judge_norm: JEFF MARTIN

condition: skin

text:
Citation Nr: 9813000
Decision Date: 04/27/98    Archive Date: 05/08/98

DOCKET NO.  96-35 528	)	DATE
	)
	)

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

THE ISSUES

1.  Whether new and material evidence has been received to
reopen the claim for entitlement to service connection for a
skin condition.

2.  Entitlement to service connection for a skin disorder
secondary to exposure to Agent Orange.

3.  Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently evaluated as 10 percent
disabling.

4.  Entitlement to an effective date prior to April 12, 1993,
for the award of service connection for post-traumatic stress
disorder.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

L. Jennifer Lane, Counsel

INTRODUCTION

The veteran had active service from August 1968 to August
1970.

In November 1992, the Regional Office (RO) notified the
veteran by letter that it had denied claims regarding post-
traumatic stress disorder and a skin condition.  The RO also
informed the veteran that he must submit new and material
evidence to reopen his claims for post-traumatic stress
disorder and a skin disorder.  He subsequently filed a timely
notice of disagreement with that decision; and a statement of
the case was issued, which addressed the issues of whether
new and material evidence had been received to reopen the
claims for entitlement to service connection for post-
traumatic stress disorder and a skin condition.  The veteran
then submitted a timely substantive appeal.  Thus, the
veteran perfected an appeal of the issue of whether new and
material evidence has been received to reopen the claim for
entitlement to service connection for a skin condition.  The
Board notes that the RO also denied service connection for a
skin disorder, specifically a fungus infection, secondary to
exposure to Agent Orange in a December 1994 rating decision.
Additionally, in a letter dated in December 1994 and a
supplemental statement of the case issued in December 1994,
the RO essentially informed the veteran of the laws and
regulations pertaining to service connection secondary to
Agent Orange exposure.

In January 1995, the RO granted service connection for post-
traumatic stress disorder and granted a 10 percent evaluation
for that disorder, effective April 12, 1993.  The veteran
also perfected an appeal of that decision, disagreeing with
the rating assigned to post-traumatic stress disorder and the
effective date of the award of service connection for that
disorder.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that service connection is
warranted for a skin disorder and that he was treated for
that disorder while in service.  According to the veteran,
the skin disorder affects his face, ears and feet.
Additionally, the veteran asserts that he has a skin disorder
due to exposure to Agent Orange while in Vietnam.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been received to reopen the claim for entitlement to
service connection for a skin disorder and that the veteran
has not met the initial burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim for entitlement to service
connection for a skin disorder secondary to exposure to Agent
Orange is well-grounded.

FINDINGS OF FACT

1.  The RO denied the veteran�s petition to reopen a claim
for entitlement to service connection for a skin disorder in
an unappealed rating decision in July 1987.

2.  Additional evidence received after the July 1987 rating
decision includes information which was of record in July
1987 or which is not relevant and probative to the issue of
entitlement to service connection for a skin disorder and
when viewed in the context of all the evidence does not
present a reasonable possibility of changing the outcome of
the case.

3.  No competent medical evidence is of record that would
establish that the veteran currently has a skin disorder
which is causally related to any exposure to herbicide agents
while serving in Vietnam.

CONCLUSIONS OF LAW

1.  The evidence received since the July 1987 rating
decision, denying a petition to reopen a claim for
entitlement to service connection for a skin disorder, is not
new and material; and the veteran's claim for entitlement to
service connection for that disorder is not reopened.
38 U.S.C.A. �� 5107, 5108, 7105 (West 1991); 38 C.F.R.
� 3.156(a) (1997).

2.  The veteran�s claim for entitlement to service connection
for a skin disorder secondary to exposure to Agent Orange is
not well grounded.  38 U.S.C.A. � 5107(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence

For reasons discussed below, the Board will address
separately the issue of whether new and material evidence has
been received to reopen the claim for entitlement to service
connection for a skin disorder, on a basis other than service
connection secondary to Agent Orange exposure, and the issue
of entitlement to service connection for a skin disorder
secondary to exposure to Agent Orange.

The Board also notes that entitlement to service connection
for a particular disability requires evidence of the
existence of a current disability and evidence that the
disability was incurred in or aggravated by service.
38 U.S.C.A. � 1110.  Service connection may also be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service.  38 C.F.R.
� 3.303(d).

In a rating decision dated in March 1986, the RO denied
service connection for a skin condition.  Additionally, notice
of that decision and of the right to appeal said decision was
sent to the veteran in May 1986.  The Board notes that the law
grants a period of one year from the date of the notice of the
result of the initial determination for initiating an appeal
by filing a notice of disagreement; otherwise, that
determination becomes final.  38 U.S.C.A. � 7105.  As a notice
of disagreement was not received from the veteran or his
representative within one year of the date of the May 1986
notice, the Board finds that the March 1986 rating decision is
final.  38 U.S.C.A. � 7105.

Reopening a claim for service connection benefits which has
been previously and finally disallowed requires that new and
material evidence be received since the last final
disallowance of that claim regardless of whether that last
final disallowance was based on the merits of the claim for
service connection or based on a determination that no new
and material evidence had been received to reopen the claim
since an even earlier final disallowance of the claim.  Evans
v. Brown, 9 Vet. App. 273 (1996); 38 U.S.C.A. � 5108;
38 C.F.R. � 3.156(a).

The Board also notes that new evidence is more than evidence
which was previously physically of record.  To be new
evidence, evidence must be more than cumulative.  Colvin v.
Derwinski, 1 Vet. App. 171 (1991).  Also, additional
evidence, which is presumed credible for the purposes of
evaluating whether evidence is new and material, must also be
relevant and probative.  Justus v. Principi, 3 Vet. App. 510
(1992); Smith v. Derwinski, 1 Vet. App. 178 (1991).

The evidence of record at the time of the July 1987 rating
decision included the service medical records and VA medical
records dated in the 1980�s.  The service medical records
show no treatment for a skin disorder affecting the veteran�s
ears, face or feet; and the separation medical examination
performed in July 1970 included a normal clinical evaluation
of the skin.  Additionally, a VA examination in October 1982
revealed that the veteran�s skin was normal.  According to a
VA outpatient treatment record dated in March 1986, the
veteran had onychomycosis of the toenail.

In October 1992, the veteran filed a petition to reopen the
claim for entitlement to service connection for a skin
condition.  The evidence received since the rating decision
which denied that claim includes VA medical records dated in
the 1980�s, before and after 1987, and 1990�s; and those
records show treatment for various skin disorders, including
onychomycosis, a rash in the ear and on the feet, tinea pedis
and a fungal infection of the ear.  Thus, the additional
records show that the veteran received treatment for skin
disorders many years after service, information of record at
the time of the July 1987 rating decision.

The additional VA medical records received since July 1987
also show a history and complaints of skin disorders since
1969; however, that evidence does not include any competent
evidence tending to link a current skin disorder to service
or the veteran�s history of skin complaints in service.
Additionally, evidence which is simply information recorded
by a medical examiner, unenhanced by any additional medical
comment by that examiner, as is the case here, does not
constitute competent medical evidence.  LeShore v. Brown, 8
Vet. App. 406, 409 (1995).  Moreover, the first competent
evidence tending to show the presence of a skin disorder
after service remains the 1985 VA outpatient treatment record
showing onychomycosis of the toenails, and that was of record
at the time of the July 1987 RO decision.

Therefore, the Board finds that evidence received since the
RO decision dated in July 1987 includes information which was
either of record at that time or information which is not
relevant and probative to the issue of entitlement to service
connection for a skin disorder and would not tend to change
the outcome of the July 1987 RO decision.  Therefore,
reopening the veteran�s claim for entitlement to service
connection for a skin disorder is not warranted; and the
petition to reopen that claim is denied.

The Board also notes that the veteran has not reported that
any evidence exits that if obtained would constitute new and
material evidence sufficient to reopen the claim for
entitlement to service connection for a skin disorder; and he
has not reported that any physician or other qualified health
care professional has diagnosed a skin disorder and related
any such disorder to service.  Furthermore, in a VA Form 21-
4138 received in November 1995, the veteran reported that he
had been treated for a skin condition at the VA Outpatient
Treatment Clinic in Milwaukee, Wisconsin, from 1980 to 1990
and the VA Outpatient Treatment Clinic in Miami, Florida,
since 1990; and the RO requested such records from those
facilities.  Under the circumstances, the VA has no further
duty to assist the veteran in developing potentially new and
material evidence in order to reopen the claim at issue.  See
Graves v. Brown, 8 Vet. App. 522 (1996).

II.  Service Connection for a Skin Disorder
Secondary to Exposure to Agent Orange

The Board notes that there is no final rating decision
denying service connection for a skin disorder secondary to
exposure to Agent Orange.  Therefore, the claim for
entitlement to service connection for a skin disorder on the
basis that such disorder is due to Agent Orange exposure is a
new claim and is not subject to the requirement that new and
material evidence be submitted to reopen a previously denied
claim.

Additionally, the Board notes that a disease associated with
exposure to certain herbicide agents listed in 38 C.F.R.
� 3.309 (1997) will be considered to have been incurred in
service under the circumstances outlined in this section even
though there is no evidence of such disease during the period
of service.  No condition other than one listed in 38 C.F.R.
� 3.309(a) will be considered chronic.  38 U.S.C.A. � 1101
(West 1991); 38 U.S.C.A. �� 1112, 1113, 1116 (West 1991 &
Supp. 1996); 38 C.F.R. � 3.307(a) (1997).

A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era and
has a disease listed at � 3.309(e) shall be presumed to have
been exposed during such service to an herbicide agent, unless
there is affirmative evidence to establish that the veteran
was not exposed to any such agent during that service.  The
last date on which such a veteran shall be presumed to have
been exposed to an herbicide agent shall be the last date on
which he or she served in the Republic of Vietnam during the
Vietnam era.  "Service in the Republic of Vietnam" includes
service in the waters offshore and service in other locations
if the conditions of service involved duty or visitation in
the Republic of Vietnam.  38 C.F.R. � 3.307(a)(6)(iii).

If a veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 C.F.R.
� 3.307(a)(6)(iii) are met, even though there is no record of
such disease during service, provided further that the
rebuttable presumption provisions of 38 C.F.R. � 3.307(d) are
also satisfied: chloracne or other acneform disease consistent
with chloracne, Hodgkin's disease, multiple myeloma, Non-
Hodgkin's lymphoma, acute and subacute peripheral neuropathy
that appears within weeks or months of exposure to an
herbicide agent and resolves within two years of the date of
onset, porphyria cutanea tarda, prostate cancer, respiratory
cancers (cancer of the lung, bronchus, larynx, or trachea),
and soft-tissue sarcoma (other than osteosarcoma,
chondrosarcoma, Kaposi�s sarcoma, or mesothelioma).  38 C.F.R.
� 3.309(e).

The diseases listed at 38 C.F.R. � 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne, porphyria cutanea tarda, and acute
and subacute peripheral neuropathy shall have become manifest
to a degree of 10 percent or more within a year, and
respiratory cancers within 30 years, after the last date on
which the veteran was exposed to an herbicide agent during
active military, naval, or air service.  38 C.F.R.
� 3.307(a)(6)(ii).

Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit recently determined that the
Veterans' Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542,
� 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a
veteran from establishing service connection with proof of
actual direct causation.  Combee v. Brown, 34 F.3d 1039
(Fed.Cir. 1994).  However, the Court has held that where the
issue involves medical causation, competent medical evidence
which indicates that the claim is plausible or possible is
required to set forth a well-grounded claim; that is, the
evidence must "justify a belief by a fair and impartial
individual" that the claim is plausible.  Grottveit v. Brown,
5 Vet. App. 91, 93 (1993); 38 U.S.C.A. � 5107(a).  If the
veteran has not submitted such a claim, the appeal fails as
to that claim, and the Board is under no duty to assist him
or her in any further development of that claim, since such
development would be futile.  38 U.S.C.A. � 5107(a) (West
1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990).

The three elements of a well grounded claim for service
connection benefits are: (1) evidence of a current disability
as provided by a medical diagnosis; (2) evidence of
incurrence or aggravation of a disease or injury in service
as provided by either lay or medical evidence, as the
situation dictates; and, (3) a nexus, or link, between the
inservice disease or injury and the current disability as
provided by competent medical evidence.  See Caluza v. Brown,
7 Vet. App. 498, 506 (1995); 38 C.F.R. � 3.303.  This means
that there must be evidence of disease or injury during
service, a current disability, and a link between the two.
Further, the evidence must be competent.  That is, the
presence of a current disability requires a medical
diagnosis; and, where an opinion is used to link the current
disorder to a cause during service, a competent opinion of a
medical professional is required.  See Caluza at 504.

The veteran has claimed service connection for a skin
disorder; and VA medical records dated in the 1980�s and
1990�s show that the veteran has been diagnosed with various
skin conditions, including onychomycosis, a rash in the ear
and on the feet, tinea pedis and a fungal infection of the
ear.  While skin disorders have been associated with exposure
to the chemical Agent Orange, there is no competent evidence
that the veteran has chloracne or other acneform disease
consistent with chloracne which was manifested to a
compensable degree within one year of his service in Vietnam.
Moreover, those skin disorders shown by competent evidence
have not been related to exposure to herbicide agents while
serving in Vietnam and are not included among the diseases
for which presumptive service connection on the basis of
Agent Orange exposure is warranted.

Thus, the claim for entitlement to service connection for a
skin disorder secondary to exposure to Agent Orange must be
denied because there is no medical opinion, or other
competent evidence, linking any skin disorder the veteran
currently has with Agent Orange exposure.  Thus, a direct
causal link between the veteran�s skin disorder and exposure
to Agent Orange used in Vietnam has not been demonstrated;
nor is presumptive service connection warranted for chloracne
or other acneform disease consistent with chloracne.
Therefore, the Board finds that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
entitlement to service connection for a skin disorder
secondary to exposure to Agent Orange is well-grounded.

Where the veteran has not met the burden of submitting a
well-grounded claim for service connection benefits, the VA
has no duty to assist him in developing facts pertinent to
his service connection claim.  38 U.S.C.A. � 5107.  Further,
if the veteran does not submit a well-grounded claim, the
appeal of the claim must fail.  38 U.S.C.A. � 5107(a);
Murphy, 1 Vet. App. at 81.

The governing law, 38 U.S.C.A. � 5107(a),

[R]eflects a policy that implausible
claims should not consume the limited
resources of the VA and force into even
greater backlog and delay those claims
which -- as well grounded -- require
adjudication. . . . Attentiveness to this
threshold issue is, by law, not only for
the Board but for the initial
adjudicators, for it is their duty to
avoid adjudicating the implausible claims
at the expense of delaying well grounded
ones.

Grivois v. Brown, 6 Vet. App. 136, 139 (1994).

Additionally, the Board notes that the veteran has not
reported that any competent evidence exists that if obtained
would establish a well-grounded claim for the disability at
issue in this case.  Under the circumstances, the VA has no
further duty to assist the veteran in developing a well-
grounded claim for entitlement to service connection for a
skin disorder due to exposure to Agent Orange.  Epps v.
Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet.
App. 69 (1995).

ORDER

The petition to reopen the claim for entitlement to service
connection for a skin disorder is denied.

The appeal of the claim for entitlement to service connection
for a skin disorder secondary to exposure to Agent Orange is
denied.

REMAND

With regard to the claim for entitlement to an earlier
effective date for the award of service connection for post-
traumatic stress disorder, it appears that the veteran first
filed a claim for entitlement to service connection for post-
traumatic stress disorder when he submitted a VA Form 21-526
(Veteran�s Application for Compensation or Pension) on August
30, 1982.  Subsequently, final decisions of the RO dated in
December 1982, March 1986, July 1987 and January 1992 denied
service connection for post-traumatic stress disorder or
essentially determined that new and material evidence had not
been received to reopen such a claim.  On October 21, 1992,
the veteran submitted a VA Form 21-4138, in which he
indicated that he was seeking service connection for post-
traumatic stress disorder; and it was the October 1992 claim
that led to the award of service connection for post-
traumatic stress disorder.

According to the January 1995 rating decision currently on
appeal, the RO assigned an effective date of April 12, 1993,
for the award of service connection for post-traumatic stress
disorder because that date was the date of admission to the
VA hospital which was the earliest date post-traumatic stress
disorder was shown by the evidence.  The Board also notes
that additional service records dated in March 1969 and
received in October 1993 revealed that the veteran was
awarded a Combat Infantryman Badge, which the RO accepted as
evidence of a stressor in establishing entitlement to service
connection benefits for post-traumatic stress disorder.  See
38 C.F.R. � 3.304(f) (1997).  The Board points out that the
veteran�s DD Form 214, of record prior to 1992, did not show
that a Combat Infantryman Badge had been awarded.

The hospital discharge summary for the hospitalization from
April 12, 1993, to April 30, 1993, shows that the veteran�s
diagnoses upon discharge included post-traumatic stress
disorder; and a VA psychiatrist who examined the veteran in
July 1993 reported that the veteran met the criteria for
post-traumatic stress disorder at that time.  However, review
of the claims file discloses that VA outpatient treatment
records and hospital summaries, dated prior to October 1992,
also included impressions or diagnoses of post-traumatic
stress disorder.

Thus, there was already evidence of a diagnosis of post-
traumatic stress disorder when the veteran filed his petition
to reopen the claim for entitlement to service connection for
post-traumatic stress disorder in October 1992.  However, it
was not until October 1993 that the RO received evidence of
an inservice stressor.

Where service connection has been granted following the
reopening of a claim by submission of new and material
evidence following a prior final disallowance, and the new
and material evidence consists of additional service
department records, as in this case, 38 C.F.R. � 3.400(q)(2)
(1997) provides that an effective date will be assigned
�[t]o agree with evaluation (since it is considered these
records were lost or mislaid) or date of receipt of claim on
which prior evaluation was made, whichever is later, subject
to rules on original claims filed within 1 year after
separation from service.�

In light of the Board�s finding that service connection was
granted because of the receipt of service records showing
that the veteran was awarded a Combat Infantryman Badge, the
Board finds that the date of claim for entitlement to service
connection for post-traumatic stress disorder is August 30,
1982.  See 38 C.F.R. �� 3.156(c), 3.400(q)(2) (1997).  Thus,
additional development is warranted in order to determine
when entitlement to service connection for post-traumatic
stress disorder arose.

With regard to the claim for entitlement to an increased
evaluation for post-traumatic stress disorder, the Board
notes that the entire section of the VA Schedule for Rating
Disabilities dealing with evaluation of mental disorders was
changed, effective November 7, 1996.  38 C.F.R. �� 4.125-
4.130 (1997).  The Board also observes that the changes are
comprehensive in general and make specific changes to the
diagnostic criteria under which post-traumatic stress
disorder is evaluated.  Under the circumstances, the RO
should be afforded an opportunity to consider the veteran�s
claim in light of the new diagnostic criteria for evaluating
his service-connected psychiatric disorder and another VA
psychiatric examination is warranted.

Review of the record also discloses that the veteran is
receiving benefits from the Social Security Administration.
However, it does not appear that copies of the medical
records associated with the decision to grant such benefits
have been obtained.

While the Board regrets the delay involved in remanding this
case, under the circumstances discussed above, it is felt
that proceeding with a decision on the merits at this time
would not withstand scrutiny by the United States Court of
Veterans Appeals.  For that reason, to ensure due process,
and to ensure that the VA has met its duty to assist the
veteran in developing the facts pertinent to his claims
regarding post-traumatic stress disorder, the case is
REMANDED to the RO for the following development:

1.  The RO should notify the veteran that
he may submit additional evidence and
argument in support of his claims for
entitlement to an increased evaluation
for post-traumatic stress disorder and an
earlier effective date for the award of
service connection for that disorder.
See Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).

2.  The RO should also ask the veteran to
provide the name and address of the first
facility at which he received treatment
for post-traumatic stress disorder
symptoms and date of such treatment.
After obtaining any necessary
authorization, the RO should request
records of such treatment.

3.  The RO should also obtain copies of
all medical records associated with the
veteran�s claim for disability benefits
from the Social Security Administration.

4.  The RO should attempt to secure
copies of all medical records pertaining
to the veteran from the Milwaukee,
Wisconsin, VA facility dated prior to
1980, including any records which have
been archived.  The RO should also
attempt to secure copies of all medical
records pertaining to the veteran from
the Miami, Florida, VA facility dated
from December 1995, the date of the last
such request.

5.  The RO should then schedule the
veteran for a VA psychiatric examination
for the purpose of ascertaining the
severity of his service-connected
psychiatric disorder.  It is very
important that the examiner be afforded
an opportunity to review the veteran's
claims file prior to the examination and
a copy of the changes to the mental
disorders section of the rating schedule,
effective in November 1996.
Additionally, all necessary tests and
studies should be conducted, including
the assignment of a GAF code with an
explanation of what the assigned code
means.  The examiner should also comment
on the degree, if any, of industrial/
occupational and social impairment
produced solely by the service-connected
post-traumatic stress disorder rather
than substance abuse or personality
disorders, if possible.  The examiner is
requested to provide a complete rationale
for any opinion expressed.

6.  After the development requested above
has been completed to the extent
possible, the RO should again review the
record.  The RO should determine the date
entitlement to service connection for
post-traumatic stress disorder arose in
determining the effective date of the
award of service connection for that
disorder.  If any benefit sought, for
which an appeal has been perfected,
remains denied, the veteran and his
representative should be furnished a
supplemental statement of the case, which
includes the new criteria for evaluating
post-traumatic stress disorder, and given
the opportunity to respond thereto with
additional argument and/or evidence.

Thereafter, the case should be returned to the Board.  The
Board intimates no opinion as to the ultimate outcome of this
case.  The veteran need take no action until notified.

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

	JEFF MARTIN
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans�
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans� Judicial Review Act, Pub.
L. No. 100-687, � 402 (1988).  The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans�
Appeals.  Appellate rights do not attach to those issues
addressed in the remand portion of the Board�s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal.  38 C.F.R. � 20.1100(b) (1996).
- 2 -


series: legacy

judge_norm: MILO H HAWLEY

disposition: denied

text:
Citation Nr: 9814000
Decision Date: 05/04/98    Archive Date: 05/20/98

DOCKET NO.  96-11 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan

THE ISSUE

Entitlement to service connection for right elbow disability.

INTRODUCTION

The veteran had active service from June 1982 to February
1995.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1995 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.  The appeal was previously remanded by the
Board in February 1997.

CONTENTIONS OF APPELLANT ON APPEAL

It is contended that the veteran has chronic disability of
the right elbow that had its onset during his active service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not presented
evidence sufficient to justify a belief by a fair and
impartial individual that the claim of entitlement to service
connection for right elbow disability is well grounded.

FINDING OF FACT

The claim of entitlement to service connection for right
elbow disability is not plausible.

CONCLUSION OF LAW

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

REASONS AND BASES FOR FINDING AND CONCLUSION

The threshold question is whether the veteran's claim of
entitlement to service connection for right elbow disability
is well grounded under 38 U.S.C.A. � 5107(a).  A well-
grounded claim is a plausible claim which is meritorious on
its own or capable of substantiation.  Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990).  There must be more than a mere
allegation, the claim must be accompanied by evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible.  Tirpak v. Derwinski,
2 Vet. App. 609, 611 (1992).  Moreover, where a determinative
issue involves a medical diagnosis or medical causation,
competent medical evidence to the effect that the claim is
plausible is required.  Grottveit v. Brown, 5 Vet. App. 91,
93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).  In order for a claim to be considered well grounded,
there must be evidence both of a current disability and of an
etiological relationship between that disability and service.
Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992).

Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a preexisting injury
suffered or disease contracted in line of duty.  38 U.S.C.A.
�� 1110, 1131 (West 1991); 38 C.F.R. � 3.303 (1997).  The law
also provides that service connection may be granted for any
disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service.  38 C.F.R. � 3.303(d).

When the veteran submitted his formal claim in March 1995, he
indicated that his only treatment with respect to his elbow
was during active service.  In his substantive appeal,
received in October 1995, he indicated that he was going to
schedule an examination with a local physician and present
this evidence at the time of his hearing.  In March 1996, the
veteran withdrew his request for a hearing.  The record
indicates that subsequent to the Board's February 1997 remand
the veteran had apparently moved and not provided VA with a
current address.  Letters were directed to two separate
addresses in an attempt to obtain additional treatment
records from the veteran.  The record reflects that an
attempt has been made to obtain any available treatment
record and all available records appear to have been
obtained.  See Bell v. Derwinski, 2 Vet. App. 611 (1992);
Murincsak v. Derwinski, 2 Vet. App. 363 (1992).

A May 1994 service medical record reflects that the veteran
complained of right elbow pain of a two-month duration with
no injury.  The assessment was medial epicondylitis.  Motrin
and a brace were prescribed.  The report of a September 1994
service examination notes that the veteran had internal
epicondylitis in May 1994 with Motrin and a brace prescribed.
The report of the examination reflects that the veteran's
upper extremities and musculoskeletal system were normal.

Although the veteran indicated in his substantive appeal,
received in October 1995, his belief that he could provide
additional evidence that a chronic right elbow disability
existed, such information has not been forthcoming and
attempts to request such information from the veteran have
been fruitless.

In order for the veteran's claim of entitlement to service
connection for right elbow disability to be well grounded, he
must submit medical evidence indicating that he currently has
this disability and that it is related to his active service.
A May 1994 service medical record reflects an assessment of
medical epicondylitis, but there is no indication that it was
chronic and the report of a September 1994 service
examination reflects that the veteran's upper extremities and
musculoskeletal system were normal.  There is no competent
medical evidence which reflects that the veteran currently
has chronic disability of the right elbow.  The veteran has
offered statements, that are presumed credible for purposes
of this decision, but he, as a lay person, is not qualified
to establish a medical diagnosis or show a medical etiology
merely by his own assertion, as such matters require medical
expertise.  See Grottveit and Espiritu, supra.  The Board,
therefore, concludes that without the requisite competent
medical evidence establishing that the veteran currently has
chronic disability of the right elbow that had its onset
during active service or that is related to his active
service, the claim of entitlement to service connection for
right elbow disability is not well grounded.  Caluza, supra.

The Board views its discussion as sufficient to inform the
veteran of the elements necessary to complete his claim for
disability compensation for the above-discussed disability.
Robinette v. Brown, 8 Vet. App. 68 (1995).

ORDER

Evidence of a well-grounded claim for entitlement to service
connection for right elbow disability not having been
submitted, the appeal is denied.

	MILO H. HAWLEY
	Acting Member, Board of Veterans' Appeals

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

- 2 -


judge_norm: J F GOUGH

judge_role: Member, Board of Veterans' Appeals

text: The appeal is denied.

text:
Citation Nr: 9815000
Decision Date: 05/14/98    Archive Date: 05/27/98

DOCKET NO.  96-45 288	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to the nonservice-connected burial allowance
pursuant to 38 C.F.R. � 3.1600(b) or (c) (1997).

2.  Entitlement to a plot or interment allowance pursuant to
38 C.F.R. � 3.1600(f) (1997).

ATTORNEY FOR THE BOARD

D. Dean

INTRODUCTION

The appellant is the widow of a deceased veteran who had
active service from October 1945 to November 1946.  This
matter comes before the Board of Veterans� Appeals (Board) on
appeal from adjudicative determinations by the Waco Regional
Office (RO) of the Department of Veterans Affairs (VA).  Her
personal hearing was withdrawn at her request by letter
received in February 1998.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that she deserves her deceased
husband's VA benefits on account of his service and because
they are needed to support her household and pay the funeral
bills.  In this connection, it is noted by the Board that she
has been awarded VA death pension benefits of $474 per month,
effective March 1, 1997.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claims seeking either the
nonservice-connected burial allowance or the plot and
interment allowance are legally insufficient.

FINDINGS OF FACT

1.  During his lifetime, the veteran did not apply for and
was not entitled to receive VA disability compensation or
pension benefits.

2.  He was not discharged from active military service for
any disability incurred or aggravated in line of duty.

3.  The veteran did not die while hospitalized by VA.

4.  He was not buried in a state veterans' cemetery.

CONCLUSIONS OF LAW

1.  Entitlement to the nonservice-connected burial allowance
is not established.  38 C.F.R. � 3.1600(b) or (c) (1997).

2.  Entitlement to the plot or interment allowance is not
established.  38 C.F.R. � 3.1600(f) (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran had active military service from October 1945 to
November 1946, which was a period of war as defined at
38 C.F.R. � 3.2(d) (1997).  He was discharged from active
military service under the provisions of Army Regulation 615-
363 pertaining to the demobilization of troops following
World War II.  He was not given a medical discharge.  During
his lifetime, the veteran never applied for or received VA
disability compensation or pension benefits; the evidence of
record at the time of his death did not demonstrate his
entitlement to either benefit.

According to the Certificate of Death, the veteran died at
the age of 69 on March 27, 1996, due to liver cancer of two
months' duration.  The appellant has twice specifically
denied that his death was due to a service-connected
disability.  (See Box #9 on VA Form 21-530, Application for
Burial Benefits, dated in April 1996; and Box #10 on VA Form
21-534, Application for Dependency and Indemnity
Compensation, Death Pension, and Accrued Benefits by a
Surviving Spouse, dated in February 1997.)  The veteran died
at his residence, and he was buried in a private cemetery�not
in a state veterans' cemetery or in a VA cemetery.  (See
Certificate of Death, dated in March 1996.)

Pursuant to 38 C.F.R. � 3.1600(b) a burial allowance is
payable for a veteran's nonservice-connected death, provided
that the veteran was in receipt of compensation or pension
benefits at the time of his death; or had a claim for those
benefits pending at the time of his death which was supported
by the evidence of record at the time of his death; or was
discharged from active service for a disability incurred or
aggravated in line of duty.  38 C.F.R. � 3.1600(b)(1) (2) and
(3).  In the present case, the veteran did not satisfy any of
the foregoing eligibility requirements: he was not in receipt
of VA compensation or pension benefits at the time of his
death, nor did he have a claim for either benefit pending at
that time, nor was he discharged from service for any medical
disability incurred or aggravated in line of duty.

Pursuant to 38 C.F.R. � 3.1600(c), a burial allowance is also
payable for the nonservice-connected death of a veteran who
died while properly hospitalized by VA.  In this case, the
veteran died at home.  He was not "hospitalized" by VA as
that term is defined at 38 C.F.R. � 3.1600(c).

Finally, it is provided at 38 C.F.R. � 3.1600(f) that a plot
and interment allowance is payable for a veteran who dies of
a nonservice-connected cause if the burial allowance under
38 C.F.R. � 3.1600(b) or (c) is payable; or if the veteran
served during a period of war and is buried in a state
veterans' cemetery; or if the veteran was discharged from
service for a disability incurred or aggravated in line of
duty.  In the present case, none of these essential
eligibility requirements have been satisfied.  The burial
allowance under 38 C.F.R. � 3.1600(b) or (c) is not payable
for the reasons set forth previously herein; the veteran was
not buried in a state veterans' cemetery, and he was not
discharged from service for a disability incurred or
aggravated in line of duty.

In cases such as this, where the law is dispositive, the
claim should be denied because of the absence of legal merit.
Sabonis v. Brown, 6 Vet.App. 426 (1994).  Accordingly, the
appeal is denied.

ORDER

The appeal is denied.

	J.F. GOUGH
	Member, Board of Veterans' Appeals

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


judge_norm: DEBORAH W SINGLETON

disposition: remanded

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

text:
Citation Nr: 9817000
Decision Date: 06/02/98    Archive Date: 06/15/98

DOCKET NO.  97-05 374	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah

THE ISSUE

Entitlement to an increased evaluation for post-traumatic
stress syndrome, PTSD, currently evaluated as 10 percent
disabling.

ATTORNEY FOR THE BOARD

L. McCain Parson, Associate Counsel

INTRODUCTION

The veteran had active duty from September 1969 to March 1972
and from February 1976 to June 1984.

This matter comes before the Board of Veterans� Appeals
(Board) on appeal from a May 1997 rating decision by the Salt
Lake City, Utah, Regional Office of the Department of
Veterans Affairs (VA) denying the benefit sought.

REMAND

The appellant requested a personal hearing at the RO before a
member of the Board in his Substantive Appeal dated in March
1998.  The appellant�s request was not acknowledged.  The
case file bears no other correspondence from the RO to the
appellant regarding the scheduling of a hearing.  This is a
matter of due process that must be remedied prior to
consideration of the issue on appeal.  38 C.F.R. � 20.700
(1997).

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

1. The RO should take appropriate action
to clarify the appellant�s request for
a hearing before a member of the Board
and if requested, to schedule the
appellant, in accordance with the
docket number of this case, for a
hearing before a traveling member of
the Board, and should associate with
the claims folder a copy of the notice
to the appellant of the scheduling of
the hearing.  If the appellant does
not respond in a reasonable period of
time to the development request, the
RO should document such finding in the
case file.

2. After the appellant has been afforded
his due process right to a hearing
before a member of the Board, the case
should be returned to the Board for
appellate consideration.  By this
remand, the Board intimates no opinion
as to any final outcome warranted.

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

	Deborah W. Singleton
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 1998), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Veterans Appeals.  This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (1997).

- 2 -


judge_norm: BRUCE E HYMAN

condition: back

text:
Citation Nr: 9818000
Decision Date: 06/11/98    Archive Date: 06/22/98

DOCKET NO.  97-23 707	)	DATE
	)
	)

On appeal from the
U.S. Department of Veterans Affairs (VA) Regional Office (RO)
in Washington, DC

THE ISSUE

Entitlement to service connection for a cervical spine
disorder.

ATTORNEY FOR THE BOARD

J. Henriquez, Associate Counsel

INTRODUCTION

The veteran had active service from March 1984 to March 1990
and from November 1990 to September 1995.  This appeal arises
from a June 1996 rating action of the Washington, D.C., RO
which denied service connection for a cervical spine
disorder.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends, in essence, that he should be service
connected for a cervical spine disorder.  Specifically, the
veteran maintains that the weight and strain of wearing army
helmets and carrying rucksacks during service caused his
cervical spine disorder.

DECISION OF THE BOARD

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

FINDING OF FACT

The veteran has not submitted evidence sufficient to justify
a belief by a fair and impartial individual that his claim
for service connection for a cervical spine disorder is
plausible.

CONCLUSION OF LAW

The veteran has not submitted evidence of a well-grounded
claim with respect to the issue of service connection for a
cervical spine disorder.  38 U.S.C.A. �  5107(a) (West 1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Factual Background

A review of the evidence discloses that the service medical
records for both periods of active service are completely
negative for findings or diagnoses of a cervical spine
disorder.  A review of the service medical records for the
first period of active service indicates that the veteran
denied a history of back pain on a January 1984 report of
medical history for pre-screening purposes.  He gave a
history of a broken collar bone in 1960, and he had no
problems from this.  The veteran denied a history of
recurrent back pain in a report of medical history on
entrance physical examination subsequently in January 1984,
and the neck was normal on examination.  In August 1989, the
veteran was seen with complaints of a cough, post nasal
drainage, and slight neck swelling.  There were no pertinent
neck findings on examination, and the assessment was upper
respiratory infection.

In a separation examination medical history report of March
1990, the veteran complained of broken bones and recurrent
back pain.  The examiner noted a collar bone fracture.  On
examination, the neck was normal.

In an October 1990 report of medical history completed by the
veteran for medical prescreening prior to entry into the
second period of active service, the veteran denied a history
of back trouble and broken bones.

In a report of medical history completed by the veteran on
examination into the 2nd period of active service
subsequently in October 1990, the veteran complained of
broken bones but denied back pain.  The examiner noted a
fracture of the clavicle three years ago which had healed.
On examination, the neck was normal.

The neck was supple on examinations of July 1991.  In
November 1993, there was full range of motion about the neck.
In early July 1995, the veteran was seen with complaints of
cold symptoms including congestion, a runny nose and a stiff
neck for the past few days.  On examination, the neck was
supple.  The assessment was sinobronchial syndrome.

In a report of medical history on separation physical
examination of mid-July 1995,  the veteran reported a history
of broken bones and recurrent back pain.  The examiner noted
an eleven year history of upper back and neck pain.  On
examination, the neck was normal.

In a VA examination in April 1996, the veteran stated a
history of upper back and neck pain since 1985.  After
examination, including X-rays, the diagnosis was chronic neck
pain due to an inborn fusion of the C4-C5 segments of the
spine, and an overextended posture of the cervical spine.

I.  Analysis

The threshold question to be answered in this case is whether
the veteran has presented evidence of a well-grounded claim,
that is, a claim which is plausible.  If he has not presented
a well-grounded claim, his appeal must fail, and there is no
duty to assist him further in the development of his claim
because such development would be futile.  38 U.S.C.A. �
5107(a); Murphy v. Derwinski,
1 Vet.App. 78 (1990).  As will be explained below, the Board
finds that his claim is not well-grounded.

Under the applicable criteria, service connection may be
granted for disability resulting from disease or injury
incurred in or aggravated by service.  38 U.S.C.A. �� 1110,
1131 (West 1991).  Service connection basically means that
the facts, shown by evidence, establish that a particular
disease resulting in disability was incurred coincident with
service.  This may be accomplished by affirmatively showing
inception during service.  Each disabling condition shown by
a veteran�s service records, or for which he seeks a service
connection must be considered on the basis of the places,
types and circumstances of his service as shown by service
records, the official history of each organization in which
he served, his medical records, and all pertinent medical and
lay evidence.  Determinations as to service connection will
be based on review of the entire evidence of record, with due
consideration to VA policy to administer the law under a
broad and liberal interpretation consistent with the facts in
each individual case.  38 C.F.R. �  3.303(a) (1997).

The U. S. Court of Veterans Appeals (Court) has held that
evidentiary assertions on or accompanying a claim for VA
benefits must be accepted as true for the purpose of
determining that the claim is well-grounded.  Exceptions to
this rule occur when the evidentiary assertion  is inherently
incredible or when the fact asserted is beyond the competence
of the person making the assertion.  Espiritu v. Derwinski,
2 Vet.App. 492; Tirpak v. Derwinski, 2 Vet. App. 609 (1992);
King v. Brown, 5 Vet. App. 19  (1993).  Where the
determinative issue involves medical causation, competent
medical evidence to show the claim is plausible is required
for a claimant to establish a well-grounded claim.  Grottveit
v. Brown, 5 Vet. App. 91 (1993).  In order for a claim to be
well-grounded, there must be competent evidence of current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the inservice injury or
disease and the current disability.  Caluza v. Brown, 7
Vet.App. 498 (1995).

In this case, the service medical records are completely
negative for findings of any cervical spine disorder.  The
veteran made subjective complaints of a neck problem during
service, but at no time during either period of service was a
cervical spine disorder objectively found during examination.
Rather, competent medical authorities associated his
complaints of neck pain with colds and upper respiratory
problems.  The neck was clinically normal on all entrance and
exit examinations for active service.  The first medical
evidence of a cervical spine disorder was noted in a VA
examination dated April 1996, some 7 months following
separation from the 2nd period of active service.  The
examiner diagnosed the cervical spine disorder as inborn and
did not relate it to military service or any incident
thereof.  Although the veteran has claimed a relationship
between alleged inservice cervical spine complaints and his
current cervical spine disorder, no medical opinion has been
entered into record linking the current disorder with any
incident of military service.  In view of the absence of the
claimed disability in service, and the absence of medical
evidence linking the current cervical spine disorder with an
event in service, the Board finds that the veteran�s claim
for service connection for a cervical spine disorder is not
well-grounded, and the appeal is denied.

ORDER

Evidence of a well-grounded claim not having been submitted
with respect to the issue of service connection for a
cervical spine disorder, the appeal is denied.

	BRUCE E. HYMAN
	Member, Board of Veterans' Appeals

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

- 2 -


judge_norm: MARK D HINDIN

condition: tinnitus

text:
Citation Nr: 9819000
Decision Date: 06/22/98    Archive Date: 07/06/98

DOCKET NO.  96-04 087	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana

THE ISSUE

Entitlement to service connection for tinnitus.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

Tsopei Robinson, Associate Counsel

INTRODUCTION

The veteran had active service from June 1964 to June 1968.

This matter comes before the Board of Veterans� Appeals
(Board) from an October 1995 rating determination from a
Department of Veterans Affairs (VA) Regional Office (RO).

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his tinnitus is due to acoustic
trauma suffered during active service.  Therefore, service
connection is warranted.

DECISION OF THE BOARD

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

FINDING OF FACT

Tinnitus was first demonstrated many years after service and
is not related to service.

CONCLUSION OF LAW

Tinnitus was not incurred in or aggravated by active service.
38 U.S.C.A. �� 1110, 1131, 5107 (West 1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran�s service medical records are negative for
findings referable to tinnitus.

In his initial claim for benefits received in December 1966,
the veteran reported that he had been exposed to the blast
from a five inch gun, and that the blast had caused bleeding,
ringing in the ear and pain.

The veteran underwent a period of hospitalization for
observation and evaluation in January 1967.  On ear nose and
throat consultation during hospitalization, it was reported
that the veteran was being seen for diminished hearing and
ringing in the right ear, which the veteran attributed to a
blast from a five-inch gun.  On the examination, tinnitus was
not reported.  The diagnosis was neurosensory loss, moderate.
The discharge summary shows that tinnitus was not diagnosed
or reported.

The veteran was hospitalized at a VA facility in July and
August 1967, after complaining of bilateral deafness.  He was
found to have pharyngitis.  No findings referable to tinnitus
were reported.

The veteran underwent several audiologic examinations for VA
from June to September 1967, no findings were reported
referable to tinnitus.

The veteran submitted a statement dated in December 1973 from
Dr. J. Marcel.  He reported that he had seen the veteran in
November 1973 and that the veteran had �occasional bouts of
tinnitus.�

Examinations for VA as well as private audiologic
examinations dated between July 1977 and December 1988 show
no findings relating to tinnitus.

On VA audiological examination in October 1995, the veteran
reported a constant tinnitus in the right ear had been
present for the past eight to ten months.  The examiner
reviewed the veteran�s claim file and noted that of ten
audiological exams there was only one ear, nose, and throat
report that mentioned occasional bouts of tinnitus.  All of
the other reports were silent on the subject of tinnitus, to
include the veteran�s current statement in support of his
claim.  The examiner noted that according to the veteran�s
report his tinnitus had been a problem for the past 8 to 10
months.  Additionally, the examiner noted that the veteran
was currently on medication for hypertension, which may have
an effect on tinnitus and should not be ruled out.  Finally,
the examiner reported that he found no significant evidence
to conclude that the veteran�s tinnitus was related to
military service.

Analysis

A veteran claiming entitlement to VA benefits has the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded.  38 U.S.C.A. �  5107(a) (West 1991).  A well-
grounded claim is a plausible claim, capable of
substantiation.  Tirpak v. Derwinski, 2 Vet. App. 609, 611
(1992).  A well-grounded claim requires more than allegations
that the veteran�s service, or an incident that occurred
therein, resulted in injury, illness, or death.  The veteran
must submit supporting evidence that would justify the belief
that the claim is a plausible one.  See Tirpak, 2 Vet. App.
at 609.  Where a claim is not well grounded, VA does not have
a statutory duty to assist the veteran further in the
development of his claim.  38 U.S.C.A. �  5107(a).

The United States Court of Veterans Appeals (Court) has held
that the three elements of a well grounded claim for service
connection are: 1) evidence of a current disability as
provided by a medical diagnosis; 2) evidence of incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence; and 3) a nexus, or link,
between the service related disease or injury and the current
disability, as provided by competent medical evidence.
Caluza v. Brown, 7 Vet. App. 498, 506 (1994).

The quality and quantity of evidence required to meet the
statutory burden for establishing a well-grounded claim
depends upon the issue presented by the claim.  Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence that the claim is
plausible is required.  Grottveit v. Brown, 5 Vet. App. 91,
93 (1993).

A veteran cannot meet the burden of submitting a well-
grounded claim merely by submitting lay testimony because lay
persons are not competent to offer medical opinions.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  If
the claimed disability is manifested by observable symptoms,
lay evidence of symptomatology may be adequate to show the
nexus between the current disability and the in-service
disease or injury.  Nevertheless, medical evidence is
required to show a relationship between the reported
symptomatology and the current disability, unless the
relationship is one to which a lay person�s observations are
competent.  Savage v. Gober, 10 Vet. App. 488, 495 (1997).

Under the provisions of 38 C.F.R. � 3.303(b), chronic disease
shown as such in service (or within the presumptive period
under � 3.307) so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent
causes. This rule does not mean that any manifestation of
joint pain, any abnormality of heart action or heart sounds,
any urinary findings of casts, or any cough, in service will
permit service connection of arthritis, disease of the heart,
nephritis, or pulmonary disease, first shown as a clear-cut
clinical entity, at some later date. For the showing of
chronic disease in service there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time,
as distinguished from merely isolated findings or a diagnosis
including the word "Chronic." When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim.

The chronicity provision of � 3.303(b) is applicable where
evidence, regardless of its date, shows that a veteran had a
chronic condition in service or during an applicable
presumption period and still has such condition. Such
evidence must be medical unless it relates to a condition as
to which, under the Court's case law, lay observation is
competent. If the chronicity provision is not applicable, a
claim may still be well grounded or reopened on the basis of
� 3.303(b) if the condition is observed during service or any
applicable presumption period, continuity of symptomatology
is demonstrated thereafter, and competent evidence relates
the present condition to that symptomatology.  Savage v.
Gober, 10 Vet. App. 488, 498 (1997).  The competent evidence
must be medical unless such a relationship is one as to which
a lay person�s observations are competent.  Savage v. Gober,
at 497, Falzone v. Brown, 8 Vet. App. 398 (1995).

The veteran is competent to report the presence of tinnitus.
Tinnitus is an observable condition.  He has in fact reported
the presence of this condition in service, and to report, as
he did in his substantive appeal, that he has experienced
this condition since service.  His contention supplies a
continuity of symptomatology since service.  He would also
appear to be competent to say that the tinnitus he
experienced in service, is the same condition he experiences
today.  The examiner conducting the October 1995, examination
noted the presence of tinnitus.  Thus there is competent
medical evidence of current disability.  Accordingly, the
Board finds that the veteran�s claim is well grounded.  The
Board further finds that VA has complied with its duty to
assist him with the development of his claim.  VA has
afforded him an examination, and has sought an opinion as to
whether the claimed disability is related to service.  It has
also procured all reported treatment records.

The evidence in favor of the veteran�s claim consists of his
statements.  The evidence against his claim includes the fact
that the service medical records, with the possible exception
of the December 1973 statement, do not show tinnitus, other
than by history.  Other evidence against the veteran�s claim
includes his statements during the October 1995 examination
that his current tinnitus had been present only eight to ten
months, and the examiner�s opinion that the evidence did not
support a conclusion that his tinnitus was related to
service.  The VA examiner stated that the veteran�s
hypertension medication is likely to be the etiology of his
tinnitus.  The examiner�s opinion is of great probative
weight since it constitutes the only medical evidence as to
the etiology of the veteran�s tinnitus, and was the product
of a review of the record and actual examination of the
veteran.  The examiner�s opinion, the veteran�s statements
during the examination in October 1995, and the silence of
the contemporaneous treatment records outweighs the veteran�s
recent statements as to the relationship between his current
tinnitus and service.  The Board concludes that the
preponderance of the evidence is against a finding that the
veteran�s current tinnitus is related to service.  Since the
evidence is not in equipoise, the doctrine of reasonable
doubt is not for application.

ORDER

Service connection for tinnitus is denied.

	Mark D. Hindin
	Member, Board of Veterans' Appeals

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

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judge_norm: U R POWELL

disposition: granted

condition: eye

text:
Citation Nr: 9820000
Decision Date: 06/30/98    Archive Date: 07/06/98

DOCKET NO.  96-25 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri

THE ISSUE

Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently evaluated as 50 percent
disabling.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jason R. Davitian, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1969 to June
1971.

This case is before the Board of Veterans� Appeals (BVA or
Board) on appeal from an October 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office in St.
Louis, Missouri (RO), which denied service connection for
PTSD.  During the pendency of the appeal, a March 1996 rating
decision granted the veteran service connection for PTSD,
evaluated as 10 percent disabling, effective April 1995.  A
December 1996 rating decision evaluated the veteran's PTSD as
50 percent disabling, effective April 1995.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that the RO was incorrect in
not granting the benefit sought on appeal.  The veteran
maintains, in substance, that the current evaluation assigned
for his PTSD does not adequately reflect the severity of that
disability.  He contends that his PTSD interferes with his
employment by preventing promotions.  He also has a difficult
time being around other people and prefers to be by himself.
Therefore, a favorable determination has been requested.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence regarding the
veteran's claim for an increased evaluation for PTSD is at
least in equipoise, and with resolution of doubt in the
veteran�s favor, supports an increased 70 percent evaluation
for that disability.

FINDINGS OF FACT

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

2.  The veteran�s service-connected PTSD is manifested by
occupational and social impairment, with no more than severe
impairment in the ability to establish and maintain effective
or favorable relationships with people or obtain and retain
employment.

CONCLUSION OF LAW

The schedular criteria for a 70 percent evaluation for PTSD
have been met.  38 U.S.C.A. �� 1155, 5107 (West 1991);
38 C.F.R. � 4.132, Diagnostic Code 9411 (1996); 38 C.F.R.
�� 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board finds that the veteran's
claim is plausible and thus well-grounded within the meaning
of 38 U.S.C.A. � 5107(a); see Proscelle v. Derwinski, 2 Vet.
App. 629 (1992) (a claim of entitlement to an increased
evaluation for a service-connected disability generally is a
well-grounded claim). The Board is satisfied that all
relevant evidence has been obtained with respect to this
claim and that no further assistance to the veteran is
required in order to comply with the duty to assist mandated
by statute.

In accordance with 38 C.F.R. �� 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records and all other evidence of record
pertaining to the history of the veteran's service-connected
disability.  The Board has found nothing in the historical
record that would lead to a conclusion that the current
evidence of record is not adequate for rating purposes.
Moreover, the Board is of the opinion that this case presents
no evidentiary considerations that would warrant an
exposition of the remote clinical histories and findings
pertaining to the disability at issue.

Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) found in 38 C.F.R. Part 4.  The Board attempts to
determine the extent to which the veteran's service-connected
disability adversely affects his ability to function under
the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon the average
impairment of earning capacity in civil occupations.  38
U.S.C.A. � 1155; 38 C.F.R. �� 4.1, 4.10.

�Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating."  38 C.F.R. � 4.7.

Under the provisions of the Rating Schedule in effect prior
to November 7, 1996, a 50 percent evaluation for PTSD
requires that the ability to establish or maintain effective
or favorable relationships with people be considerably
impaired, and that by reason of psychoneurotic symptoms, the
reliability, flexibility, and efficiency levels be so reduced
as to result in considerable industrial impairment.
Diagnostic Code 9411.

A 70 percent evaluation requires that the ability to
establish and maintain effective or favorable relationships
with people be severely impaired, and that by reason of the
severity and persistence of psychoneurotic symptoms, there is
severe impairment in the ability to obtain and retain
employment.

A 100 percent evaluation requires that the attitudes of all
contacts except the most intimate be so adversely affected as
to result in virtual isolation in the community and that
there be totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes (such as fantasy, confusion,
panic, and explosions of aggressive energy) associated with
almost all daily activities resulting in a profound retreat
from mature behavior.  A 100 percent evaluation is also
warranted if the individual is demonstrably unable to obtain
or retain employment.  Diagnostic Code 9411.

Under the provisions of the Rating Schedule effective
November 7, 1996, a 50 percent evaluation for PTSD is
warranted by occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships.

A 70 percent evaluation for PTSD is warranted for
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities: speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); and inability to establish and
maintain effective relationships.

A 100 percent evaluation for PTSD is warranted for total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; and memory loss for names of
close relatives, own occupation, or own name.

In assessing the degree of disability attributable to a
service-connected disorder, the disorder is viewed in
relation to its whole history.  38 C.F.R. �� 4.1, 4.2;
Schafrath 1 Vet. App. 589.  Historically, the veteran was
granted service connection for PTSD by a March 1996 rating
decision.  A 10 percent evaluation, effective April 1995 was
granted.

The evaluation was based in part on the report of a July 1995
VA examination.  The veteran reported working for 21 years as
a fireman and denied any difficulties on the job.  The
veteran married at age 38 and had two children ages six and
seven.  He denied problems in the marriage.  He denied
serious symptoms of depression or other psychiatric
conditions.  The veteran said that his PTSD symptoms began a
few years earlier and he did not describe many symptoms.  He
thought about combat experiences a lot and had occasional
nightmares about them.  In the checklist of PTSD symptoms, he
did not have many others.  He might have some trouble with
concentration, but was not sure, and did have some trouble
with initial insomnia.  It was thought this might have had
something to do with the veteran's work schedule of on 24
hours, and off 48 hours.  The veteran seemed to be very close
to his wife and children and preferred being at home rather
than being out socializing.  The Axis diagnosis was no
psychiatric diagnosis.  The Axis V Global Assessment of
Functioning (GAF) score was that the veteran copes well.

The 10 percent evaluation was also based on the reports of VA
outpatient psychiatric treatment from April 1995 to February
1996.  The veteran complained about problems falling and
staying asleep, nightmares, flashbacks, and problems dealing
with his wife and children.  Diagnoses of PTSD were provided.
In June 1995, the veteran was diagnosed with PTSD, chronic,
severe, combat-related.  In September 1995, the veteran was
objectively noted to be distressed when recounting his combat
experiences.  The Axis I diagnoses were PTSD and secondary
depression.  The Axis V GAF score was major impairment in
social functioning.  It was summarized that the veteran had
managed to find a sort of work he could tolerate, but that
his job performance was declining after 21 years.  In
November 1995, it was noted that the veteran could work, but
that his family life was affected by his PTSD.  In February
1996, the veteran reported that he had chosen not to seek
promotion to a firefighter Captain because of his PTSD
symptoms.

The veteran's evaluation for PTSD was increased to 50
percent, effective April 1995, by a December 1996 rating
decision.  Evidence considered by the rating decision
included a written statement from the veteran's wife received
in March 1996.  She stated that he was very unhappy.  She
reported the veteran disliked socializing and had no fiends.
He reportedly would have a friend for a short while, but the
friendships would not last due to the veteran's irritability.
She stated the veteran would not trust his friends while he
did have them.  Reportedly, the veteran was lucky to have a
job that was not too busy.  She described him as able to keep
to himself most of the time.  She stated he would get angry
and had a strong temper.  She reported he was very strict
with his daughters and would yell at them a lot.  She stated
the veteran did not allow his daughters to have friends over
or go to the home of others.

The veteran testified at a personal hearing in March 1996.
He stated that despite his many years of experience as a
firefighter he did not wish to be promoted to Captain, which
was the usual course of action for a firefighter, because it
would result in too much public interaction.  He had combat
dreams that sometimes woke him up.  In his job as a
firefighter, he had only two other co-workers, so it was easy
for him to be by himself.  He disliked crowds of people and
socializing, and as a result he did not go to clubs , church,
or parties.  He would sometimes go to the grocery store.  He
was irritable and poor-tempered with his two children and his
wife.

The veteran testified at another personal hearing in October
1996.  He again stated that he had no friends or buddies.  He
avoided crowds and malls.  Sometimes he had difficulty
falling asleep and he had some nightmares.  He did not think
that psychiatric treatment at VA had improved his PTSD.
During his 23 years on the job, the veteran had been promoted
from a fireman to a driver, but had not been promoted to
Captain which was customary.  Most people made Captain in
eight to ten years.

The veteran's wife submitted an additional written statement
in October 1996.  She noted that as a result of the veteran's
hatred of crowds, he avoided accompanying his family to
school functions, restaurants, shopping, movies or parks.  He
yelled uncontrollably at his children, who were afraid of
him.  As a result, the family avoided him.  The veteran's
wife stated that he was especially mean in the morning.
Because he was so difficult, none of the family�s friends
would call on the telephone or come by the house to visit.
The veteran got little sleep.  He would often check the locks
and make sure that lights were turned on.

In addition, a September 1996 report of VA outpatient
psychiatric treatment shows that the veteran complained of
increased irritability, possibly because of a certain
medication.  He continued to have trouble sleeping.  The
examiner noted that the veteran's efficiency at work had been
reduced for some time.  His initiative had been reduced in
that he had not sought promotions which normally would have
come by this point in his career.  His problems with
relationships were substantial, and he had little social
association with his co-workers.  He had problems in his
relationship with his wife, including distance, conflict and
inability to be in crowds.  The examiner noted that when the
veteran spoke of his job, he had a sense of a foreshortened
career.

The assessment was �only partial relief of PTSD symptoms.�
It was felt that his employment as a firefighter constrains
his medication regimen.  His PTSD was characterized as
chronic and severe and was noted to be limiting his work.  It
was opined that his work limited treatment which could lessen
the severity of his PTSD.  PTSD was noted as interfering
significantly with his home life.  He avoided union
activities and avoided social interaction with his co-workers
because of estrangement and avoidance, PTSD symptoms.

An October 1996 report of VA outpatient psychiatric treatment
shows that the veteran continued to have problems with his
mood and sleeping.  He could sleep only when very tired.  He
had tried various medications which did not help.  The
veteran's employment advancement possibilities, and his
desire for advancement, were limited by the symptoms of his
PTSD, including reduced interest, difficulty getting along
with co-workers, estrangement which makes him unwilling to
supervise others and to deal with the public, which he would
have to do if he were promoted to Captain.  The veteran had
no social life, as being around people made him nervous and
he did not want to be around them.

The assessment was poor control of PTSD and secondary
depressive symptoms with current medications.  The veteran's
employment as a fire fighter limited the medications he could
take, and his symptoms limit the type of work he could do.
He had been at his job for 22 years and should have been a
Captain.  His PTSD remained chronic and severe.

Evidence submitted after the December 1996 rating decision
consists of the report of a July 1997 VA examination.  The
veteran provided a history of having worked as a firefighter
since 1973.  He had not gotten the usual promotions because
of his PTSD.  The veteran�s marriage was having problems,
which he blamed on himself.  He did not elaborate on them.
He had no social life or hobbies, but did like to read.

On examination, the veteran was neat, clean and oriented
times three.  His affect was tense and flattened.  His
judgment was fair.  His insight was fair.  His peer
relationships were poor and he avoided people.  His temper
control was poor, and he had middle sleep disturbance with
nightmares of combat dreams at least three times a week.
Memory was fair, and concentration and energy were
diminished.  He was depressed and sometimes cried, but denied
suicidal ideation.  He denied hallucinations or delusions.
He sometimes felt moderately paranoid, but this appeared to
be uneasiness around people.  He claimed to be unable to
tolerate people or relax.  He denied specific phobias. He had
survivor�s guilt about Vietnam and dwelled on his combat
experiences.  He had some anger about Vietnam.  He met the
criteria for the diagnosis of PTSD.  The examiner summarized
the veteran had middle sleep disturbance, recurrent
distressing thoughts about Vietnam, restricted range of
affect, hypervigilence, irritability, concentration problems,
and sleep disturbance with nightmares.  The Axis V GAF score
was 50.  The examiner noted the veteran managed to work full
time, but that it was a chore, and he had not received any
type of advancement.  The veteran's incapacity was
characterized as moderate.  It was reported the veteran did
make it to work regularly, and had held his job as a
firefighter for a long time.  It was noted as a stressful
job.  It was noted the veteran had some tension in his
family.

Based on a careful review of the evidence of record, the
Board finds that the evidence regarding this claim is at
least in equipoise.  With resolution of doubt in the
veteran�s favor, the Board finds that his PTSD is most
accurately evaluated as 70 percent disabling under both the
criteria in effect prior to November 7, 1996, as well as the
revised criteria that became effective on that date.  38
U.S.C.A. � 5107(b); 38 C.F.R. � 3.102 (1997).

The evidence shows that the veteran�s ability to socialize
with people is limited.  He cannot maintain friendships and
prefers to stay by himself.  His only social interaction is
with his family.  The veteran's relationship with his wife
and daughters is poor, and characterized by his anger,
irritability and screaming, and refusal to participate in
group activities.

Although the veteran is employed, it is clear that his
employment has stagnated due to his lack of initiative and
inability to interact with other people.  He has neither the
ambition nor the social skills to seek promotion to a
Captain, despite more than twenty years as a firefighter.  He
speaks of his job with a sense of a foreshortened career.
While at work, the veteran stays by himself and does not
interact with his co-workers.

Further, an evaluation of 70 percent is supported by the
veteran's GAF scores.  In September 1995, the veteran's GAF
was described by a VA examiner as major impairment in social
functioning.  In July 1997, a VA examiner provided a GAF
score of 50.  According to the Global Assessment of
Functioning Scale, a score between 41 and 50 represents
serious symptoms (e.g. suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in
social, occupational or school functioning (e.g., no friends,
unable to keep a job) (emphasis in original).  Therefore, the
veteran's recent GAF score of 50 indicates serious impairment
in several areas.

The Board has considered entitlement to a schedular
evaluation of 100 percent.  However, the Board finds that the
disability picture presented by the veteran�s PTSD does not
approximate, or more nearly approximate, the criteria
required for a 100 percent evaluation for this disability,
under either the criteria in effect prior to November 7,
1996, or the revised criteria that became effective on that
date.

It is significant that while the veteran�s PTSD has resulted
in reduced employment performance, initiative and motivation,
the veteran has been at the same job for over two decades.
Although the veteran�s career has failed to advance to
Captain, there is no indication that the quality of the
veteran�s work as a driver has been poor or unsatisfactory.
Moreover, the evidence fails to show that the veteran's PTSD
results in total social impairment.  The veteran is able to
share a home with his wife and two children.  Although the
veteran essentially ignores his two co-workers, he is able to
share close quarters with them.

Finally, VA treatment records do not reflect that the veteran
has impairment in reality testing or communication.  Although
the veteran has problems with irritability and nightmares, he
is in contact with reality.  He has not been shown to suffer
from gross impairment in thought processes or communication,
or persistent delusions.  He has shown the ability to perform
his job as a driver, and is not impaired by fantasy,
confusion, or panic.

As a last matter, the Board has considered 38 C.F.R.
� 4.16(c), which was in effect prior to November 7, 1996.
According to this regulation, where the only compensable
service-connected disability is a mental disorder which is
evaluated as 70 percent disabling, and the mental disorder
precludes a veteran from securing or following a
substantially gainful occupation, the mental disorder may be
assigned a total schedular evaluation under the appropriate
diagnostic code.

The Board concludes that section 4.16 does not apply to the
veteran's claim.  The veteran does have severe industrial
inadaptability, as represented by the 70 percent evaluation.
However, the veteran�s PTSD has not been shown to preclude
him from all gainful employment.  Records of VA treatment
show that in spite of the veteran's severe social and
industrial impairment, he can communicate with VA counselors
and his wife.  He is able to communicate with his fellow
firefighters well enough to maintain his current employment.

In light of the above, and with resolution of doubt in the
veteran�s favor, the Board concludes that a 70 percent
evaluation is warranted by the veteran's service-connected
PTSD.

ORDER

Subject to the provisions governing the award of monetary
benefits, a 70 percent evaluation for PTSD is granted.

	U. R. POWELL
	Member, Board of Veterans' Appeals

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