series: legacy

judge_norm: CHARLES L CRAGIN

judge_role: Chairman

disposition: granted

text:
92 Decision Citation: BVA 92-26031

 Y92
                          BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    DOCKET NO.  80-14 110       )    DATE
                                )
    (RECONSIDERATION)           )
                                )

                              THE ISSUE

    Entitlement to service connection for an acquired
    psychiatric disorder.

                           REPRESENTATION

    Appellant represented by:  Disabled American Veterans

                    WITNESS AT HEARING ON APPEAL

    Appellant

                       ATTORNEY FOR THE BOARD

    B. P. Gallagher, Counsel

                            INTRODUCTION

    The appellant served from January 14 to February 28, 1975.

    This case came before the Board as a result of actions by
    the Nashville, Tennessee, Regional Office (hereinafter RO).
    A rating decision by the RO in July 1975 denied service
    connection for a psychiatric disability.  The veteran
    reopened his claim in 1979.  The Board of Veterans' Appeals,
    in a decision of November 1980, denied entitlement to
    service connection for a psychiatric disorder.

    Rating decisions in May 1983, December 1984, and August 1985
    continued the denial of service connection for a psychiatric
    disorder.  In February 1990, the appellant again attempted
    to reopen his claim.  He filed a notice of disagreement in
    June 1990.  A statement of the case was issued in October
    1990.  He filed a substantive appeal in October 1990.  The
    appellant testified at a hearing before a hearing officer at
    the RO in October 1990.  This case was received at the Board
    in August 1991.  After a review of the case, reconsideration
    of the November 1980 Board of Veterans' Appeals decision was
    ordered by the authority granted to the Chairman in
    38 U.S.C.A. � 7103 (West l99l) and the case is now before an
    expanded reconsideration section of the Board.  The
    appellant has been represented during his appeal by the
    Disabled American Veterans who submitted additional written
    argument in October 1991.  This decision by the
    reconsideration section replaces the decision of November
    1980 and is the final decision of the Board.

               CONTENTIONS OF THE APPELLANT ON APPEAL

    The appellant contends, in substance, that the presumption
    of soundness upon entrance into service was not rebutted
    because the evidence does not establish clearly and
    unmistakably that he had a psychosis prior to service.  He
    stresses that on the examination prior to entrance into
    service, a psychiatric disorder was not noted.  In addition,
    he maintains that the private medical evidence, including
    the clinical records of his private physician prior to
    service, does not establish the existence of a psychiatric
    disorder prior to service.  He also refers to lay statements
    of record to the effect that the veteran was stable prior to
    service.  The appellant also refers to United States Court
    of Veterans Appeals decisions, including Gilbert v.
    Derwinski, l Vet.App. 49 (l990), Brannon v. Derwinski, l
    Vet.App. 3l4 (1991), and Bagby v. Derwinski, l Vet.App. 225
    (1991), in support of his appeal.

                        DECISION OF THE BOARD

    In accordance with provisions of 38 U.S.C.A. � 7104 (West
    l99l), following review and consideration of all evidence
    and material of record in the veteran's claims file and
    reasons and bases herein set forth, it is the decision of
    the Board that the preponderance of the evidence establishes
    the claim for entitlement to service connection for an
    acquired psychiatric disorder.

                          FINDINGS OF FACT

    1.  The veteran did not suffer from an acquired psychiatric
    disorder prior to service.

    2.  The onset of the veteran's psychosis was during service.

                         CONCLUSIONS OF LAW

    1.  Clear and unmistakable evidence does not demonstrate
    that the veteran's acquired psychiatric disorder existed
    before acceptance and enrollment in service.  38 U.S.C.A.
    � 1111 (West l99l); 38 C.F.R. � 3.304 (l99l).

    2.  The veteran's psychosis was incurred in service.
    38 U.S.C.A. �� 1110, 5107 (West l99l).

           REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

    We note that we have found the veteran's claim is "well
    grounded" within the meaning of 38 U.S.C.A. � 5107 and we
    are satisfied that all pertinent facts are of record.

    We note that on the examination prior to entrance into
    service, a psychiatric disorder was not noted.  The Board
    notes that the United States Court of Veterans Appeals in
    Bagby v. Derwinski, l Vet.App. 225, 227 (l99l), stated that
    an appellant who served during wartime is entitled to the
    presumption of soundness at entry into service.  The
    presumption may, however, be rebutted upon the showing of
    clear and unmistakable evidence.

             [E]very veteran shall be taken to have
             been in sound condition when examined,
             accepted, and enrolled for service,
             except as to defects, infirmities, or
             disorders noted at the time of the
             examination, acceptance, and enrollment,
             or where clear and unmistakable evidence
             demonstrates that the injury or disease
             existed before acceptance and enrollment
             and was not aggravated by such service.

    38 U.S.C.A. � 1111 (West l99l).

    The Board is aware that two days after the veteran entered
    service, he was referred from a mental hygiene consultation
    service to the psychiatric service because of bizarre
    ideation and hallucinations.  Statements recorded for
    clinical purposes indicated  that he "has heard the Lord's
    voice" for about two years but "ran from it" until December
    1974, when he accepted a command "from the Lord" to join the
    ministry.  Since that time, he had considered himself a man
    of God and a religious leader with an important message to
    preach.  It was also reported that he had undergone a
    circumcision in December 1974 to "cleanse himself" to enter
    the ministry and since that time, he had had sexual and
    marital problems and joined the Army to try to "become a
    man."  He had hoped that the Army would rekindle his
    interest in women, although after his arrival at Fort Knox,
    he realized that the problem was persisting.  On mental
    status evaluation, he showed pronounced psychomotor
    retardation.  He sat immobile in his chair, staring at his
    hands.  He refused to meet the examiner's gaze except when
    describing his calling to the ministry.  He was very
    difficult to understand as he mumbled answers to the
    questions.  He became extremely vociferous and open when
    describing his religious ideas and readily described his
    calling to the ministry and his message of love that he was
    obliged to spread.  He quietly and tearfully related his
    loss of interest in women sexually and an inability to get
    an erection.  He claimed that he had heard voices described
    as that of God, telling him to do a variety of things,
    including obtaining a circumcision, getting married and
    joining the Army.  He was oriented and his fund of
    information was very good.  Abstraction ability was markedly
    impaired.  His proverbs were personalized and concrete.  He
    admitted to a mental problem, but described it as "worry."
    There was no insight into the delusional nature of God's
    voice.

    The veteran was treated with Stelazine and rapidly showed
    improvement, with some clearing of the psychomotor
    retardation and a degree of insight into his problem.  He
    continued to feel, however, that his behavior was based upon
    religious influence and he continued to admit that he heard
    the voice of God.  It was concluded that he was suffering
    from a chronic form of paranoid schizophrenia that was in
    partial remission.

    In addition to the above service medical records, the Board
    has considered private detailed clinical records disclosing
    treatment of the appellant from 1969 until 1979 for various
    complaints and medical problems.  The only indication of any
    mental problems prior to service was a diagnosis of possible
    anxiety reaction in December 1974.  We note, however, that
    when the veteran was seen in early January 1975 prior to his
    entrance into service, although he complained of stomach and
    head problems, there is no indication of a psychiatric
    disorder.  Furthermore, in November 1984, H. J. Francois,
    M.D., reported that he had reviewed the appellant's
    treatment records from October 1969 through May 1975.  He
    stated unequivocally that at no time did he entertain a
    diagnosis consistent with a nervous disorder, although in
    May 1975, after the veteran's discharge from service, he was
    treated for anxiety (job related; personal upheaval and
    reorganization in his division).  In addition, there are
    several lay statements dated in 1983 to the effect that the
    appellant was a stable young man prior to service.  Also, at
    a hearing before a hearing officer at the RO in October
    1990, the veteran testified that he had not had treatment
    for a nervous condition prior to service.  There is also
    evidence of treatment of the veteran by the Department of
    Veterans Affairs (VA) subsequent to service for
    schizophrenia.

    The Board has evaluated the evidence of record in
    association with the applicable law and regulations in this
    case.  We find that the history given by the veteran during
    his hospitalization in service can be discounted in view of
    the fact that he was floridly psychotic at that time.  Also,
    voluminous medical records prior to service do not show the
    existence of a psychosis, the psychiatric disorder
    manifested after the veteran entered service, and also, the
    1984 statement of the veteran's treating physician
    demonstrates the veteran did not have a psychosis prior to
    service.  Therefore, on the basis that the presumption of
    soundness at entrance into service was not rebutted clearly
    and unmistakably, we find that the preponderance of the
    evidence establishes the onset of the veteran's psychosis
    during service.

                                ORDER

    Service connection for the veteran's psychosis is granted.

                     BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

      I. S. SHERMAN (Dissenting)           D. W. DATLOW, M.D.

                     C. W. SYMANSKI (Dissenting)

        WARREN W. RICE, JR.                 SHANE DURKIN

                          FRANCIS F. TALBOT

                               DISSENT

    We are unable to join the opinion of the majority because we
    believe that the evidence of record rebuts the presumption
    of soundness, and that the veteran's preexisting psychiatric
    disorder was not aggravated by service.

    Title 38 U.S.C.A. � 1111 (West 1991) provides:

        For the purposes of section 1110 of this title,
        every veteran shall be taken to have been in sound
        condition when examined, accepted, and enrolled for
        service, except as to defects, infirmities, or
        disorders noted at the time of the examination,
        acceptance, and enrollment, or where clear and
        unmistakable evidence demonstrates that the injury
        or disease existed before acceptance and enrollment
        and was not aggravated by such service.

    No psychiatric disorder was noted when the veteran was
    examined for enlistment purposes into the Army in October
    1974.  Accordingly, the veteran is entitled to receive the
    benefits of the application of the presumption that he was
    in sound condition upon his entrance into active duty.
    However, this presumption is not absolute.  As the language
    of the statute indicates, and as the United States Court of
    Veterans Appeals has held in Akins v. Derwinski, 1 Vet.App.
    228 (1991), the presumption may be rebutted if it is shown
    by clear and unmistakable evidence that a disorder existed
    prior to the veteran's military induction.  If it is shown
    that a disorder existed prior to service, it must be
    demonstrated by clear and unmistakable evidence that the
    disorder was not aggravated by service.  Definitionally
    "clear and unmistakable evidence" describes the
    persuasiveness of evidence.  Akins, l Vet.App. at 231.

    The service medical records in this case show that the
    veteran went to the Troop Medical Clinic, the day after his
    entrance into active service with vague complaints about his
    genitals.  Thereafter, he was referred to the Mental Hygiene
    Clinic because of the bizarre nature of his complaints and
    the next day, after he admitted to auditory hallucinations,
    was referred to the Psychiatric Service of Ireland Army
    Hospital.  While hospitalized, the veteran provided a
    history of experiencing auditory hallucinations (hearing
    "the Lord's voice") for about 2 years.  Mental status
    examination revealed that there was pronounced psychomotor
    retardation, although the veteran became extremely
    vociferous and open when describing his religious ideas.
    His abstraction ability was markedly impaired and his
    interpretations of proverbs were both personalized and
    concrete; however, he was oriented and his fund of
    information was very good.  With medication, he showed rapid
    improvement with some clearing of the psychomotor
    retardation and a degree of insight into his problem.
    However, he continued to admit to hear the voice of God.
    The diagnosis was chronic paranoid type schizophrenia.  The
    precipitating stress was considered minimal given that the
    veteran was participating in routine military reception
    processing.  It was recommended that the veteran be
    discharged from service by reason of his disability and this
    was accomplished the following month.

    The majority have concluded that because the veteran was in
    a florid psychotic state during the in-service
    hospitalization, his version of his prior psychiatric
    history is not credible.  We disagree.  We note that the
    in-service physician concluded that the veteran was
    competent and able to participate in the Medical Evaluation
    Board proceedings which were conducted, while at the same
    time the veteran continued to experience auditory
    hallucinations.  Thus, the evidence does not show that the
    mere presence of florid psychotic symptoms precludes an
    ability to understand and cooperate in a medical
    proceeding.  Medical authorities are generally in agreement
    as to the importance of medical history in the diagnosis and
    treatment of disease.

           The written history of an illness should
           embody all the fact of medical significance
           in the life of the patient up to the time
           that he consults the physician; but, of
           course, his most recent diseases attract the
           most attention, for these, obviously, are the
           reason that he seeks medical advice.  Ideally
           the narration of symptoms should be in the
           patient's own words, the principal events
           being presented in the temporal order in
           which they occurred.  However, few patients
           possess the necessary powers of observation
           and talent of lucid, coherent description.
           Usually the help of the physician is needed.
           He must guide them by questions but at the
           same time must avoid influencing them by
           inserting his own ideas.

                           . . . .

           An informative history is more than an
           orderly listing of symptoms.  Something
           always is gained by listening to the patient
           and noting the way in which he talks bout his
           symptoms.  Inflection of voice, facial
           expression and attitude may betray important
           clues as to the meaning of the symptoms to
           the patient.  Thus, listening to this
           recitation, one discovers not only something
           about the disease but also something about
           the patient.

           With experience one learns the pitfalls of
           history taking.  What patients relate for the
           most part consists of subjective phenomena
           filtered through minds that vary in their
           background of past experience.  Patients
           obviously differ widely in their responses to
           the same stimuli.  Their remarks are variably
           colored by fear of disease, disability, and
           death, and by concern over the consequences
           of illness to their families.  Additional
           difficulties are created by language
           barriers, by failing intellectual powers
           which deprive the subject of accurate recall,
           or by a disorder of consciousness that makes
           him unaware of his illness.  It is not
           surprising, then, that even the most careful
           physician may at times despair of collecting
           factual data; and often he is forced to
           proceed with evidence that represents little
           more than an approximation of the truth.

           Viewed in another way, the symptom marks, in
           the patient's mind, a departure from normal
           health; in the physician's mind, it initiates
           a process of inductive and deductive
           reasoning that culminates in diagnosis.  In
           pondering the various possible explanations
           of a given symptom or clinical state the
           physician begins a search for other data,
           elicited by further questioning of the
           patient and his family, by physical
           examination, or by special laboratory tests.
           The symptoms alone sometimes will provide the
           most certain clue, as in angina pectoris or
           epilepsy, where physical findings and
           laboratory data collected between attacks may
           give no evidence of the existence of heart or
           brain disease even when it is manifestly
           present.  In most illnesses, however, the
           history will not be so decisive, though it
           may still narrow the number of diagnostic
           possibilities and guide the subsequent
           investigation.

           It is in the taking of the history that the
           physician's skill, knowledge, and experience
           are most clearly in evidence.  He has learned
           from experience how to weigh each given
           symptom, depending on its nature and the
           context in which it occurs.  He knows when to
           be incredulous and turn to more reliable
           sources of information, but he never lets his
           skepticism blind him to an unusual symptom, a
           manifestation of some new condition that has
           previously been beyond the reach of medical
           knowledge.  Moreover, he knows when to press
           an interrogation more deeply in a search for
           further details and when to cast about more
           broadly, realizing that "disease often tells
           its secrets in a casual parenthesis."  And,
           finally, he knows history is gathered to
           obtain the confidence of his patient and to
           allay apprehension and fear, the first steps
           in therapy.

    Harrison's Principles of Internal Medicine, 3-4 (7th ed.
    1974).

    The reliability of medical history has also been recognized
    by the Courts as exceptions to the hearsay rule.

           Statements of a presently existing bodily
           condition made by a patient to a doctor
           consulted for treatment have almost
           universally been admitted as evidence of the
           facts stated, and even courts greatly
           limiting the admissibility of declarations of
           bodily condition generally have admitted
           statements made under these circumstances.
           Although statements to physicians are not
           likely to be entirely spontaneous, since they
           are usually made in response to questions,
           their reliability is assured by the
           likelihood that the patient believes that the
           effectiveness of the treatment he receives
           may depend largely upon the accuracy of the
           information he provides the physician.
           Because of this strong assurance of
           reliability courts tend to expand the
           exception to include statements made by a
           patient to a physician concerning past
           symptoms.  This seems appropriate, as
           patients are likely to recognize the
           importance to their treatment of accurate
           statements as to past as well as present
           symptoms.  Some courts may, however, continue
           to admit the testimony only for the limited
           purpose of "explaining the basis for the
           physician's conclusion" rather than to prove
           the fact of the prior symptoms.

    McCormick on Evidence, 839-40 (3rd ed. 1984).

    Clearly, the statements made by the veteran in the instant
    case were obtained during the normal course of treatment by
    physicians trained in the ways to obtain medical history and
    also of its importance.  Clearly, a psychiatrist would have
    to be aware of the problems in obtaining an accurate
    psychiatric history from a patient who is psychotic.
    Nevertheless, the examiners in the instant case found no
    reason to doubt the validity of the medical history provided
    by the veteran; thus, we see no reason to discount the
    reliability merely because the veteran was psychotic.  This
    is particularly true because the examiners had the
    opportunity to observe the veteran and make an assessment as
    to the reliability of the information provided.  Moreover,
    we note that in private medical records dated before the
    veteran's entrance into active service, there was revealed
    what the veteran's physician thought to be a possible
    anxiety reaction.  Although there is no specific description
    of behavior which led to this entry and there is only one
    such entry prior to service, we think it is significant that
    it was made in December 1974, at about the same time that
    the veteran reported to his in-service physician that he had
    to come to some sort of resolution regarding the direction
    he would take with respect to the messages he believed he
    was receiving from God.  In view of this pre-service medical
    record, the veteran's acknowledgment of a psychiatric
    history and the findings and conclusions regarding the
    veteran's psychiatric condition during his service
    hospitalization, we believe there is clear and unmistakable
    evidence showing the presence of a psychiatric disorder
    prior to service.

    We are aware of the veterans contentions and those
    statements he has submitted in which the writers give their
    opinion with respect to the veterans condition prior to
    service.  However, those statements were not made by
    physicians and as such are obviously not the quality of a
    diagnosis.  In addition, they offer no real specific
    relevant examples of the veteran's behavior.  Furthermore,
    all but one indicate that the veteran's demeanor has
    remained unchanged since they have known him.  Given that
    during the period that they have claimed to know him, he had
    been diagnosed to have chronic paranoid schizophrenia in
    service and treated for anxiety after service, the ability
    of those who have offered statements on the veteran's behalf
    to provide insight into the veteran's condition is
    questioned.  The one who noted that the veteran had changed
    since service, merely noted that there was a change and
    acknowledged that a physician could provide further
    information.  In addition, this does not appear to be a
    statement of one who is convinced of the normal, healthy
    behavior of another.

    Regarding the private physician's statement dated in 1984
    that he did not entertain a diagnosis consistent with a
    nervous disorder when he treated the veteran between 1969
    and 1975, we observe that this physician was not the
    veteran's exclusive treating physician during that period
    and was apparently not a psychiatric specialist.  Therefore
    his diagnostic ability in that regard may be questioned as
    well as his authority to make a definitive conclusion
    regarding the veteran's condition during the stated period.
    His opinion is also somewhat at odds with the possible
    anxiety disorder noted by an examiner prior to service.

    We also conclude that there is no showing that the veteran's
    psychiatric disorder was aggravated by service.  Service
    connection may be granted for disability resulting from
    disease or injury incurred in or aggravated by wartime
    service.  38 U.S.C.A. � 1110 (West 1991).  A preexisting
    injury or disease will be considered to have been aggravated
    by active service, where there is an increase in disability
    during such service, unless there is a specific finding that
    the increase in disability is due to the natural progress of
    the disease.  38 U.S.C.A. � 1153 (West 1991); 38 C.F.R. �
    3.306(a) (1991).  The symptoms that the veteran described as
    present prior to service are merely identical to those
    observed by his in-service physician.  Furthermore, it was
    concluded by this physician that any precipitating stress
    due to service was minimal.  This is certainly consistent
    with the veteran's hospitalization only two days after his
    entrance into service.  Therefore, we find no reasonable
    basis to conclude that the veteran's psychiatric disorder
    increased in severity and was aggravated by service.

    In view of the foregoing discussion, we would change the
    majority's findings of fact and conclusion of law to read as
    follows:

                          FINDINGS OF FACT

    1.  The evidence clearly and unmistakably shows the veteran
    manifested a psychiatric disorder prior to service.

    2.  The veteran's preexisting psychiatric disorder did not
    increase in severity during the veteran's period of active
    duty.

                         CONCLUSIONS OF LAW

    1.  The presumption of soundness as to a psychiatric
    disorder is rebutted.  38 U.S.C.A. � 1111 (West 1991).

    2.  The veteran's preexisting psychiatric disorder was not
    aggravated by service.  38 U.S.C.A. �� 1110, 1153 (West
    1991); 38 C.F.R. � 3.306(a) (1991).

         C. W. SYMANSKI                     I. S. SHERMAN

    NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
    1991), 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 (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.

    ADDENDUM:

    Pursuant to 38 U.S.C.A. � 7103(a) (West 1991) the Chairman
    ordered reconsideration in this case.  Upon reconsideration,
    the members of an expanded section of the Board did not
    agree.

    38 U.S.C.A. � 7103(b) (West 1991) provides that the decision
    of a majority of the members of the expanded section shall
    constitute the final decision of the Board.  The majority of
    the members of the expanded section have voted to grant the
    relief sought on appeal.  Accordingly, the benefit sought on
    appeal is granted.

    CHARLES L. CRAGIN
    Chairman


judge_norm: ROGER K BAUER

judge_role: Acting Chairman

text: 38 U.S.C. § 7103(b) (1992) provides that the decision of a majority of the members of the expanded section shall constitute the final decision of the Board. The majority of the members of the expanded section have voted to grant the relief sought on appeal. Accordingly, the benefit sought on appeal is granted.

text:
92 Decision Citation: BVA 92-18144

 Y92
                          BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    DOCKET NO.  90-46 187       )    DATE
                                )
                                )
                                )
       (RECONSIDERATION)

                              THE ISSUE

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

                           REPRESENTATION

    Appellant represented by:  Paralyzed Veterans of America,
                               Inc.

                    WITNESS AT HEARING ON APPEAL

    Appellant

                       ATTORNEY FOR THE BOARD

    J. E. Ormond, Counsel
                            INTRODUCTION

    This matter came before the Board of Veterans' Appeals
    (Board) on appeal from a November 1989 rating decision of
    the Winston-Salem, North Carolina, regional office (RO).
    The veteran's notice of disagreement was received in
    November 1989.  A statement of the case was issued in
    January 1990.  A hearing was held before a Department of
    Veterans Affairs (VA) hearing officer at the RO in June
    1990.  The hearing officer entered his decision later that
    month.  A supplemental statement of the case was issued in
    July 1990.  His substantive appeal was received later that
    month.  The case was received and docketed at the Board in
    October 1990.  On or about October 30, 1990, the Paralyzed
    Veterans of America, Inc., presented written argument in
    support of the veteran's appeal.

    In a decision dated March 13, 1991, the Board denied
    entitlement to service connection for multiple sclerosis.
    The veteran appealed to the United States Court of Veterans
    Appeals (the Court).  In an August 1991 statement, the
    veteran's representative, Paralyzed Veterans of America,
    Inc., requested that the Board reconsider its decision.  On
    October 31, 1991, reconsideration of the March 13, 1991,
    decision was ordered under the authority provided in
    38 U.S.C. � 7103.  The case is now before an expanded
    Reconsideration Section of the Board.

    In March 1992, the General Counsel of the VA and the
    attorney for the appellant filed a joint motion with the
    Court in which, inter alia, certain facts and procedures
    regarding the reconsideration process were stipulated.  The
    Court treated the joint motion as a motion to remand to
    permit reconsideration by the Board, vacated the Board's
    March 13, 1991 decision in [citation redacted], and remanded the case
    to the Board for reconsideration.  On April 7, 1992, the
    Board requested an opinion from a medical expert not
    associated with the VA.  That independent medical expert's
    opinion, which was based on his review of the claims file,
    was received by the Board in June 1992.  Supplemental
    argument on remand was received from the Paralyzed Veterans
    of America, Inc., in June 1992.  The case is now ready for
    further appellate review.
    The appellant had active service from September 26, 1974 to
    September 29, 1978.

                 CONTENTIONS OF APPELLANT ON APPEAL

    It is contended that multiple sclerosis has been present
    since the "mid 70's."  It is alternatively argued that
    multiple sclerosis was manifested to the legally required
    degree within the seven-year presumptive period.  In
    addition, it is maintained that the preponderance of the
    expert medical opinions on file is in favor of the claim.

                        DECISION OF THE BOARD

    In accordance with the provisions of 38 U.S.C. � 7104
    (1992), following review and consideration of all evidence
    and material of record in the veteran's claims file, and for
    the following reasons and bases, it is the decision of the
    Board that multiple sclerosis began during service.

                          FINDINGS OF FACT

    1.  In November 1987, the Board denied entitlement to
    service connection for multiple sclerosis.

    2.  In an August 1988 rating decision, the RO denied
    entitlement to service connection for multiple sclerosis.

    3.  Multiple medical opinions, dated at various times during
    1990, place the onset of multiple sclerosis during service.

    4.  Prior to 1990, the claims file did not contain medical
    opinions expressly linking multiple sclerosis to the
    veteran's period of military service.

    5.  Multiple sclerosis began during service.

                         CONCLUSIONS OF LAW

    1.  Evidence received since the Board denied entitlement to
    service connection for multiple sclerosis in November 1987
    and the RO denied entitlement to service connection for
    multiple sclerosis in August 1988 is new and material, and
    the veteran's claim for that benefit has been reopened.
    38 U.S.C. �� 5108, 7103, 7105 (1992); 38 C.F.R. � 3.156(a),
    (1991).

    2.  Multiple sclerosis was incurred in service.  38 U.S.C.
    �� 1110, 1131, 5107(b) (1992); 38 C.F.R. �� 3.303(a),
    3.303(d), 3.304(b)(2) (1991).

           REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

    The threshold question to be answered in this case is
    whether the appellant has presented a well-grounded claim,
    that is, one which is plausible or meritorious.  If he has
    not, his appeal must fail.  38 U.S.C. � 5107(a) (1992);
    Murphy v. Derwinski, 1 Vet.App. 78 (1990).  The Board finds
    that his claim is well grounded and that the record is
    adequately developed for a fair resolution of the appellate
    issues.

           I.  The Matter of New and Material Evidence.

    In November 1987, the Board denied entitlement to service
    connection for multiple sclerosis; in August 1988, the
    veteran attempted to reopen the claim by submitting
    additional evidence.  The RO rejected the evidence as not
    new and material, and the claim was not reopened.   Those
    decisions then became final.  38 U.S.C. �� 7103, 7105.
    Finality notwithstanding, the claim may be reopened and the
    former dispositions reviewed, if new and material evidence
    is secured or presented.  38 U.S.C. � 5108.  New evidence,
    however, means more than evidence that was not previously
    physically of record, and is evidence that is more than
    merely cumulative.  Colvin v. Derwinski, 1 Vet.App. 171
    (1991).  Stated alternatively, new and material evidence
    means evidence not previously submitted to agency decision
    makers which bears directly and substantially upon the
    specific matters under consideration, which is neither
    cumulative nor redundant, and which by itself or in
    connection with evidence previously assembled is so
    significant that it must be considered in order to fairly
    decide the merits of the claim.  38 C.F.R. � 3.156(a).

    Essentially, the "new" evidence in this case includes
    several statements by physicians placing the onset of
    multiple sclerosis in service.  There is additional evidence
    which deals primarily with the current status of the
    veteran's demyelinating disorder.  It is also important to
    point out that all the additional evidence is not favorable
    to the veteran's claim.  We will address the relative weight
    of the evidence later in this decision.  At this juncture,
    however, we are persuaded that the statements and opinions
    of Doctors Mayer, Putman, and Pearce are unquestionably new
    and, if probative value is attached to them, then service
    connection might be warranted for multiple sclerosis.  We
    are persuaded that the new evidence creates a reasonable
    possibility that the previous adjudicative and appellate
    outcomes could be changed when viewed in the context of the
    entire record.  Colvin at 174.  Thus, we conclude his claim
    has been reopened.  38 U.S.C. � 5108.

              II.  The Merits of the Reopened Claim.

    The Board's function is to weigh and analyze the evidence;
    we must also make determinations on the credibility of the
    evidence.  38 U.S.C. � 5107(b); Sanden v. Derwinski, 2
    Vet.App. 97, 100 (1992).  Determinations as to service
    connection will be based on review of the entire evidence of
    record, with due consideration to the policy of the VA to
    administer the law under a broad and liberal interpretation
    consistent with the facts.  38 C.F.R. � 3.303(a).  Where the
    preponderance of the evidence is for the veteran's claim or
    the evidence for and against the claim is approximately in
    balance, the benefit sought is to be granted.  38 U.S.C. �
    5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
    Although the entire record is not without a measure of
    ambiguity, we conclude that the evidence supporting the
    veteran's claim is at least equivalent to that which is
    against the claim.  Essentially, we are unable to conclude
    that the preponderance of the evidence is against the
    claim.  If we cannot reach this determination, then we may
    not deny the claim.  Id. at 54.  Our reasons follow.

    The veteran has testified that he had visual problems,
    headaches, and episodes of fatigue during service.
    (Transcript, June 1990 hearing, pp.1-2.)  He also testified
    that he worked on a farm beginning in 1981 for more than
    three years during which employment he had episodes of his
    "lower extremities giving way."  (Transcript, p.4.)  This
    assertion is at least partially corroborated by the April
    1990 statement of his former employer.  Private medical
    records, dated September 23, 1981, refer to a fall in a "cow
    pen" which occurred 15 months earlier.  His contemporaneous
    complaints included intermittent dizziness.  The veteran's
    spouse reported in her June 1989 statement that between 1979
    and 1986 the veteran would experience loss of balance and
    that his legs would collapse without notice.

    The argument can be made that the veteran did not voice such
    descriptive symptoms until long after the events or episodes
    occurred.  We concede that the veteran's case would be much
    stronger were the record to reflect at an earlier time the
    symptoms and complaints characteristic of multiple
    sclerosis.  It is quite possible that the passage of time,
    the effects of the disease, and an awareness of the legal
    consequences of the time of origin of the disease have
    affected the histories provided since 1986.  On the other
    hand, we neither find nor suggest any conscious fabrication
    on his part.  The service medical records, moreover, are not
    fundamentally inconsistent with recent histories.  For
    example, he complained of dizziness on November 18, 1975,
    reported blurred vision brought about by noise and heat on
    February 25, 1976, and complained of "lightheadedness" and
    fatigue on October 18, 1976.  In addition, the service
    medical records do contain multiple reports of headaches and
    "seizure" activity.  Accordingly, it would not be entirely
    accurate to find that the service medical records contain no
    symptomatology consistent with multiple sclerosis.  In this
    connection, when the veteran was hospitalized after service
    in August 1986, he related that he fell in his kitchen in
    August 1985 "without knowing why."  This event, however, was
    not due to a seizure because his physicians concluded that
    he had had no seizures for the past ten years.  (VA
    Discharge Summary, August 15, 1986, at p. 5.)

    In letters dated March 14 and March 20, 1990, David D.
    Mayer, M.D., related in substance that the veteran had
    reported to him in 1987 of having experienced an episode of
    one week's duration in 1978 when he lost use of his legs.
    Dr. Mayer specifically declared that multiple sclerosis was
    present in service.  In a statement dated March 29, 1990,
    Steven F. Putman, M.D. expressed the opinion that the
    veteran was "first having true symptoms of M.S. well back
    into the mid 70's."  Dr. Putman also declared that the
    veteran's "MRI" of August 7, 1986 demonstrated multiple
    areas of white matter abnormality consistent with multiple
    sclerosis and that "it is entirely possible that the lesions
    were here in the mid 1970's."

    Finally, on a progress note dated July 24, 1990, a VA
    consultant in neurology essentially opined that the symptoms
    of multiple sclerosis began during service.  It is true, as
    we have indicated previously, that the veteran's subsequent
    recitation of his symptoms during service is more detailed
    than the symptoms recorded in the service medical records.
    History provided by the veteran subsequent to service is not
    to be dismissed solely on that basis.  38 C.F.R. �
    3.304(b)(2).  We do not conclude that the veteran's
    recounting of his inservice symptoms is so much at variance
    with what is documented as to reject it as unreliable.  In
    this connection, we find some suggestion in the record that
    the "seizure" symptomatology in service might have been
    manifestations of multiple sclerosis.  See Dr. Pearce's
    statement and Dr. Putman's comments of March 29, 1990, in
    this regard.

    The remaining obstacle to the veteran's claim is the June
    1992 opinion of the independent medical expert in which
    that physician stated that the "first unequivocal evidence
    as to the first symptom or sign of multiple sclerosis" was
    in December 1985.  The Paralyzed Veterans of America, Inc.,
    has attacked this determination as imposing an improper
    evidentiary burden on the veteran because the statute
    (38 U.S.C. � 5107(b)) only requires that the evidence be in
    approximate balance for the veteran to prevail.  The
    veteran, it is argued, need only raise a reasonable doubt
    about the onset of multiple sclerosis.  A manifestation of
    multiple sclerosis after the statutory presumptive period
    does not preclude a finding of direct service incurrence.
    38 C.F.R. � 3.303(d); Douglas v. Derwinski, 2 Vet.App. 103
    (1992).  For the reasons set forth in the preceding
    paragraphs and because the medical opinions linking multiple
    sclerosis to service predominate in the record, we decide
    for the veteran.

                                ORDER

    Entitlement to service connection for multiple sclerosis is
    granted.

                     BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

         C. P. RUSSELL                     BETTINA CALLAWAY

                         JACK W. BLASINGAME

       JOHN J. CASTELLOT, M.D.           S. A. DURKIN

                           R. E. SULLIVAN

    NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C. � 7266, 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 (see sec. 402 of the Veterans' Judicial Review Act
    (Pub. L. 100-687)).  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.

    ADDENDUM:

    Pursuant to 38 U.S.C. � 7103(a) (1992) the Chairman ordered
    reconsideration in this case.  Upon reconsideration, the
    members of an expanded section of the Board did not agree.

    38 U.S.C. � 7103(b) (1992) provides that the decision of a
    majority of the members of the expanded section shall
    constitute the final decision of the Board.  The majority of
    the members of the expanded section have voted to grant the
    relief sought on appeal.  Accordingly, the benefit sought on
    appeal is granted.

    ROGER K. BAUER
    Acting Chairman


text: The appeal is granted.

text:
92 Decision Citation: BVA 92-09222

 Y92
                          BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    DOCKET NO.  88-52 082       )    DATE
                                )
    (RECONSIDERATION)           )
                                )

                              THE ISSUE

    Entitlement to payment of accrued benefits.

                           REPRESENTATION

    Appellant represented by:  The American Legion

                       ATTORNEY FOR THE BOARD

    D. C. Spickler, Counsel

                            INTRODUCTION

    This matter originally came before the Board of Veterans'
    Appeals (Board) on appeal from an August 1988 determination
    of the New Orleans, Louisiana, Department of Veterans
    Affairs (VA) Regional Office (RO).  The veteran served on
    active duty in the Armed Forces on an essentially continual
    basis between August 1942 and April 1957, and died on
    June 24, 1988.  The appellant, the veteran's widow, filed a
    notice of disagreement, received by the RO on August 29,
    1988, with the August 1988 determination.  The statement of
    the case was issued on September 29, 1988, and the
    substantive appeal was received by the RO on October 11,
    1988.  Thereafter, the appeal was certified to the Board for
    appellate review, and was received by the Board on
    October 31, 1988.  The appeal was docketed on November 14,
    1988, and the case was then referred to the appellant's
    representative, The American Legion, for review.  That
    organization submitted additional written argument to the
    Board on January 6, 1989.

    Subsequently, following a review of the record, the Board
    entered a decision on April 21, 1989.  In October 1989, the
    appellant, through her representative, requested
    reconsideration of that decision.  Reconsideration of the
    April 21, 1989, decision was ordered by the authority
    granted to the Chairman in 38 U.S.C. � 7103 (1991).  The
    case was then referred to the appellant's representative,
    The American Legion, for additional review and the
    presentation of argument on reconsideration.  That
    organization submitted additional written argument to the
    Board on March 14, 1991.  The case is now before an expanded
    reconsideration section of the Board for review.  This
    decision by the reconsideration section replaces the
    decision of April 21, 1989, which is hereby vacated, and is
    the final decision of the Board.

                 CONTENTIONS OF APPELLANT ON APPEAL

    The appellant and her representative essentially contend
    that the veteran, by submitting a claim for a temporary
    total disability evaluation and an increased schedular
    evaluation for his service-connected disability in April
    1988, effectively waived his right to receive retirement pay
    as provided by 38 C.F.R. � 3.750(c) (1991).  Therefore, they
    argue that the veteran was entitled to benefits which were
    due and unpaid at the time of his death, in an amount
    representing the difference between his military retirement
    pay and the amount payable for disability compensation at
    the 100 percent rate, effective from March 21, 1988.  They
    maintain that it was the veteran's intent to apply for a
    resumption of compensation benefits which had been
    previously discontinued by his prior election to receive
    military retirement pay.  Thus, in substance, it is argued
    that the claim for resumption of entitlement to compensation
    constituted an "application for compensation" within the
    meaning of 38 C.F.R. � 3.750(c), thereby effecting a waiver
    of retirement pay and permitting payment of VA compensation
    benefits.

                        DECISION OF THE BOARD

    For the reasons and bases hereinafter set forth, it is the
    decision of the Board that the record supports a conclusion
    that the veteran's April 1988 claim was an application for
    compensation which constituted a waiver of his retired pay
    and which was pending at the time of his death, and that the
    benefits due and unpaid on the basis of that claim should
    thus be considered as an accrued amount that can be paid to
    the appellant.

                          FINDINGS OF FACT

    1.  Effective November 16, 1984, service connection was
    established for various disabilities, including heart
    disease, and an 80 percent combined service-connected
    disability rating was assigned.

    2.  In a statement received by the VA on March 1, 1985, the
    veteran declared his election to receive military retirement
    pay in lieu of VA compensation benefits and, in May 1985,
    the RO took action to discontinue payment of VA compensation
    benefits based on the veteran's election to receive military
    retirement pay in lieu thereof.

    3.  In a statement submitted to the VA in April 1988, the
    veteran reported that he had undergone coronary bypass
    surgery in March 1988 for his service-connected heart
    disease, and he further stated, "I am applying for 100 %
    during the 3 months' recovery & 100 in the future."

    4.  A rating decision dated June 29, 1988, several days
    following the veteran's death on June 24, 1988, assigned a
    temporary total disability rating based on convalescence for
    the period extending from March 21, 1988, to April 30, 1988,
    and a 100 percent schedular evaluation for the veteran's
    service-connected heart disease, effective from May 1,
    1988.

    5.  Thereafter, in July 1988, the appellant, the deceased
    veteran's widow, filed an application for benefits,
    including an application for payment of accrued benefits.

                         CONCLUSIONS OF LAW

    1.  The veteran's April 1988 claim was an application for
    compensation which constituted a waiver of his retired pay
    and which was pending at the time of his death in June
    1988.  38 U.S.C. � 5107 (1991); 38 C.F.R. �� 3.1(p), 3.4(a),
    3.750(c) (1991).

    2.  As the veteran was entitled to periodic monetary
    benefits based upon a pending claim at the time of his
    death, there are accrued benefits which can be paid to the
    appellant.  38 U.S.C. � 5121 (1991); 38 C.F.R. �� 3.401(e),
    3.750 (1991).

           REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

    The veteran was retired from service for permanent physical
    disability in 1957.  He did not file a claim for
    compensation benefits with the VA.  His initial claim
    appears to have been filed in November 1984, and on the
    application form, he noted that he was receiving retirement
    pay from the Air Force.  The form used (VA Form 21-526)
    contained a preprinted statement that the "Filing of this
    application constitutes a waiver of military retirement pay
    in the amount of any VA compensation...."  Subsequently, a
    February 1985 rating action awarded the veteran a combined
    80 percent disability evaluation, effective from the date of
    his claim.  He was informed of his award by a March 11,
    1985, letter, which also advised him that payment of VA
    compensation was being "withheld" for the period from
    December 1984 through March 1985 because he was in receipt
    of retired pay.  The veteran was not informed that he had to
    file a waiver to receive the compensation.  Indeed, by
    virtue of his November 1984 claim, the waiver was in effect,
    pursuant to 38 C.F.R. � 3.750(c).  Actual payment was being
    withheld not because the veteran had not waived his retired
    pay, but merely because the RO needed to inform the service
    department of the waiver and determine how much he had
    received in service department retired pay in order that the
    amount of retired pay could be subtracted and thus prevent
    double payment creating an overpayment.

    A subsequent award action of May 1985 was then required to
    terminate the withholding action and reduce the veteran's
    award to zero, because the veteran contacted the VA and
    specifically requested that the waiver provision of his
    initial claim be disregarded as he wanted to draw his
    military retired pay.  It is clear that he never received
    any money from the VA based upon his 1984 claim.  It is
    equally clear, in our view, that the veteran was aware that
    a claim to the VA included a waiver of military retired
    pay.

    The term "compensation" is, in VA terminology, a very
    specific word of art which refers to benefits awarded for a
    service-connected disability.  Pursuant to 38 C.F.R.
    � 3.4(a) (1991), the term means a monthly payment made by
    the VA to a veteran because of a service-connected
    disability.  The term also has a more general, and more
    widely recognized, meaning of monetary benefits due.  Since
    the veteran had previously been rated as service connected,
    his April 1988 statement certainly could not be construed as
    a claim for service-connected disability.  However, it is
    clear that the claim was, in the broader sense, a claim for
    compensation.  While 38 C.F.R. � 3.750 does not make it
    clear which meaning was intended, it must be presumed to
    encompass either meaning, and thus his statement was a claim
    for compensation.  This interpretation is supported by the
    fact that the veteran had never received VA monetary
    benefits and was not receiving them at the time he filed his
    April 1988 claim.  Although he phrased his statement in
    terms of a total rating, such a rating would have no meaning
    per se.  The implicit meaning that he desired compensation
    consistent with the 100 percent rating is clear.

    It is our view that, by virtue of his previous
    correspondence, the veteran reasonably could have understood
    that his April 1988 claim was complete and adequate to
    initiate the waiver procedure necessary to commence the
    payment of VA benefits, and we conclude that such an
    understanding is consistent with a reasonable interpretation
    of the applicable regulation.  Since no compensation was
    being paid, there is no reason to construe the veteran's
    claim as a claim for an increase in compensation (rating),
    as there were no previous payments which had been
    discontinued.  Therefore, affording the veteran the benefit
    of the doubt pursuant to 38 U.S.C. 5107(b), we conclude that
    his April 1988 claim was an application for compensation
    which operated as a waiver of his retired pay.  38 C.F.R.
    �� 3.1(p), 3.4(a), 3.750(c).  The claim was pending at the
    time of his death and, thus, the benefits due and unpaid on
    the basis of the claim should properly be considered as an
    accrued amount which can be paid to his widow, the current
    appellant.  38 U.S.C. � 5121; 38 C.F.R. �� 3.401(e), 3.750.

                                ORDER

    The appeal is granted.

                     BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    E. M. KRENZER/Dissenting      LAWRENCE M. SULLIVAN/Dissenting

                        C. D. ROMO/Dissenting

    I. S. SHERMAN/Dissenting              JAMES R. ANTHONY

                          ROBERT D. PHILIPP

      THOMAS J. DANNAHER                 WARREN W. RICE

                            FRANK TALBOT

                                (CONTINUED ON NEXT PAGE)

      STEPHEN A. JONES               CHARLES E. HOGEBOOM

                          WAYNE E. BRAEUER

                               DISSENT

    We, the undersigned, recognize that the resolution of the
    issue for consideration rests upon interpretation of
    material which is not clear.  The decision above which has
    been reached after sincere and conscientious consideration
    by the majority panel rests upon a broad interpretation of
    the laws and regulations cited and the documentation
    contained in the record.  We respectfully disagree with that
    decision.

    Our reading of 38 C.F.R. � 3.750(c) leads to our conclusion
    that "application for compensation," within the meaning of
    the cited regulation, refers to a request for a
    determination of initial entitlement to compensation.  The
    veteran's April 1988 claim was a claim for an increase in
    the evaluation to be assigned for his already established
    service-connected disability.  Therefore, in our view, the
    April 1988 claim was not an "application for compensation"
    so as to constitute a waiver of retirement pay and a
    reelection of VA compensation benefits.

    We believe that the language employed by the veteran in his
    April 1988 statement was insufficient to constitute a
    specific reelection of VA compensation benefits.  As the
    veteran had previously established entitlement to
    compensation, and since his April 1988 claim was for an
    increased rating, we would interpret the April 1988
    communication as a request for a higher disability rating
    and not a specific request for a determination of
    entitlement to compensation.  Therefore, it is our view that
    the April 1988 statement should not be construed as a
    reelection of compensation benefits.  Accordingly, we would
    conclude that there was no reelection of compensation of
    record at the time of the veteran's death.  It would follow
    that no compensation benefits were due and unpaid at the
    time of death and, thus, that no accrued benefits would be
    payable.

    The Findings of Fact set forth above are essentially
    correct.  However, based upon those factual findings, the
    legal conclusion should be:

             As no reelection of compensation was of
             record at the time of the veteran's death
             in June 1988, the veteran was not
             entitled to VA compensation benefits
             which were due and unpaid at the time of
             his death and, thus, no accrued benefits
             are payable.  38 U.S.C. � 5121; 38 C.F.R.
             �� 3.1(p), 3.160(f), 3.401(e), 3.750.

          C. D. ROMO                    LAWRENCE M. SULLIVAN

          E. M. KRENZER                  IRIS S. SHERMAN

    NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C. � 7266 (1991),
    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 (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.

                                  (CONTINUED ON NEXT PAGE)
    ADDENDUM:

    Pursuant to 38 U.S.C. � 7103(a) (1991) (formerly 38 U.S.C.
    � 4003(a)), the Chairman ordered reconsideration in this
    case.  Upon reconsideration, the members of an expanded
    section of the Board did not agree.

    38 U.S.C. � 7103(b) (1991) (formerly 38 U.S.C. � 4003(b))
    provides that the decision of a majority of the members of
    the expanded section shall constitute the final decision of
    the Board.  The majority of the members of the expanded
    section have voted to grant the relief sought on appeal.
    Accordingly, the benefit sought on appeal is granted.

    ROGER K. BAUER
    Acting Chairman


disposition: denied

condition: psychiatric

condition: arthritis

text:
92 Decision Citation: BVA 92-23327

 Y92
                          BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    DOCKET NO.  89-42 874       )    DATE
                                )
                                )
                                )

                             THE ISSUES

    1.  Entitlement to service connection for an acquired
    psychiatric disorder, including post-traumatic stress
    disorder (PTSD).

    2.  Entitlement to service connection for tubercular
    arthritis of multiple joints.

                           REPRESENTATION

    Appellant represented by:  Bureau of Veterans Services,
                               Maine

                    WITNESS AT HEARING ON APPEAL

    The veteran

                       ATTORNEY FOR THE BOARD

    M. W. Greenstreet, Counsel

                            INTRODUCTION

    The veteran had active military service from May 1963 to
    February 1965.

    In 1984 and 1986 rating actions, the Department of Veterans
    Affairs (VA) Regional Office (RO) in Togus, Maine, denied
    the veteran's claim for service connection for an acquired
    psychiatric disorder.  The veteran was notified of those
    rating actions and did not appeal.

    In 1988, the veteran presented evidence to reopen his claim
    for service connection for an acquired psychiatric disorder,
    including PTSD, and he has appealed from a June 1988 rating
    action by the RO which denied the claim.  The RO received
    the veteran's notice of disagreement in August 1988, and
    continued the denial of service connection in a March 1989
    decision.  In May 1989, the RO also denied service
    connection for tubercular arthritis of multiple joints.  It
    issued a statement of the case in May 1989, and it received
    the veteran's substantive appeal in June 1989.

    In August 1989, the veteran gave testimony in support of his
    claim at a hearing before a VA hearing officer at the RO.

    When this case first came before the Board of Veterans
    Appeals (Board) in March 1990, it was remanded for further
    evidentiary development.  The RO completed, in part, that
    development, and the case was returned to the Board, where
    it was docketed in April 1991.  The Board again remanded the
    case in June 1991 for evidentiary development, and it was
    returned to the Board and docketed in December 1991.

    With respect to the issue of service connection for an
    acquired psychiatric disorder, our review shows that the
    evidence presented by the veteran to reopen his claim is
    relevant and probative, and that there is at least a
    reasonable possibility that consideration of the new
    evidence, when viewed in the context of all the evidence,
    would change the outcome of this case.  Colvin v. Derwinski,
    1 Vet.App. 171, 174 (1991); Smith v. Derwinski, 1 Vet.App.
    178, 179 (1991).  Therefore, we find that the veteran's
    claim for service connection for an acquired psychiatric
    disorder is reopened, and we will review it on the basis of
    all the evidence of record.

                 CONTENTIONS OF APPELLANT ON APPEAL

    The veteran contends that PTSD was incurred during or as a
    result of his active military service; therefore, the RO
    erred in denying him service connection for that
    disability.  He avers that he experienced a number of
    stressors in Vietnam, including having his plane attacked on
    landing in Vietnam at Ton Son Nhut Airport, seeing a
    mutilated beggar, attending the funeral of a tribesman
    mutilated and killed by Vietcong, having malaria and
    tuberculosis, seeing a friend wounded on landing at Ton Son
    Nhut Airport, witnessing a monk's self-immolation by fire,
    being subjected to constant mortar attacks and ambushes at
    Da Lat or Pleiku, and helping to clean up and bury the dead
    at a village overrun by Vietcong.  The veteran also reports
    that it was very stressful for him to operate electrical
    generators at a camp guarded by Vietnamese.  He emphasizes
    that, in view of his combat experiences, his account of his
    service in Vietnam should be accepted as sufficient evidence
    of a stressor under 38 C.F.R. � 3.304 (1991).  As a result
    of his stressors, he avers that he experiences symptoms
    consistent with the diagnosis of PTSD, such as rage,
    depression, anxiety, flashbacks, social withdrawal,
    inability to hold a job and nightmares.  He emphasizes that
    VA physicians have diagnosed PTSD on a number of occasions,
    and that he has been awarded disability benefits by the
    Social Security Administration.

    In the alternative, the veteran asserts that he has a
    neurosis or depressive disorder which is proximately due to
    or the result of his service-connected right knee disorder.

    The veteran also contends that service connection is
    warranted for tubercular arthritis of multiple joints.  He
    avers that his many joint problems cannot be dissociated
    from his service-connected tubercular infection of the right
    knee, and he argues that the medical literature supports his
    position.

                        DECISION OF THE BOARD

    In accordance with the provisions of 38 U.S.C.A. � 7104
    (West 1991), the Board has considered all of the evidence in
    the veteran's claims file and concludes for the following
    reasons and bases that the greater weight of the evidence is
    against his claims for service connection for an acquired
    psychiatric disorder and tubercular arthritis of multiple
    joints.

                          FINDINGS OF FACT

    1.  The VA has obtained all evidence necessary for an
    equitable disposition of the veteran's appeal.

    2.  An acquired psychiatric disorder did not begin during
    the veteran's active military service.

    3.  During his military service, the veteran did not
    experience an event outside the range of usual human
    experience which would be markedly distressing to almost
    anyone.

    4.  The veteran does not have PTSD as a consequence of his
    military service.

    5.  The veteran does not have a chronic acquired psychiatric
    disorder caused by his service-connected right knee
    disability.

    6.  Other than his service-connected right knee disorder,
    the veteran does not have tubercular arthritis of any joint.

                         CONCLUSIONS OF LAW

    1.  An acquired psychiatric disorder, including PTSD, was
    neither incurred in nor aggravated by the veteran's active
    military service.  38 U.S.C.A. �� 1110, 1131, 5107(a) (West
    1991).

    2.  An acquired psychiatric disorder is not proximately due
    to or the result of a service-connected disability.
    38 U.S.C.A. � 5107(a) (West 1991); 38 C.F.R. � 3.310(a)
    (1991).

    3.  Claimed tubercular arthritis of multiple joints was
    neither incurred in nor aggravated by the veteran's active
    military service, and it is not proximately due to or the
    result of the veteran's service-connected right knee
    disorder.  38 U.S.C.A. �� 1110, 1131, 5107(a) (West 1991);
    38 C.F.R. � 3.310(a) (1991).

           REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

    With respect to the veteran's claim for service connection
    for an acquired psychiatric disorder, the evidence shows
    that he served in Vietnam, that he reports he was exposed to
    stressors during that service, and that PTSD has been
    diagnosed.  In view of these facts, we find that his claim
    is plausible; therefore, it is well grounded.  Murphy v.
    Derwinski, 1 Vet.App. 78, 81-82 (1990); 38 U.S.C.A.
    � 5107(a) (West 1991).

    As the veteran's claim is well grounded, we must also
    determine if the VA has a further obligation to assist him
    in the development of his claim under 38 U.S.C.A. � 5107(a)
    (West Supp. 1992).  The VA has invited him to provide
    details of specific stressors which occurred during his
    military service, and he has also testified at an August
    1989 hearing at the RO.  Based on his responses to the VA's
    queries and his hearing testimony, the VA has attempted to
    develop evidence about the alleged stressors; however, as
    noted by the Director of the United States Army and Joint
    Services Environmental Support Group in an August 1991
    letter, the veteran has not provided the "who, what, where
    and when" of the alleged stressors as are necessary to
    conduct meaningful research to corroborate those events.
    The VA's duty to assist is not a one-way street, and it does
    not place an onerous or impossible burden on the veteran to
    provide straightforward facts such as dates, names and
    places.  Wood v.Derwinski, 1 Vet.App. 190, 193 (1991).  In
    view of the general nature of the information which he has
    provided, we find that the VA has exhausted every reasonable
    avenue of research and that further development regarding
    his stressors is neither feasible nor warranted.
    38 C.F.R. � 4.126 (1991) provides that psychiatric disorders
    will be diagnosed in accordance with the American
    Psychiatric Association's Diagnostic and Statistical Manual
    of Mental Disorders, 3rd ed., (DSM-III), and a diagnosis not
    in accord with that manual is not acceptable for rating
    purposes.  The Quick Reference to the Diagnostic Criteria
    From DSM-III-R provides that an essential diagnostic
    criterion for PTSD is the existence of a recognizable
    stressor.  Accordingly, we will not grant service connection
    for PTSD based on a diagnosis unsupported by credible
    evidence of an inservice stressor outside the range of usual
    human experience and which would be markedly distressing to
    almost anyone.  Wood, 1 Vet.App. at 193.

    The question of whether a specific event reported by a
    veteran as a stressor actually occurred is a question of
    fact for the Board to decide, involving as it does factors
    as much historical as psychological.  Although a number of
    health care professionals have accepted the veteran's
    account of his experiences in Vietnam as truthful, the Board
    is not required to do the same, charged as it is with the
    duty to assess the credibility and weight to be given the
    evidence. J. Wilson v. Derwinski,    Vet.App.   , No. 91-169
    (U.S. Vet. App. July 22, 1992).   While the conclusion of an
    examining VA psychiatrist is a medical conclusion which the
    Board cannot ignore or disregard, Willis v. Derwinski,
    1 Vet.App. 66, 70 (1991), the Board is free to assess the
    credibility of the veteran's testimony and the medical
    evidence that he has submitted, L. Wilson v. Derwinski,
    2 Vet.App. 16, 20 (1991), and the United States Court of
    Veterans Appeals has held that the Board must explicitly
    determine the credibility of a veteran's testimony when it
    is one of the bases for the benefit which he seeks.  Ashmore
    v. Derwinski, 1 Vet.App. 580, 583 (1991); 38 U.S.C.A.
    � 7104(d)(1) (West 1991).  Moreover,the VA is not required
    to accept a bald assertion made by a veteran as to service
    incurrence, Smith v. Derwinski, 2 Vet.App. 137, 140 (1992),
    and the Board is also free to discount the credibility of a
    physician's statement.  Sanden v. Derwinski, 2 Vet.App. 97,
    101 (1992).

    As to the reported stressors, the veteran's service
    personnel records show that he served in Vietnam from
    September 1963 to May 1964, before the official entry of the
    U.S. into combat in August 1964.  His principal duty was
    powerman and he was assigned to the 362nd Signal Company of
    the 39th Signal Battalion.  The order of battle shows that
    unit's location was Da Lat (Shelby L. Stanton, The Vietnam
    Order of Battle, 214 (1981); however, medical records show
    that the veteran may have been located at Pleiku, and he has
    stated that he spent most of his time in Vietnam at Pleiku.
    His awards and decorations include the Armed Forces
    Expeditionary Medal.

    The veteran's service medical records do not show
    complaints, findings or treatment for an acquired
    psychiatric disorder, and he did not report any psychiatric
    abnormalities on a Report of Medical History form completed
    and signed by him in December 1964.  A medical board
    examination conducted at that time also did not reveal any
    psychiatric abnormalities.  The first contemporaneous
    clinical evidence of an acquired psychiatric disorder dates
    from 1981, when he complained of easy emotional upset and
    atypical depression was diagnosed.

    In assessing the probative value of the medical evidence and
    the credibility of the veteran's statements and testimony,
    we note initially that in November 1983 it was reported that
    the veteran was in no actual combat in Vietnam, but had to
    fire his rifle once at two villages.  At that time, he also
    stated that he was not under mortar fire at Pleiku.
    Although he did see a few dead or wounded men there, none of
    them were his friends.  In May 1984, it was again reported
    that he was in no combat, and in June 1985, he reported that
    he saw dead and wounded men in Vietnam.

    At his August 1989 hearing, the veteran stated that while he
    was at Pleiku, "[W]e never really had any incoming rounds
    there."  Transcript at page 5.  As to stressors, he
    testified that his plane was shelled as he landed at Ton Son
    Nhut, that he helped to clean up bodies after a Vietcong
    attack on a Montagnard village, that he was fired on by a
    sniper while making a garbage run, that he attended a
    gruesome village funeral, that he almost died with malaria,
    and that he saw a badly mutilated beggar.  In addition, he
    stated that he was very fearful while running his generators
    because they were so loud that he would have been unable to
    hear an enemy attack.

    In contrast with his hearing testimony that he hauled
    sandbags around Saigon during his first eight weeks in
    Vietnam and that he was not subjected to sniper fire or
    other attacks at that time (transcript at pages 7 and 8), he
    reported in a February 1991 letter that he ran generators in
    Saigon as well and that "[T]he V.C. were constantly trying
    to knock out my generators!"   While he testified at his
    hearing that he spent about two weeks at Nha Trang after
    leaving Saigon and was then sent to Pleiku (transcript at
    pages 8 and 9), after reviewing The Vietnam Order of Battle,
    he stated that he may have been in Da Lat instead, although
    he could not remember being there.  In any event, he
    reported in his February 1991 letter that whatever base he
    was sent to after Saigon was "[u]nder constant ambush and
    mortar fire by the V.C.," contradicting his November 1983
    report that he was not under mortar fire and his hearing
    testimony that he was not shelled.

    Moreover, in his February 1991 letter the veteran reported
    that on April 10, 1964, he was informed that the village
    which he used to visit had been attacked and burned
    completely down by Vietcong during the previous night.  He
    also stated that all of the villagers were either killed or
    captured and that he volunteered to assist in the clean up.
    When he arrived at the village he found that there were
    corpses everywhere and that some of the children had been
    burned to death.  However, his medical records show that on
    April 9, 1964, he was admitted to the 8th Field Hospital in
    Nha Trang, many, many miles away from either Pleiku or Da
    Lat, and that he was transferred from that hospital to the
    Philippines Islands and the United States without ever
    returning to his unit.  Therefore, he could not have been at
    the village at the time he so specifically reported in his
    letter.  Although he has submitted photos of Vietnamese
    villagers and of several burned village houses, the
    photographs show Vietnamese children standing beside the
    houses and a large portion of the village appears to be
    intact, contrary to his statement that it was completely
    destroyed and everyone killed or captured.
    As to the other alleged stressors, the veteran stated that
    he saw dead and wounded at Pleiku or Da Lat, that he
    witnessed a Buddhist monk burn himself to death in Saigon,
    that his plane was attacked on landing at Ton Son Nhut
    Airport and that he was fired on by snipers during garbage
    runs at Pleiku.  The veteran's account of these experiences
    was referred to the United States Army and Joint Services
    Environmental Support Group in July 1991.  The Group replied
    that it was unable to document any of the combat incidents
    reported by the veteran or those incidents involving
    civilians.  As to the monk's self-immolation, the Board
    takes notice that Buddhist monks did commit public suicide
    by fire prior to the coup which removed Ngo Diem from power
    in 1963; however, there is no direct evidence, apart from
    the veteran's own statements, that he witnessed one of those
    suicides, and we note that the film and photographs of those
    suicides were widely publicized.  Likewise, his claim that
    he saw a mutilated tribesman and a badly scarred beggar are
    unsubstantiated.

    While the veteran has also reported that his in-service
    bouts of malaria and tuberculosis of the knee constituted
    stressors, the service medical records do not show that
    those illnesses were life threatening or that his condition
    was considered critical.  As to his claim that operating
    loud generators was a stressor, the evidence does not show
    that he was attacked while working in that capacity or that
    his duties otherwise exposed him to more than the ordinary
    stressful environment of wartime service.  Wood, 1 Vet.App.
    at 193.

    We have also considered the several lay statements submitted
    on his behalf.  While a layperson can provide an eyewitness
    account of a veteran's symptoms, Espiritu v. Derwinski,
    Vet.App.   , No.90-452 (U.S. Vet. App. June 19, 1992), those
    statements do not shed any light on the veteran's
    experiences in the war or otherwise demonstrate that he
    experienced a stressor in the military when considered in
    conjunction with all the evidence.

    To grant service connection, the evidence must "establish
    that a particular injury or disease resulting in disability
    was incurred coincident with service....This may be
    accomplished by affirmatively showing inception or
    aggravation during service."  38 C.F.R. � 3.303.  While
    disabling conditions for which the veteran seeks service
    connection must be considered on the basis of the place,
    types and circumstances of service, the regulations do not
    create a presumption that the veteran was exposed to a
    stressor because he served in Vietnam during the period of
    hostilities there.  Moreover, while the Board cannot ignore
    testimony because the veteran is an interested party,
    Cartwright v. Derwinski, 2 Vet.App. 24, 25 (1991), in the
    absence of combat status, a veteran's testimony alone is not
    sufficient to establish the existence of combat stressors.
    Hill v. Derwinski,     Vet.App.   , No. 91-865 (U.S. Vet.
    App. June 22, 1992).

    Although, the Board has reviewed the evidence in the light
    most favorable to the veteran, his statements about his
    experiences during the war are internally inconsistent and
    are either not independently supported or are, in fact,
    contradicted by the available objective evidence.  For these
    reasons, we find that that his statements about his alleged
    stressors are not credible and that the much greater weight
    of the evidence shows that he did not experience a stressor
    during his military service.  Therefore, the diagnoses of
    PTSD are not tenable and service connection for that
    disability is denied.

    The veteran avers, in the alternative, that he developed an
    acquired psychiatric disorder which is proximately due to or
    the result of his service-connected right knee disorder,
    warranting service connection on a secondary basis.  The
    evidence shows that in May 1983, he stated that he had
    experienced depression for about five years and that he felt
    it was due to his physical problems.  An adjustment disorder
    with depressed mood and post-traumatic stress disorder were
    diagnosed.  On examination in November 1983, he dated his
    depression to Vietnam, but stated that it had been much
    worse during the two years following a right knee
    operation.  History of recurrent major depressive episodes
    and chronic post-traumatic stress disorder with prominent
    depressive features were diagnosed.  In May 1984, a board of
    three VA psychiatrists concluded that the veteran had
    atypical depression as a direct consequence of his right
    knee disorder.  One of the three psychiatrists reached much
    the same conclusion on examination in July 1985, when he
    diagnosed dysthymic disorder and generalized anxiety
    disorder which he believed were most likely due to the
    veteran's right knee disability.

    However, on referral of the claims folder to the Director of
    the VA's Mental Health and Behavioral Sciences Services in
    April 1986, the conclusion was that the veteran's
    psychiatric disorder was not directly related to his right
    knee disability.  The sole psychiatric diagnosis was
    post-traumatic stress disorder, and that diagnosis was
    repeated during the veteran's hospitalization in 1986 and
    1988.  In view of the Director's conclusion that the veteran
    does not have an acquired psychiatric disorder secondary to
    his knee disorder, and absent any findings of a psychiatric
    disorder secondary to the knee disorder during the veteran's
    months-long hospitalizations in 1986 and 1988, we conclude
    that the greater weight of the evidence does not show that
    service connection for a chronic acquired psychiatric
    disability is warranted on a secondary basis.

    We emphasize that we have attached "extra weight" to the
    conclusions of the physicians who treated the veteran during
    his hospitalizations from January to May 1986 and from
    February to April 1988, as their assessment of his
    psychiatric state is much more probative than the findings
    at the single board of three examination in 1984 and the
    single examination in July 1985.  Lehman v. Derwinski,
    1 Vet.App. 339,343 (1991).  While we concluded earlier in
    our discussion that PTSD was not a tenable diagnosis since
    the veteran had not experienced a stressor, that conclusion
    does not in any way preclude assigning due probative weight
    to the conspicuous absence of any findings or diagnoses
    during the 1986 and 1988 hospitalizations relating an extant
    psychiatric disorder to the veteran's right knee disability
    and the Director's conclusion that the veteran does not have
    a psychiatric disorder secondary to the right knee disorder.

    Turning to the veteran's claim for service connection for
    tubercular arthritis of multiple joints, we find that it is
    plausible; therefore, it is well grounded within the meaning
    of 38 U.S.C. � 5107(a).  We are also satisfied that all of
    the relevant facts have been properly developed to the
    extent possible, and that no useful purpose would be served
    by an additional remand of this case.

    The evidence shows that the veteran developed a tuberculosis
    infection of his right knee around the beginning of 1964 in
    Vietnam.  He was treated with antibiotics, and that
    treatment continued for three years.  In April 1965, it was
    reported that tuberculosis was inactive, and in October 1972
    a physician stated that it was very difficult for him to
    accept a diagnosis of tuberculosis.  In July 1985, a VA
    orthopedist diagnosed status post alleged tuberculosis
    arthritis of the right knee with resultant degenerative
    joint disease of the knee.  On VA examination in January
    1988, the examiner noted that the veteran worried that
    swelling in his ankles might be tuberculosis; however, he
    concluded that the veteran's joint problems, with the
    exception of the right knee, were not related to the
    inservice tuberculosis, and he also found that there was no
    evidence of any active tuberculosis at the time of the
    examination.  On examination in January 1989, multiple
    specimens of sputum, urine and bone marrow were obtained to
    culture for tuberculosis; however, the conclusion was that
    it was unlikely that there was tubercular involvement.

    In an April 1989 reply to a query from a VA adjudication
    officer, the Chief of the Ambulatory Care Service at the VA
    Medical Center at Togus, Maine, stated that the veteran's
    records had been reviewed and discussed with specialists in
    radiology, orthopedics, rheumatology and infectious
    diseases.  Their conclusion was that there was no evidence
    of polyarthritis, and certainly no evidence of tuberculosis
    polyarthritis associated with the service-connected
    tuberculosis of the right knee.  Although the veteran has
    submitted a great deal of textual material relating to
    tuberculosis and orthopedic disorders, he has not presented
    any positive medical evidence showing that he has tubercular
    polyarthritis.  In fact, the evidence demonstrates that
    extensive evaluation and testing since service have not
    demonstrated that the veteran has a tuberculosis infection
    of any type.  While we have considered his private
    physician's note of August 1, 1989, that note simply does
    not refer to tuberculosis and cannot be interpreted as
    supporting the veteran's claim.  Therefore, we find that
    service connection for claimed tubercular arthritis of
    multiple joints is clearly not warranted on either a direct
    incurrence basis or as secondary to service-connected
    tubercular arthritis of the right knee.  38 U.S.C.A.
    �� 1110, 1131 (West 1991); 38 C.F.R. � 3.310(a) (1991).

                                ORDER

    Service connection for an acquired psychiatric disorder,
    including PTSD, is denied.

    Service connection for tubercular arthritis of multiple
    joints is denied.

                     BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    WARREN W. RICE, JR. (DISSENTING        ROBERT D. PHILIPP
      IN PART)

                          FRANCIS F. TALBOT

                         DISSENTING IN PART

    I agree with my colleagues that service connection is not
    warranted for tubercular arthritis of multiple joints.  I
    disagree with their conclusion that service connection
    should not be established for PTSD.  While it is true that
    the veteran's service in Vietnam preceded America's official
    entry into hostilities against North Vietnam, clearly he was
    exposed to the ravages of war as evidenced by his
    correspondence, clinical history, sworn testimony and the
    photographs submitted with his representative's VA Form
    l-646 dated March 7, l99l.

    My colleagues base their conclusion that the veteran does
    not have PTSD on a finding that the veteran's claimed
    stressors have not been verified.  However, most of the
    stressful events described by the veteran are not the types
    of incidents which are verifiable, e.g., the witnessing of
    killed and maimed Montagnard villagers, the destruction of
    their homes, his helping to bury the Vietnamese dead, etc.
    The occasional sniper fire he reportedly experienced at
    Pleiku (Hearing transcript, p. 8) is also unlikely capable
    of verification.  To discredit the veteran's account of his
    experiences in Vietnam because he has failed to provide
    proof that they occurred, knowing that many of those
    incidents cannot be substantiated, is patently unfair.  The
    photograph numbered "5" shows the ceremony in which the
    veteran participated after his Montagnard tribesman friend
    had been murdered in March l964.  (Emphasis added)  The
    photograph numbered "6" is a clear, poignant image of the
    destruction of a Vietnamese village by the Viet Cong.  Is
    this not sufficient proof of a stressor?

    VA psychologists and psychiatrists have acknowledged the
    aforementioned stressors and have diagnosed the veteran as
    suffering from PTSD.  The VA is now treating the veteran for
    this mental disorder.  Also, significantly, in a memorandum
    dated April 30, l986, the Director of the Mental Health and
    Behavioral Sciences Service of the Department of Veterans
    Affairs reported that the veteran had PTSD.  The
    spokesperson for VA's Chief Medical Director stated that his
    opinion was based on a review of the veteran's records.  I
    find the opinions of competent VA mental health
    professionals and the assessment of the representative of
    the VA's chief medical officer to be very credible and
    probative evidence of the merit of the veteran's claim.  In
    fact, I find the overwhelming preponderance of the evidence
    of record to be so supportive of service connection for PTSD
    that I find the decision of my colleagues with respect to
    this claim to be implausible and, therefore, erroneous.

    Accordingly, I would substitute the following finding and
    legal conclusion for those previously cited:

                           FINDING OF FACT

    The veteran has PTSD as a result of his service in Vietnam.

                          CONCLUSION OF LAW

    PTSD was incurred in service.  38 U.S.C.A. �� 1131, 5107(a)
    (West l99l).

                         WARREN W. RICE, JR.

    NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
    1991), 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 (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.

    ADDENDUM:

    Decisions by a section of the Board shall be made by a
    majority of the members of the section.  The decision of the
    section is final unless the Chairman orders reconsideration
    of the case.  38 U.S.C.A. � 7103(a) (West 1991).  I have
    reviewed this decision and note that the majority of the
    members of the section have voted to deny the relief sought
    on appeal.  I have decided not to order reconsideration.
    Accordingly, the decision of the majority to deny the relief
    sought on appeal is final.

    ROGER K. BAUER
    Acting Chairman