition to substance abuse, but did not
link the veteran�s current disorder to any injury or
aggravation in service.

The veteran has been very specific in asserting that his
acquired psychiatric disorder resulted from active service.
While the Board does not doubt the sincerity of the veteran�s
contentions in this regard, and his belief  that he suffers
from a service-related psychiatric disorder, our decision
must be based on competent medical testimony or
documentation.  In a claim of service connection, this
generally means that medical evidence must establish that a
current disability exists, and that the disability is related
to a period of active military service.  Competent medical
evidence has not been presented satisfying these
requirements.  38 U.S.C.A. � 1110 (West 1991); 38 C.F.R.
� 3.303 (1996); Rabideau v. Derwinski, Montgomery v. Brown,
both supra.  In addition, the veteran does not meet the
burden of presenting evidence of a well-grounded claim merely
by presenting his own testimony because, as a lay person, he
is not competent to offer medical opinions.  See Bostain v.
West, 11 Vet.App. 124 (1998), citing Espiritu, supra.  See
also Carbino v. Gober, 10 Vet. App. 507, 510 (1997).

The Board also notes that, during his personal hearing, the
veteran testified that he had a claim pending with the Social
Security Administration (SSA).  He indicated that the claim
was still under review, since he had not yet been examined by
an SSA medical examiner.  We are aware that, "[w]hen VA is
put on notice prior to the issuance of a final decision of
the possible existence of certain records and their
relevance, the BVA must seek to obtain those records."  Hayes
v. Brown, 9 Vet. App. 67, 73-74 (1996) (quoting Murincsak v.
Derwinski, 2 Vet.App. 363, 373 (1992)), Baker v. West, 11
Vet.App. 163, 169(1998).  The cited cases involved issues as
to whether the veterans, in the then current claims, were
totally disabled or warranted an increased rating for already
service-connected disabilities.  Here, however, the issue is
service connection, and the Board sees no indication in the
record that an SSA determination as to whether the veteran is
currently disabled for the purpose of entitlement to SSA
benefits would cast any light on the incurrence or
aggravation of a psychiatric disorder in service.

Under the law, the veteran is free, at any time in the
future, to submit new and material evidence to reopen his
claim for an acquired psychiatric disorder, regardless of the
fact that he currently is not shown to be suffering from a
disability that may be service-connected.  Such evidence
would need to show, through competent medical evidence, a
current disability, and that such disability �resulted from
a disease or injury which was incurred in or aggravated by
service.�  38 U.S.C.A. � 1110 (West 1991); 38 C.F.R. � 3.303
(1997); Rabideau, Montgomery, supra.

The Board concludes, therefore, that the veteran has not met
the initial burden of presenting evidence of a well-grounded
claim for service connection for an acquired psychiatric
disorder, under the applicable law as interpreted in the
Caluza precedent.  In absence of a well-grounded claim, there
is no duty to assist the veteran further in the development
of it, and the Board does not have jurisdiction to adjudicate
it.  Boeck v. Brown, 6 Vet.App. 14 (1993); Grivois v. Brown,
5 Vet.App. 136 (1994).  Accordingly, as a claim that is not
well grounded does not present a question of fact or law over
which the Board has jurisdiction, the claim for service
connection for an acquired psychiatric disorder must be
denied.  See Epps v. Gober, supra.

ORDER

Entitlement to service connection for an acquired psychiatric
disorder is denied.

	ANDREW J. MULLEN
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

- 2 -


judge_norm: ROBERT E SULLIVAN

disposition: remanded

text: This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases

text:
Citation Nr: 9832000
Decision Date: 10/28/98    Archive Date: 11/02/98

DOCKET NO.  92-04 552	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for a right renal mass
due to exposure to ionizing radiation in service.

2.  Entitlement to service connection for multiple polypoid
adenomas of the colon due to exposure to ionizing radiation
in service.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

D. Dean

INTRODUCTION

The appellant served in the U.S. Coast Guard from September
1943 to March 1946.

This matter comes before the Board of Veterans� Appeals
(Board) on appeal from rating determinations by the St.
Petersburg Regional Office (RO) of the Department of Veterans
Affairs (VA).  The case was last before the Board in
September 1995, when it was remanded to the RO for further
development.  A complete procedural history of this appeal
was given at that time, which is incorporated by reference.

By rating action dated in November 1996, entitlement to
service connection for hypertension and/or a rapid heartbeat
due to exposure to ionizing radiation in service was denied
by the RO.  The appellant was informed of this decision and
of his appellate rights, but the record currently before the
Board indicates that he did not file a timely notice of
disagreement with that determination.

REMAND

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans� Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans� Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA�s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

The Board observes in connection with this case that the U.S.
Court of Veterans Affairs (Court) has held that a remand by
the Board confers on the veteran or other claimant, as a
matter of law, the right to compliance with the remand order
and it imposes on VA a concomitant duty to ensure compliance
with the terms of the remand.  Stegall v. West, 11 Vet. App.
268 (1998).

The appellant contends that a right renal mass which resulted
in the surgical removal of his right kidney in 1971, as well
as multiple colon polyps, were directly caused by his
exposure to ionizing radiation while participating in the
occupation of Nagasaki at the end of World War II.

In two medical opinions dated in July 1997, VA's Chief Public
Health and Environmental Hazards Officer stated that the
veteran's reconstructed accumulated ionizing radiation dosage
of less than one rem during service was most likely
insufficient to have caused his right renal mass (which does
not appear to have been malignant or necessarily even
premalignant) or his multiple colon polyps.  Unfortunately,
however, this medical opinion does not specifically enumerate
and discuss all six of the factors set forth at 38 C.F.R.
� 3.311(e) (1998). Since July 16, 1998, this has been an
essential procedural and substantive requirement for such
medical opinions.  Hilkert v. West, 11 Vet. App. 284 (1998).
Accordingly, the Board has no alternative than to once again
remand this appeal for the following further actions:

1.  The RO should once again refer this
case pursuant to 38 C.F.R. � 3.311
through the Director of the Compensation
and Pension (C&P) Service to the Under
Secretary for Health for the preparation
of an advisory medical opinion.  Both the
referral and the medical opinion, as well
as any subsequent memo by the C&P
Service, must specifically enumerate and
discuss each of the six factors set forth
at 38 C.F.R. � 3.311(e).  See Hilkert,
id.

2.  The RO should then review all of the
relevant evidence and readjudicate the
appellant's present claim.  The RO must
also specifically enumerate and consider
all six of the factors set forth at
38 C.F.R. � 3.311(e).

If the benefits sought are not granted, the appellant and his
representative should be furnished an appropriate
supplemental statement of the case and provided an
opportunity to respond.  In accordance with proper appellate
procedures, the case should then be returned to the Board for
further appellate consideration.

	ROBERT E. SULLIVAN
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1997).

- 2 -


judge_norm: CHARLES E HOGEBOOM

disposition: granted

condition: respiratory

text:
Citation Nr: 9833000
Decision Date: 11/06/98    Archive Date: 11/17/98

DOCKET NO.  95-40 008	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois

THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for hearing loss.

3.  Entitlement to service connection for a back disorder.

4.  Entitlement to service connection for a right leg
disorder.

5.  Entitlement to service connection for a respiratory
disorder.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L. J. Nottle, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1987 to
September 1992.

This matter comes before the Board of Veterans� Appeals
(Board) on appeal from a December 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Chicago, Illinois (RO).

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he is entitled to service
connection for tinnitus, hearing loss, and back, right leg
and respiratory disorders because they developed as a result
of activities engaged in during active service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran�s
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claims of
entitlement to service connection for tinnitus, hearing loss,
a back disorder, and a right leg disorder are well grounded.
It also is the decision of the Board that the evidence
supports a grant of service connection for rhinitis.

FINDINGS OF FACT

1.  There is no competent medical evidence that the veteran
currently has hearing loss or a right leg disorder.

2.  There is no competent medical evidence linking the
veteran�s tinnitus or low back disorder to his period of
active service.

3.  The veteran�s chronic rhinitis first manifested in
service.

CONCLUSIONS OF LAW

1.  The claim of entitlement to service connection for
tinnitus is not well grounded.  38 U.S.C.A. � 5107(a) (West
1991).

2.  The claim of entitlement to service connection for
hearing loss is not well grounded.  38 U.S.C.A. � 5107(a)
(West 1991).

3.  The claim of entitlement to service connection for a back
disorder is not well grounded.  38 U.S.C.A. � 5107(a) (West
1991).

4.  The claim of entitlement to service connection for a
right leg disorder is not well grounded.  38 U.S.C.A. �
5107(a) (West 1991).

5.  Rhinitis was incurred during active service.  38 U.S.C.A.
�� 1110, 1131, 5107 (West 1991); 38 C.F.R. �� 3.102, 3.303
(1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran contends that he is entitled to service
connection for tinnitus, hearing loss, and back, right leg
and respiratory disorders because they developed as a result
of activities engaged in during active service.  The
preliminary question before the Board, however, is whether
the veteran has presented well-grounded claims for service
connection.  The veteran has the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that a claim is well grounded.  A well-
grounded claim is a plausible claim, one which is meritorious
on its own or capable of substantiation.  See 38 U.S.C.A. �
5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140
(1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).  In
the absence of evidence of a well-grounded claim, there is no
duty to assist the veteran in developing the facts pertinent
to his claim, and the claim must fail.  Epps v. Gober, 126
F.3d 1464, 1467-1468 (Fed. Cir. 1997).

To establish that a claim for service connection is well
grounded, the record must include lay or medical evidence,
whichever is appropriate in the particular case,
demonstrating that a disease or injury was incurred or
aggravated during active service, and medical evidence
showing that the veteran currently has a disability, and that
a nexus exists between that disability and the in-service
injury or disease.  Id. at 1467-1468.

Alternatively, a claimant may establish a well-grounded claim
for service connection under the chronicity provision of
38 C.F.R. � 3.303(b) (1998), which is applicable where
evidence, regardless of its date, shows that an appellant had
a chronic condition in service or during an applicable
presumption period, and that that same condition currently
exists.  Such evidence must be medical unless the condition
at issue is a type as to which, under case law, lay
observation is considered competent to demonstrate its
existence.  If the chronicity provision is not applicable, a
claim still may be well grounded pursuant to the same
regulation if the evidence shows that the condition was
observed during service or any applicable presumption period
and continuity of symptomatology was demonstrated thereafter,
and includes competent evidence relating the current
condition to that symptomatology.  Savage v. Gober, 10 Vet.
App. 488, 495-98 (1997).

A.  Tinnitus

Service medical records show that the veteran did not
complain of or receive treatment for tinnitus during active
service.  On separation examination in July 1992, the veteran
did not report tinnitus and the examining physician noted
that the veteran�s ears were normal.

During a VA audio examination in March 1993, the veteran
reported that he first noticed tinnitus in 1991, and that he
had been exposed to gunner and transport noise during his
military service.  The examiner noted that the veteran worked
around heavy equipment while in the service, and diagnosed
intermittent tinnitus over the past two years.

In a statement received in March 1995, and at a hearing held
before the undersigned Board Member in July 1998, the veteran
indicated that he occasionally experienced tinnitus, usually
after being in a noisy environment, and that that condition
resulted from his noise-induced hearing loss.

The March 1993 examination report confirms that the veteran
has tinnitus, and a DD Form 214 reflects that the veteran
served as an officer in a motor transport pool.
That notwithstanding, the March 1993 examination report,
which is the only relevant post-service medical evidence of
record, does not include a medical opinion linking the
veteran�s tinnitus to his military occupational specialty
(which allegedly exposed him to a significant amount of
noise) or otherwise to his period of active service.  Rather,
it includes a mere notation by the examiner that the veteran
worked around heavy equipment while in the military.

The veteran�s statements to the effect that his tinnitus
results from in-service noise exposure or noise-induced
hearing loss, standing alone, are insufficient to establish
the legally required nexus or link between tinnitus and his
period of active service.  See Espiritu v. Derwinski, 2 Vet.
App. 492, 494-5 (1992) (holding that laypersons are not
competent to offer medical opinions).  Inasmuch as the record
is devoid of competent medical evidence linking the veteran�s
tinnitus to his period of active service, the veteran�s claim
for service connection for tinnitus must be denied as not
well grounded.

B.  Hearing Loss

The veteran maintains that his hearing acuity decreased
during active service as a result of his exposure to heavy
equipment noise while serving as a transportation and
maintenance management officer.  His service separation
report confirms that he served as a motor transport officer.

For purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory thresholds in any of the frequencies 500, 1,000,
2,000, 3,000 or 4,000 hertz, is 40 decibels or greater; or
when the auditory thresholds for at least three of the
frequencies, 500, 1,000, 2,000, 3,000 or 4,000 are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent.  See 38
C.F.R. � 3.385.

A pre-service audiological examination dated December 1983
shows the following pure tone thresholds (in decibels):

HERTZ

500
1000
2000
3000
4000
RIGHT
0
5
20
15
10
LEFT
0
5
25
15
20

The service medical records do not include an entrance
examination report.  On audiological examination in January
1990	, the following pure tone thresholds (in decibels) were
noted:

HERTZ

500
1000
2000
3000
4000
RIGHT
5
10
15
10
10
LEFT
5
15
30
20
30

On separation audiological examination in July 1992	, the
veteran reported hearing loss.  The following pure tone
thresholds (in decibels) were noted:

HERTZ

500
1000
2000
3000
4000
RIGHT
-5
10
15
0
10
LEFT
0
10
25
20
20

The examiner indicated �normal audio.�

Following discharge, in March 1993, the veteran underwent a
VA audio examination.  The following pure tone thresholds (in
decibels) were noted:

HERTZ

500
1000
2000
3000
4000
RIGHT
0
5
15
10
10
LEFT
0
10
20
20
20

The VA examiner diagnosed hearing within normal limits for
adjudication purposes.

The reported findings reflect that the veteran does not meet
the criteria required for establishing the existence of a
current hearing disability.  There simply no evidence, Apart
from the veteran�s contentions, the objective medical
evidence does not establish that he currently suffers hearing
loss to a sufficient degree as to be considered a
�disability� within the meaning of the aforementioned
legislation.  As previously discusses, the veteran as a
layman is unable to provide competent evidence of a current
hearing disability.  Espiritu, 2 Vet. App. at 494-5.

Since the record lacks objective evidence of a current
hearing disability for VA purposes, the Board finds that the
veteran�s claim for service connection for hearing loss must
be denied as not well grounded.

C.  Back

The veteran contends that his current back disability
resulted from injuries during active duty when he was
involved in a motor vehicle accident three months prior to
his release from active service.  Allegedly, following the
accident, the veteran remained on light duty and underwent
physical therapy.  The veteran asserts that he has had
continuous pain since the accident, but has not sought
treatment for that pain.

During his hearing, the veteran reported that he expected to
have an MRI performed within the next two weeks, but no
additional evidence has been received in connection with the
current appeal.

Service medical records confirm that the veteran sustained a
musculoskeletal strain as a result of a motor vehicle
accident in May 1992.  Immediately following the accident,
the veteran was treated at an emergency room and given
limited duty for two days.  Three weeks later, in June 1992,
he complained of continued low back pain and lower back
strain was diagnosed.  Physical therapy was recommended and
medication was prescribed.  Two weeks later, the veteran
reported that his low back pain had improved, but was not
good.  On separation examination in July 1992, the veteran
reported recurrent back pain.  The examining physician noted
no musculoskeletal abnormalities, but indicated that the
veteran had mild chronic low back pain after motor vehicle
accident, not considered disqualifying.

Post-service medical evidence includes a March 1993 report of
VA examination in connection with the veteran�s November 1992
compensation claim.  On the March 1993 examination, the
veteran reported some stiffness and soreness of his back,
aggravated by cold weather, since being rear-ended in May
1992 in a military motor vehicle.  No pertinent abnormalities
were reported from physical examination or x-rays study of
the lumbar spine.  The examiner diagnosed low back strain.

In June 1998, the veteran sought treatment for back pain.
The medical report noted a history of injury to the veteran�s
low back in the motor vehicle accident in May 1992 when he
was rear-ended and had a seat belt on.  There was also a
history of low back pain associated with a May 1993 motor
vehicle accident when the veteran hit someone else, followed
by three weeks of physical therapy.  The examining physician
noted pain in the lower back, but did not include a medical
opinion addressing the etiology or cause of the veteran�s
back pain or any relationship to the low back strain
diagnosed on the May 1993 examination.

As matters stand, the record does not include medical
evidence linking any current back disorder to the in-service
back injury or otherwise to the veteran�s active service.
Inasmuch as there is no competent medical evidence providing
such a link, the veteran�s claim of entitlement to service
connection for a back disorder is not well grounded and must
be denied.  If the veteran obtains further medical evidence,
through an MRI study or otherwise, identifying a current back
disorder linked to the injury in service, he of course may
apply to the RO to reopen his compensation claim on the basis
of such evidence.

D.  Right Leg Disorder

The veteran maintains that his current right leg disorder
(affecting his fibula, not his upper lateral tibia as stated
by the RO) results from constant exercise during basic
training while wearing combat boots.   During his hearing,
the veteran testified that he did not receive treatment or
take medication for his right leg, and had not had right leg
pain or any other right leg symptom since his discharge from
service.

Service medical records do not show that the veteran
complained of or received treatment for his right leg.  On
the separation examination in July 1992, the veteran reported
a �trick� or locked knee, but the examining physician noted
no chronic disability related to that complaint.

During the VA examination in March 1993, the veteran
reportedly had a normal variant on the prominence of the
upper lateral tibia, asymptomatic, but the radiographic study
was normal and no disability of the right fibula was
diagnosed.

As the veteran concedes, he currently does not have a right
leg disorder.  In the absence of competent medical evidence
of a current right leg disorder, the veteran�s claim of
entitlement to service connection for a right leg disorder
must be denied as not well grounded.

E.  Respiratory Disorder

Initially, the Board finds that the veteran�s claim of
entitlement to service connection for a respiratory disorder
is well grounded within the meaning of 38 U.S.C.A. � 5107(a),
and that the VA has fulfilled it duty to assist the veteran
in developing the evidence pertinent to that claim.

The veteran contends that his current respiratory disorder is
due to his in-service duties as a transportation officer.
Such duties included working around diesel fumes and smoke.
Allegedly, he had no respiratory problems prior to his first
in-service case of bronchitis, and his disorder has improved
since he has stopped working around the fumes and smoke.

Service connection may be granted for disability incurred in
or aggravated by active service.  38 U.S.C.A. �� 1110, 1131;
38 C.F.R. � 3.303.  Service medical records reveal that the
veteran was seen during active service for probable
bronchitis, viral syndrome and upper respiratory infections.
On separation examination in July 1992, the veteran reported
ear, nose or throat trouble, sinusitis, and hay fever.  X-
rays of the sinuses were grossly normal.  The examining
physician noted a long history of chronic perennial rhinitis.
No current disability was diagnosed.

During the March 1993 VA general examination, the veteran
reported that he had sinus stuffiness and headaches
continuously.  Sinus x-rays revealed no abnormalities, but
the examiner found swelling of the nasal turbinates.  The
examiner diagnosed chronic rhinitis.  During the audiological
evaluation, the veteran reported nasal and sinus congestion
since 1988.  The examiner diagnosed nasal and sinus
congestion daily since 1988, etiology unknown.

Under 38 C.F.R. � 3.303(b), service connection also may be
granted if it is shown that the veteran�s current disorder
represents manifestations of a chronic disease first shown in
service.  In this case, the veteran received treatment for
respiratory problems during service and was discharged with a
history of chronic rhinitis.  Approximately six months later,
he was diagnosed with chronic rhinitis, and nasal and sinus
problems since 1988.

Considering that the veteran�s chronic rhinitis was diagnosed
shortly after separation based on similar symptomatology
reported during active service, and despite the fact that
chronic rhinitis was diagnosed on separation examination only
by history, the Board is persuaded that the evidence is in
equipoise with respect to whether the chronic rhinitis
diagnosed by VA soon after service represents manifestations
of a chronic disease first shown in service.  Resolving
reasonable doubt in the veteran�s favor, a grant of service
connection for rhinitis is warranted under 38 C.F.R. �� 3.102
and 3.303(b).

F.  Conclusion

The veteran has not met his initial burden of submitting
evidence of well-grounded claims for service connection for
tinnitus, hearing loss, a back disorder and a right leg
disorder; therefore, the VA is under no duty to assist him in
developing the facts pertinent to those claims.  Epps, 126
F.3d at 1468.  The Board is unaware of the existence of
additional evidence that might well ground those claims.
Therefore, a duty to notify the veteran of the need to submit
such evidence does not arise pursuant to 38 U.S.C.A.
� 5103(a).  See McKnight v. Gober, 131 F.3d 1483, 1484-1485
(Fed. Cir. 1997).  That notwithstanding, the Board views its
discussion as sufficient to inform the veteran of the
elements necessary to well ground his claims, and to explain
why his current attempt fails.

The Board recognizes that the veteran�s claims for service
connection for tinnitus, hearing loss, a back disorder and a
right leg disorder are being disposed of in a manner that
differs from that employed by the RO.  The RO denied those
claims on the merits, while the Board has concluded that the
claims are not well grounded.  When an RO does not
specifically address the question of whether a claim is well
grounded, however,  but instead proceeds to adjudication on
the merits, there is no prejudice to the veteran solely from
the omission of the well-grounded analysis.  Meyer v. Brown,
9 Vet. App. 425, 432 (1996).  The Board concludes in this
case that the veteran has not been prejudiced as a result of
the manner in which the Board has disposed of the
aforementioned claims.

ORDER

Service connection for tinnitus, hearing loss, a back
disorder and a right leg disorder is denied.

Service connection for rhinitis is granted.

	CHARLES E. HOGEBOOM
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date that appears on the face of this decision constitutes
the date of mailing and the copy of this decision that you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

- 2 -


judge_norm: BARBARA B COPELAND

text:
Citation Nr: 9835000
Decision Date: 11/25/98    Archive Date: 12/01/98

DOCKET NO.  96-03 205	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a bilateral foot
disability

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

J.R. Bryant, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1983 to May
1992.

This matter comes before the Board of Veterans� Appeals
(Board) of the Department of Veterans Affairs (VA) on appeal
from a July 1993 rating determination by the Roanoke,
Virginia, Regional Office (RO).  This case was previously
before the Board in December 1996 and remanded for additional
development and adjudication.

CONTENTION OF APPELLANT ON APPEAL

The veteran contends that he sustained a bilateral foot
disability while on active duty.  He maintains that his
duties as a paratrooper consisted of making numerous
parachute jumps which resulted in chronic bilateral foot and
ankle pain.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that a preponderance of the
evidence is against the claim for service connection for a
bilateral foot disability.

FINDING OF FACT

The veteran has not presented competent evidence to show that
a bilateral foot disability was incurred in service or is
otherwise related thereto.

CONCLUSION OF LAW

A chronic bilateral foot disability was not incurred in or
aggravated by active service and arthritis may not be
presumed to be of service onset.  38 U.S.C.A. �� 1101, 1110,
1112, 1113, 5107(a), 7104 (West 1991 & Supp. 1998); 38 C.F.R.
�� 3.303, 3.307, 3.309 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background.  Service medical records show that in
February 1987 the veteran was evaluated for possible
frostbite of both great toes.  Examination revealed mild
tenderness of the distal left fifth metacarpal.  The skin of
both toes was normal as were range of motion and X-rays
studies.  The clinical assessment was contusion.  In January
1989, the veteran was evaluated for complaints of right foot
pain following an eight-mile run. He was able to complete
another eight-mile run several days later but continued to
complain of pain.  The diagnosis was right foot sprain.
During examinations conducted in September 1986 and May 1989
the veteran specifically denied any foot trouble.  At the
separation examination in March 1992 the examiner noted the
veteran�s complaints of bilateral foot pain but indicated
that there had been no treatment.  The feet were noted to be
normal.

At a post-service VA examination in May 1993 the veteran
complained of stiff feet in the morning.  Examination of the
feet was normal and X-ray studies of the ankles and feet did
not reveal any significant articular, bony or soft tissue
abnormalities.

The veteran presented testimony at a RO hearing in March 1995
about the onset and severity of his bilateral foot
disability. He testified that as a paratrooper he made
between 60 and 80 parachute jumps.  He also testified that he
did not sustain any foot injuries which required treatment
but that the numerous jumps had an adverse effect on both
feet.  The veteran testified that he had not been told during
service that he had a stress fracture or reaction of his
lower legs or feet and had not been placed on a profile for
running.

On examination in May 1995 the veteran complained of
bilateral foot pain for the last ten years with worsening
over the last two years.  He reported that the pain is
characterized by aching specifically at the heels and the
area of the metatarsophalangeal joints, that worsens with
standing for more than 20 minutes.  The veteran described the
pain as �walking on bone with a lot of burning sensation�.
He stated that both big toes hurt and were very sensitive,
left greater than right, and that the pain was occasionally
relieved by elevating his foot.  The veteran also reported
stiffness upon waking but no swelling.  Examination revealed
very thick fibrotic skin on both heels and erythematous big
toes with the left big toe tender on palpation.  Dorsalis
pedal pulses were equal and full.  A bone scan, to rule out
old stress fractures, revealed joint disease in the
metatarsophalangeal joints and the first proximal
interphalangeal joints and probable left fifth toe.  A
fracture in the left first and fifth distal phalanges could
not be totally ruled out but appeared unlikely.  There was no
evidence of stress fracture in the remainder of the feet but
there was mild joint disease in the tarsal and ankle areas
bilaterally.  X-rays showed the feet were normal in
appearance without fracture or other bony abnormality and no
calcaneal spurs.

Pursuant to a December 1996 Board remand the veteran was
examined by VA in approximately August 1998 to identify the
etiology of any bilateral foot disability found.  The
examination was essentially normal.  There was no tenderness
on palpation of the plantar fascia and at any tendon
insertion.  He had a rectus foot type with minimal subtalar
joint pronation on standing.  Range of motion was full for
all foot and ankle joints with no evidence of crepitus.  The
veteran could stand on toes and heels.  Neurological
examination was also normal.  The diagnosis was idiopathic
soft tissue pain of the left and right feet.  The examiner
stated that he was unable to determine that service
connection was warranted due to the very vague nature of the
veteran�s history and the negative findings on physical
examination.

Analysis.  The Board finds that the veteran�s claim for
service connection for a bilateral food disorder is well
grounded within the meaning of 38 U.S.C.A. � 5107(a) (West
1991 & Supp. 1998) in that it is a �plausible claim, one
which is meritorious on its own or capable of
substantiation.�  Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990).  The Board further finds that the statutory duty to
assist has been satisfied.

The law permits the granting of service connection for a
disability which results from disease or injury incurred in
or aggravated by active military service.  38 U.S.C.A.
� 1110, 1131 (West 1991 & Supp. 1998).  Arthritis may be
presumed to be of service onset if shown to a degree of at
least 10 percent within one year of service discharge.
38 U.S.C.A. �� 1101, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.

In the veteran�s case he contends that he developed a
bilateral foot disability during service as a result of
numerous parachute jumps made as a paratrooper.  Although
service medical records showing treatment in service are not
of record, in December 1996 the Board found the claim to be
well grounded and remanded the case for a medical opinion to
identify the etiology of the veteran�s chronic bilateral foot
pain.  The VA examiner diagnosed idiopathic soft tissue pain,
stating that based on the negative clinical findings he was
unable to determine that service connection was warranted in
the veteran�s case.

Overall, the Board finds that as a chronic bilateral foot
disability was not shown in service or arthritis within one
year of discharge and the veteran�s current bilateral foot
disorder manifests symptoms which have not been medically
associated with military service and his duties as a
paratrooper, the Board has no foundation upon which to allow
the veteran's claim.  In making its determination, the Board
has considered the veteran�s hearing testimony which is
considered credible insofar as he described his current
symptoms and beliefs that his bilateral foot pain is related
to injury in service.  He is not competent, however, to offer
a medical diagnosis or medical opinion regarding etiology.
The competent medical evidence in this case does not provide
a basis for favorable action on the veteran�s claim.

Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for service connection for
a bilateral foot disorder.

ORDER

Entitlement to service connection for a bilateral foot
disorder is denied.

	BARBARA B. COPELAND
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: JEFF MARTIN

text: A well grounded claim for service connection for the cause of the veteran’s not having been submitted, the claim is denied.

text:
Citation Nr: 9838000
Decision Date: 12/30/98    Archive Date: 01/05/99

DOCKET NO.  95-24 642	)	DATE
	)
	)

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

THE ISSUE

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

ATTORNEY FOR THE BOARD

K. J. Kunz, Associate Counsel

INTRODUCTION

The veteran served on active duty from December 1942 to
January 1945.  The appellant is his widow.

This appeal arises from an April 1998 rating decision of the
Atlanta, Georgia, Regional Office (RO).  In that decision,
the RO denied service connection for the cause of the
veteran�s death.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant, the veteran�s widow, contends that service-
connection is warranted for the cause of the veteran�s death
because the chronic ethanol abuse that caused his death began
during his military service, and because his chronic ethanol
abuse became progressively worse as he consumed alcohol to
try to relieve the pain from his service-connected back
disability.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for service
connection for the cause of the veteran�s death is not well
grounded.

FINDINGS OF FACT

1.  The veteran died in March 1991, from acute and chronic
ethanol abuse.

2.  The veteran was service connected for a low back
disability and bilateral pes planus.

3.  The appellant has not submitted competent evidence that
the veteran�s ethanol abuse began during service.

4.  The appellant has not submitted competent evidence of a
nexus between the veteran�s low back disability and his death
from ethanol abuse.

CONCLUSION OF LAW

The claim for service connection for the cause of the
veteran�s death is not well grounded.  38 U.S.C.A. � 5107
(West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant, the veteran�s widow, is seeking service
connection for the cause of the veteran�s death.  The veteran
died in March 1991.  The certificate of death listed the
cause of his death as acute and chronic ethanol abuse.  The
veteran had a service-connected low back disability,
described as post-operative residuals of a herniated lumbar
disc.  He also had service-connected bilateral pes planus.
The appellant contends that service connection is warranted
for the cause of the veteran�s death because the chronic
ethanol abuse that caused his death began during his military
service, and because his chronic ethanol abuse became
progressively worse as he consumed alcohol to try to relieve
the pain from his service-connected back disability.

Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service.  38 U.S.C.A. �� 1110, 1131 (West 1991); 38 C.F.R.
� 3.303 (1998).  To establish service connection for the
cause of a veteran's death, evidence must show that
disability incurred in or aggravated by service either caused
or contributed substantially or materially to causing death.
For a service-connected disability to be the 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 is not sufficient to show that it casually shared
in producing death, but, rather, there must have been a
causal connection.  38 C.F.R. � 3.312 (1998).

A person who submits a claim for veteran's benefits has the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded.  38 U.S.C.A. � 5107(a) (West 1991).  The United
States Court of Veterans Appeals (Court) has defined a well
grounded claim as a plausible claim; one which is meritorious
on its own or capable of substantiation.  Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990).  When a person has
presented a well grounded claim within the meaning of
38 U.S.C.A. � 5107(a) (West 1991), the Department of Veterans
Affairs (VA) has a duty to assist the claimant in the
development of her claim.  38 U.S.C.A. � 5107(a) (West 1991).

In Caluza v. Brown, 7 Vet.App. 498 (1995), the Court set out
three requirements that must be met in order for a claim of
service connection to be considered well grounded.  First,
there must be competent evidence of a current disability (a
medical diagnosis).  Second, there must be competent evidence
of incurrence or aggravation of a disease or injury in
service (lay or medical evidence).  Third, there must be
competent evidence of a nexus between the injury or disease
in service and the current disability (medical evidence).
The third requirement can be satisfied by a statutory
presumption that certain diseases that manifest within
certain prescribed periods are related to service.  Caluza,
at 506.

The Court has ruled that, for a claim for service connection
for the cause of a veteran�s death to be well grounded, the
same three requirements apply.  Ramey v. Brown, 9 Vet.App. 40
(1996).  In cause of death cases, the first requirement,
evidence of a current disability, will always have been met
(the current disability being the condition that caused the
veteran to die), but the last two requirements must be
supported by evidence of record.  Id. at 46.

The appellant essentially proposes two theories under which
the cause of the veteran�s death should be service-connected:
first, that his chronic ethanol abuse was incurred in
service; and, second, that his service-connected low back
disability contributed substantially or materially to causing
the veteran�s death from chronic ethanol abuse.  To establish
a well grounded claim under the first theory, there must be
competent evidence that the veteran�s chronic ethanol abuse
was incurred or aggravated in service.  There is no medical
evidence that the veteran engaged in chronic ethanol abuse
during service.  His service medical records contain no
notation of alcohol abuse.  In medical records dated in March
1943 and December 1943, reports regarding the veteran�s
social history stated that he did not drink alcohol.

The only evidence that the veteran abused alcohol during his
service is the appellant�s assertion that he did.  While a
person who does not have medical training is not competent to
provide a medical diagnosis, a lay person is competent to
report behavior that he or she witnessed.  In September 1991,
the appellant testified in a hearing at the RO (in reference
to a claim that was then pending, and not the claim that is
currently before the Board).  The appellant reported that she
first met the veteran after he got out of service, and that
they married about a month later.  Because the appellant did
not know the veteran while he was in service, she does not
have first hand knowledge of his behavior during service.
Therefore, she is not competent to report whether he used or
abused alcohol during service.  In the absence of competent
evidence that the veteran�s chronic alcohol abuse was
incurred or aggravated in service, the first theory of the
appellant�s claim is not supported by evidence sufficient to
form a well grounded claim.

The appellant�s second theory is that the veteran drank to
relieve back pain, and that his service-connected back
disability therefore contributed to causing his death from
chronic alcohol abuse.  With regard to that theory, there is
no medical evidence that the veteran�s back pain caused or
contributed to his chronic alcohol abuse.  The earliest
reference to alcohol abuse in the veteran�s medical records
was in 1990, when the admissions coordinator of the nursing
home where the veteran was admitted wrote that the veteran
had diagnoses of hip fracture, chest pain, and ethanol abuse.
That letter did not address the etiology of the veteran�s
ethanol abuse.  The certificate of death, which listed the
cause of the veteran�s death as acute and chronic ethanol
abuse, was also silent for any opinion as to the etiology of
the veteran�s ethanol abuse.  The appellant is not competent
to provide an opinion that one condition, such as a low back
disability with pain, was the medical cause of another
condition, such as ethanol abuse.  See Espiritu v. Derwinski,
2 Vet.App. 492 (1992).  In the absence of competent, medical
evidence that back pain contributed to causing the veteran�s
death from ethanol abuse, the appellant�s second theory fails
to meet the requirements for a well grounded claim.  As the
appellant has not submitted evidence sufficient to form a
well grounded claim for service connection for the cause the
veteran�s death, her claim is denied.

ORDER

A well grounded claim for service connection for the cause of
the veteran�s not having been submitted, the claim is denied.

	JEFF MARTIN
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

- 2 -


judge_norm: MARK F HALSEY

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

text:
Citation NR: 9800001
Decision Date: 01/02/98		Archive Date: 01/13/98

DOCKET NO.  94-43 924	)	DATE
	)
	)

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

THE ISSUES

To be determined.

REPRESENTATION

To be clarified.

WITNESS AT HEARING ON APPEAL

Appellant

REMAND

The veteran served on active duty from January 1946 to April
1947.

This case was forwarded to the Board of Veterans� Appeals
(Board) in November 1997 from the Columbia, South Carolina
RO.  Previously, the RO sought clarification of the power of
attorney that had been executed by the veteran in 1991.  This
was done apparently because the August 1991 VA Form 21-22
completed by the veteran authorized more than one
organization to undertake the veteran�s representation before
VA.  See 38 C.F.R. � 20.601 (1996) (a specific claim may be
prosecuted at any one time by only one recognized
organization, attorney, agent or other person properly
designated to represent the appellant).  However, it is not
clear from the record whether the veteran thereafter
clarified his intention with respect to representation.

An October 13, 1997, letter from the office of the South
Carolina Division of Veterans Affairs was sent to the
veteran.  He was asked to execute another VA Form 21-22.
Subsequently, a VA Form 646, Statement of Accredited
Representation in Appealed Case, was completed by the
American Legion.  Such an act suggests that the veteran did
indeed complete another VA Form 21-22, appointing the
American Legion.  However, such a form, if executed, was not
made a part of the record.

By a December 12, 1997, memorandum, the American Legion asked
that the case be remanded to clear up this confusion.  The
Board agrees that a remand is required.

The RO should take action to clarify the
veteran�s intent with respect to
representation before VA.  If a VA Form
21-22 was completed in response to the
October 13, 1997, letter, it should be
associated with the claims file.  (The
American Legion and the South Carolina
Division of Veterans Affairs should be
contacted to assist in the search of the
VA Form 21-22 that may have been recently
executed by the veteran.)  If no such
designation of representative was
recently made, the veteran should be
asked to do so.

After completion of the action sought above, the case should
be returned to the Board for further consideration.  If the
RO takes adjudicatory action with respect to any issue it
deems to be on appeal, a supplemental statement of the case
should be issued and the veteran should be allowed to respond
before the case is returned to the Board.

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

	MARK F. HALSEY
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1996).
- 2 -


text:
Citation NR: 9801001
Decision Date: 01/14/98		Archive Date: 01/21/98

DOCKET NO.  95-29 073A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased (compensable) rating for
residuals of a right inguinal hernia.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counse

REMAND

The veteran served on active duty from October 1966 to
October 1968.

This matter arises from a rating decision entered in June
1995 by the Department of Veterans Affairs (VA) Regional
Office (RO) in Cleveland, Ohio, denying the veteran�s claim
for increase for residuals of a right inguinal hernia repair.

In connection with his appeal, the veteran has alleged that
he has undergone two surgeries for repair of a right inguinal
hernia and that he is bothered by residual pain, swelling,
and limitation of function, particularly as to his ability to
perform lifting or stooping activities.  He further asserts
that the VA�s medical examination was inadequate, inasmuch as
it did not address the scarring from each of the surgical
procedures performed.

It is noted by the Board that VA muscles and skin
examinations in 1994 identified but one surgical scar of the
right inguinal area, with there being slight tenderness over
the scar with palpation.  Only a skin examination was
thereafter performed by VA in 1996, when two scars were in
evidence, but no swelling, tenderness, or keloid formation
was objectively noted.  Due to the conflicting findings
presented, and inasmuch as neither report addresses any
recurrence of the veteran�s right inguinal hernia, its
reducibility, or the veteran�s use or non-use of a truss or
belt, further medical input is deemed advisable.

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

The veteran is to be afforded an
examination by a VA surgeon for the
purpose of determining the nature and
severity of the veteran�s residuals of a
right inguinal hernia.  The entirety of
the veteran�s claims folder must be made
available to the examiner prior to any
evaluation of the veteran for use in the
study of this case.  Such examination
should include a detailed clinical
evaluation with specific findings as to
the presence or absence of a recurrence
of a hernia of the right inguinal canal,
and if so, whether any such hernia is
readily reducible, remediable, or well-
supported by a truss or belt.  Also, the
scarring related to prior right hernia
repairs is to be described in full,
particularly as to the existence of pain,
tenderness, or swelling on objective
demonstration.  Any and all laboratory
testing deemed appropriate by the
examiner must also be undertaken.

Thereafter, the RO must readjudicate the veteran�s claim for
increase for residuals of a right inguinal hernia.  If the
benefit sought on appeal is not granted, the veteran should
be furnished a supplemental statement of the case and be
afforded a reasonable period in which to respond before the
record is returned to the Board for further review.

The purpose of this REMAND is to obtain clarifying data, and
the Board does not intimate any opinion as to the merits of
the case, either favorable or unfavorable, at this time.  The
veteran is free to submit any additional evidence he desires
to have considered in connection with his current appeal
subject to applicable regulations on the subject, including
38 C.F.R. � 20.1304 (1996).  No action is required of the
veteran until he is notified.

	BRUCE KANNEE
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1996).

- 2 -


text: Therefore, because it appears that the RO’s determination in this regard turned on the standard articulated by Colvin, rather than relying solely on § 3.156(a), a remand is required so that the RO may adjudicate the claim to reopen without relying on the now invalidated standard for “materiality” set forth in Colvin. See Bernard v. Brown, 4 Vet.App. 384 (1993). Accordingly, the case is REMANDED for the following actions:

text:
Citation Nr: 9901000
Decision Date: 01/15/99    Archive Date: 01/22/99

DOCKET NO.  97-34 712	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for right eye aphakia.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Wanda Beamon, Associate Counsel

INTRODUCTION

The appellant served on active duty from October 1954 to
January 1960.

This matter comes before the Board of Veterans Appeals
(Board) on appeal from an August 1997 rating action.  In that
decision, the regional office (RO) denied the appellant�s
petition to reopen a previously denied claim of service
connection for right eye aphakia.

REMAND

As noted above, the appellant�s claim of service connection
for right eye aphakia has been characterized as a claim to
reopen.  This is so because a claim of service connection was
previously denied in March 1984 and no appeal ensued.  See
38 C.F.R. �� 19.129, 19.192 (1984) (a claimant has one year
in which to initiate an appeal; otherwise the rating
determination by the RO becomes final).  When a prior denial
becomes final, the underlying claim of service connection may
be considered again, but only on the presentation of new and
material evidence.  38 U.S.C.A. � 5108 (West 1991).

It appears from a review of the August 1997 rating action and
the September 1997 statement of the case, that the RO applied
the �materiality� test adopted by the United States Court
of Veterans Appeals (Court) in the case of Colvin v.
Derwinski, 1 Vet.App. 171 (1991).  (The RO referred to
� 3.156(a) in its statement of the case, but articulated the
Colvin test as the standard used to deny the veteran�s
application to reopen.)  Under the Colvin test, which was
recently invalidated by the Federal Circuit in Hodge v. West,
155 F.3d 1356 (Fed.Cir. 1998), evidence was considered
�material� when it was probative of the issue at hand and
there was a reasonable possibility of a change in the outcome
when the newly submitted evidence was viewed in light of all
the evidence of record.  In invalidating this test, the
Federal Circuit reasoned that the �reasonably likely to
change the outcome� requirement was not only unnecessarily
stringent, it was also inconsistent with the regulation on
point, 38 C.F.R. � 3.156(a), which merely required that newly
submitted evidence bear directly or substantially on the
specific matter and be so significant that it must be
considered in order to fairly decide the merits of the claim.
� 3.156(a).

Therefore, because it appears that the RO�s determination in
this regard turned on the standard articulated by Colvin,
rather than relying solely on � 3.156(a), a remand is
required so that the RO may adjudicate the claim to reopen
without relying on the now invalidated standard for
�materiality� set forth in Colvin.  See Bernard v. Brown,
4 Vet.App. 384 (1993).  Accordingly, the case is REMANDED for
the following actions:

The veteran�s application to reopen a
claim of service connection for right eye
aphakia, should be re-adjudicated by the
RO.  The standard for reopening
previously denied claims as set forth in
38 C.F.R. � 3.156(a) should be used as
the sole test for determining whether the
veteran has submitted �new and
material� evidence.  If the benefit
sought is denied, a supplemental
statement of the case should be issued.
The supplemental statement of the case
should refer to the definition of
� 3.156(a) as the basis for deciding the
claim to reopen.

After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder should be returned to this Board for
further appellate review.  The purpose of this remand is to
comply with governing adjudicative procedures.  The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition of this appeal.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans� Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans� Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA�s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

	MARK F. HALSEY
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1998).
- 2 -