judge_norm: N R ROBIN

text:
Citation Nr: 0716000
Decision Date: 05/30/07    Archive Date: 06/11/07

DOCKET NO.  05-29 296	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska

THE ISSUE

Entitlement to service connection for asbestosis, to include
as due to exposure to asbestos.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

M. N. Hyland, Counsel

INTRODUCTION

The veteran had active duty from February 1944 to June 1946.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2005 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA).  The veteran testified at a Board hearing at the RO
before the undersigned Veterans Law Judge in May 2006.  In
May 2006, the Board granted the veteran's motion to advance
his appeal on the docket pursuant to the provisions of
38 C.F.R. � 20.900(c).

FINDING OF FACT

Asbestosis was not manifested during the veteran's active
duty service or for many years after separation from service,
nor is asbestosis otherwise related to such service,
including any exposure to asbestos during service.

CONCLUSION OF LAW

Asbestosis was not incurred in or aggravated during the
veteran's active duty service.  38 U.S.C.A. �� 1110, 5107
(West 2002); 38 C.F.R. � 3.303 (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

Upon receipt of a complete or substantially complete
application for benefits, VA is required to advise a claimant
of the information and evidence not of record that is
necessary to substantiate the claim.  See 38 U.S.C.A. � 5103
(West 2002); 38 CFR � 3.159(b)(1) (2006).  As part of that
notice, VA must inform the claimant of the information and
evidence he is expected to provide, as well as the
information and evidence VA will seek to obtain on his
behalf.  In addition, VA must advise a claimant to provide
any additional evidence in his possession that pertains to
the claim.  See 38 U.S.C.A. � 5103 (West 2002); 38 CFR �
3.159(b)(1) (2006); Quartuccio v. Principi, 16 Vet. App. 183
(2002).

The requirements apply to all five elements of a service
connection claim:  veteran status, existence of a disability,
a connection between the veteran's service and the
disability, degree of disability, and effective date of the
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The notice must be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (in this case, the RO).  Id; see
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  VCAA
notice errors (either in timing or content) are presumed
prejudicial, but VA can proceed with adjudication if it can
show that the error did not affect the essential fairness of
the adjudication by showing: 1) that any defect was cured by
actual knowledge on the part of the claimant, 2) that a
reasonable person could be expected to understand from the
notice what was needed, or 3) that a benefit could not have
been awarded as a matter of law.  Sanders v. Nicholson, No.
06-7001 (Fed. Cir. May 16, 2007).

In this case, in an August 2004 letter, the RO provided
timely (i.e. prior to the rating decision on appeal) notice
to the veteran regarding what information and evidence is
needed to substantiate service connection claims, as
specifying what information and evidence must be submitted by
him, what information and evidence will be obtained by VA,
and the need for him to advise VA of or submit any further
evidence that pertains to his claim.

The Board notes that the veteran did not receive notice as to
the information and evidence needed to substantiate increased
rating and earlier effective date claims until a March 2006
letter.  As such, the VCAA notice, with respect to these two
elements, was deficient as to timing and the error is
presumed prejudicial.  Nevertheless, the Board finds that
such presumption of prejudice is rebutted because in light of
the denial of entitlement to service connection for the claim
on appeal, any question as to the disability rating or
effective date to be assigned is rendered moot.  Moreover,
given the length of the appeal period and the fact that the
veteran was provided notice as to the evidence and
information necessary to establish disability ratings and
effective dates in March 2006 and was given ample time to
respond to this notice before his claim was re-adjudicated in
February 2007, the Board finds that the veteran has been
given an essential opportunity to advance his claim.  Overton
v. Nicholson, No. 02-1814 (U.S. Vet. App. September 22, 2006)
(recognizing that a review of the entire record, in relation
to 38 U.S.C.A. � 7104(a), and examination of various
predecisional communications, can assist in determining
whether the veteran had been "afforded a meaningful
opportunity to participate in the adjudication").

The Board notes at this point that the RO has taken
appropriate action to comply with the duty to assist
the veteran with the development of his claims.  The record
includes service records, private medical records and VA
treatment records.  The Board notes that the veteran has been
afforded a VA examination and etiology opinion in relation to
his claim.  As such, the Board finds that the record as it
stands includes sufficient competent evidence to decide this
claim.  See 38 C.F.R. � 3.159(c)(4).  Under these
circumstances, the Board finds no further action is necessary
to assist the veteran with the claim.

In sum, the record reflects that the facts pertinent to the
claim have been properly developed and that no further
development is required to comply with the provisions of the
VCAA or the implementing regulations.  That is to say,
"the record has been fully developed," and it is "difficult
to discern what additional guidance VA could [provide] to the
appellant regarding what further evidence he should submit to
substantiate his claim."  Conway v. Principi, 353 F. 3d. 1369
(Fed. Cir. 2004).  Accordingly, the Board will adjudicate the
claim.

Analysis

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

In McGinty v Brown, 4 Vet. App. 428 (1993), the Court, noting
the absence of specific statutory or regulatory guidance
regarding claims for residuals of asbestos exposure, observed
that some guidelines for compensation claims based on
asbestos exposure were published in DVB Circular 21-88-8,
dated May 11, 1998.  The DVB Circular was subsequently
rescinded but its basic guidelines are now found in Veterans
Benefits Administration (VBA) Adjudication Procedure Manual
M21-1 (M21-1), Part VI, para. 7.21 (January 31, 1997).

These guidelines note that inhalation of asbestos fibers can
produce fibrosis and tumors, that the most common disease is
interstitial pulmonary fibrosis (asbestosis), and that the
fibers may also produce pleural effusions and fibrosis,
pleural plaques, mesotheliomas of pleura and peritoneum, lung
cancer, cancers of the gastrointestinal tract, cancers of the
larynx and pharynx, and cancers of the urogenital system
(except the prostate).  See M21-1, Part VI, 7.21(a), p. 7-IV-
3 (January 31, 1997); see also Ennis v. Brown, 4 Vet. App.523
(1993).  It is noted that persons with asbestos exposure have
an increased incidence of bronchial, lung, pharyngolarygneal,
gastrointestinal, and urogenital, and that the risk of
developing bronchial cancer is increased in current cigarette
smokers who had asbestos exposure.  Id.

It is also noted that the latency period for asbestos-related
diseases varies from 10 to 45 or more years between first
exposure and development of the disease, that an asbestos-
related disease can develop from brief exposure to asbestos,
and that there is a prevalence of asbestos-related disease
among shipyard workers since asbestos was used extensively in
military ship construction.  M21-1, Part VI, 7.21(b), p. 7-
IV-3 (January 31, 1997).

More recently the Court has held that "neither Manual M21-1
nor the Circular creates a presumption of exposure to
asbestos solely from shipboard service.  Rather, they are
guidelines which serve to inform and educate adjudicators as
to the high exposure to asbestos and the prevalence of
disease found in insulation and shipyard workers and they
direct that the raters develop the record; ascertain whether
there is evidence of exposure before, during, or after
service; and determine whether the disease is related to the
putative exposure."  Dyment v. West, 13 Vet. App. 141
(1999); see also, Nolen v. West 12 Vet. App. 347 (1999);
VAOGCPREC 4-2000.

Turning to the case at hand, the veteran's service medical
record contain no complaints or diagnosis of asbestosis.  The
veteran's service records reflect that he served aboard a
Navy ship as an aviation ordnanceman.  As noted above, the
Court has determined that shipboard service in and of itself
does not create a presumption of exposure to asbestos.  The
veteran's service records do not reflect any specific
exposure to asbestos, although the Board notes the veteran's
contentions that he was exposed to asbestos in the service.
According to Navy documents, the likelihood of exposure to
asbestos for a person who served as an aviation ordnanceman
is minimal.

The record reflects that the veteran reported having
significant occupational exposure to asbestos subsequent to
naval service.  A private medical examination report from
October 2001 shows that the veteran reported a 40-year
history of smoking one pack of cigarettes a day and that
through his employment as a welder and pipe fitter, his
exposure to asbestos dust was "extensive."  A separate
October 2001 intake form from a private medical provider
shows that the veteran reported starting smoking at 18 years
of age and quitting smoking at 70 years of age, which amounts
to a more than 50-year smoking history.

A June 2006 letter from B.B., M.D., states that the veteran's
May 2005 chest x-ray showed a one cm. linear calcification in
the chest.  Dr. B.B. stated that such calcification is
usually attributed to the affect of asbestos inhalation and
it implies some degree of asbestos lung involvement or
asbestosis.  Dr. B.B. stated that, based on the veteran's
medical history, it is most likely that his exposure to
asbestos was during his time in the U.S. Navy and that he
believed it was reasonable to say that the likelihood of the
veteran's asbestosis is "greater than 51% related to" the
veteran's exposure to asbestos while in the Navy.

A September 2006 VA examination report shows that the
examiner reviewed the veteran's medical records and noted the
veteran's two years of service in the Navy and his subsequent
20-year career in pipefitting.  The veteran stated that he
had significant exposure to asbestos during his active duty
service in the Navy.  He stated that after the Navy, he
worked on and off for 30 years as a pipefitter and he was a
smoker for 50 years.  The veteran denied any nocturnal
paroxysmal dyspnea and unusual shortness of breath.  He
stated that he could walk on the treadmill for 30 minutes at
about three to four miles per hour without any unreasonable
shortness of breath.  He denied the use of an inhaler.

The examiner stated that the veteran's pulmonary function
test from October 2001 showed a mixed disorder with both
bronchospastic reversible changes and obstructive non-
reversible changes.  The examiner's final diagnosis was
emphysema with chronic obstructive pulmonary disease (COPD).
The examiner stated that it was his opinion that the
veteran's lung condition was less likely than not caused by
his military exposure to any asbestos.  The examiner noted
that the veteran's emphysema and COPD were more likely to be
a result of his smoking for 50 years and subsequent exposure
to asbestos as a civilian pipefitter.  The examiner stated
that it should also be noted that there was no direct
evidence in the veteran's claims file that indicated that a
positive diagnosis of asbestosis had been made by biopsy,
even though x-rays from his private physician show a one cm.
linear calcification in the dome of the right hemidiaphragm.
The examiner also noted that the veteran was much less
limited in pulmonary function that one would expect from an
early exposure to asbestos.  In an October 2006 addendum, the
examiner stated that examination of the veteran's chest
revealed no rhonchi or wheezes.  His AP diameter was slightly
increased and his breath sounds were somewhat distant and
diminished.

Initially the Board notes that it is unclear from the record
that the veteran even has a current diagnosis of asbestosis.
The June 2006 letter from Dr. B.B. states that the veteran's
chest x-ray shows results "usually attributed to
asbestosis"; however, this is not a diagnosis of asbestosis.
The September 2006 VA examination report contains diagnoses
of emphysema with COPD, but not of asbestosis.  In any event,
regardless of the current diagnosis, the medical evidence
clearly shows a current lung disability.  However, the
medical evidence of record preponderates against a finding
that the veteran's current lung disability is related to his
active duty service, to include his exposure to asbestos.

As noted above, there is one medical opinion of record which
indicates that the veteran currently has a diagnosis of
asbestosis attributable to asbestos exposure during active
duty service and one medical opinion of record which shows
that the veteran's current lung disabilities are more likely
related to his long history of smoking and civilian exposure
to asbestos.  The Court has held that the Board must
determine how much weight is to be attached to each medical
opinion of record.  See Guerrieri v. Brown, 4 Vet. App. 467
(1993).  Greater weight may be placed on one medical
professional's opinion over another, depending on factors
such as reasoning employed by the medical professionals and
whether or not, and the extent to which, they reviewed prior
clinical records and other evidence.  Gabrielson v. Brown, 7
Vet. App. 36 (1994).

In assessing evidence such as medical opinions, the failure
of the physician to provide a basis for his opinion goes to
the weight or credibility of the evidence in the adjudication
of the merits.  See Hernandez-Toyens v. West, 11 Vet. App.
379, 382 (1998).  Other factors for assessing the probative
value of a medical opinion are the physician's access to the
claims file and the thoroughness and detail of the opinion.
See Prejean v. West, 13 Vet. 444, 448-9 (2000).

The Board finds the June 2006 medical opinion from Dr. B.B.
to have low probative value for several reasons.  Once again,
the Board notes that Dr. B.B. does not definitively diagnose
the veteran with asbestosis.  The opinion states that the
type of calcification shown on the veteran's chest x-ray is
"usually attributed to the affect of asbestos inhalation and
implies some degree of asbestos lung involvement or
asbestosis."  The Board notes that 38 C.F.R. � 3.102
provides that service connection may not be based on a resort
to speculation or even remote possibility, and the Court has
provided additional guidance as to this aspect of weighing
medical opinion evidence.  See Morris v. West, 13 Vet. App.
94, 97 (1999) (diagnosis that appellant was "possibly"
suffering from schizophrenia deemed speculative); See also
Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's
statement that the veteran may have been having some symptoms
of multiple sclerosis for many years prior to the date of
diagnosis deemed speculative); Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992) (medical evidence which merely indicates
that the alleged disorder "may or may not" exist or "may or
may not" be related, is too speculative to establish the
presence of the claimed disorder or any such relationship).
Therefore, the Board finds that the opinion expressed by Dr.
B.B. that the calcification on the veteran's chest x-ray
results are "usually attributed" to the affect of asbestos
inhalation and "imply" asbestosis is too speculative in
nature to be highly probative as to whether the veteran has a
current diagnosis of asbestosis.  Moreover, the Board finds
that the medical opinion has little probative value because
it is unclear if the physician had access to the veteran's
service medical records prior to providing his opinion.
Finally, the Board notes that the physician did not provide
any rationale as to why, in his opinion, the veteran's
current lung disability was etiologically attributable to the
veteran's two years of Navy service in spite of a 20-30 year
history of exposure to asbestos as a civilian pipefitter and
a 40-50 year history of smoking.

On the other hand, the Board finds the September 2006 VA
medical opinion to be highly probative for two reasons.
First, the Board notes that it is clear that the examiner
reviewed the veteran's entire claims file, including the June
2006 opinion letter from Dr. B.B., prior to providing his
medical opinion  Second, the examiner provides a clear
rationale for attributing the veteran's current lung
disability to his smoking and civilian exposure to asbestos,
noting that the veteran's current presentation of minimal
limitation to pulmonary function is inconsistent with someone
who had early exposure to asbestos.

For these reasons, the Board finds that the September 2006 VA
medical opinion should be afforded greater probative value
than the June 2006 medical opinion from Dr. B.B.  As such,
the evidence preponderates against a finding that entitlement
to service connection for asbestosis is warranted, to include
as due to exposure to asbestos.

In reaching the above determination, the Board is unable to
find such a state of approximate balance of the positive
evidence with the negative evidence to otherwise warrant a
favorable decision as to the issue.  38 U.S.C.A. � 5107(b).

ORDER

Entitlement to service connection for asbestosis, to include
as due to exposure to asbestos, is denied.

____________________________________________
N. R. ROBIN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: WILLIAM YATES

disposition: remanded

text:
Citation Nr: 0717000
Decision Date: 06/07/07    Archive Date: 06/18/07

DOCKET NO.  04-14 982	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUE

Entitlement to an increased evaluation for residuals of a
dislocation of the right shoulder with degenerative joint
disease, currently assigned a 30 percent disability
evaluation.

REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady,
Attorney

WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

Jessica J. Wills, Associate Counsel
INTRODUCTION

The veteran served on active duty from June 1982 to September
1985.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a July 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Little Rock, Arkansas.

A hearing was held on December 14, 2004, by means of video
conferencing equipment with the appellant in Little Rock,
Arkansas, before William Yates, an acting Veterans Law Judge,
sitting in Washington, DC, who was designated by the Chairman
to conduct the hearing pursuant to 38 U.S.C.A. � 7107(c),
(e)(2) and who is rendering the determination in this case.
A transcript of the hearing testimony is in the claims file.

In a decision dated in March 2005, the Board denied the
veteran's claim for an increased evaluation for residuals of
a dislocation of the right shoulder with degenerative joint
disease.  The veteran then appealed the Board's March 2005
decision to the United States Court of Appeals for Veterans
Claims (Court) and in an Order dated in December 2006, the
Court remanded the case to the Board for proceedings
consistent with the Joint Motion for Remand (Joint Motion)
filed in this case.  The case was subsequently returned to
the Board for further appellate review.

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

REMAND

Reasons for Remand:  To afford the veteran a more recent VA
examination and to provide him with a corrective notice
letter.

The law provides that the VA shall make reasonable efforts to
notify a claimant of the evidence necessary to substantiate a
claim and requires the VA to assist a claimant in obtaining
that evidence.  38 U.S.C.A. �� 5103, 5103A (West 2002); 38
C.F.R. � 3.159 (2006).  Such assistance includes providing
the claimant a medical examination or obtaining a medical
opinion when such an examination or opinion is necessary to
make a decision on a claim.  38 U.S.C.A. �� 5103, 5103A (West
2002); 38 C.F.R. � 3.159 (2006).

As pointed out by the parties in the Joint Motion, VA failed
in its duty to assist the veteran in the development of his
claim.  In this regard, it was noted that the veteran had
testified at his December 2004 hearing that his service-
connected right shoulder disability had worsened since his
June 2003 VA examination.  However, the veteran was not
afforded an additional examination.  VA's General Counsel has
indicated that when a claimant asserts that the severity of a
disability has increased since the most recent rating
examination, an additional examination is appropriate.
VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober,
10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377
(1994).  Therefore, the Board finds that a VA examination is
necessary to determine the current severity and
manifestations of the veteran's service-connected right
shoulder disability.

Moreover, during the pendency of this appeal, on March 3,
2006, the United States Court of Appeals for Veterans Claims
(Court) issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the notice requirements of 38 U.S.C.A. � 5103(a)
and 38 C.F.R. � 3.159(b) apply to all five elements of a
service connection claim, including the degree of disability
and the effective date of an award. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).  In the present appeal,
the veteran was not provided with notice of the type of
evidence necessary to establish an effective date.  As that
question is involved in the present appeal and the case is
already being remanded for further development, the RO should
provide the veteran with a proper notice under 38 U.S.C.A. �
5103(a) and 38 C.F.R. � 3.159(b), that includes an
explanation as to the type of evidence that is needed to
establish an effective date.

Therefore, in order to give the appellant every consideration
with respect to the present appeal and to ensure due process,
it is the Board's opinion that further development of the
case is necessary. Accordingly, the case is REMANDED for the
following actions:

1.  The RO should send the veteran a
notice letter in connection with his
claim for an increased evaluation for
his right shoulder disability.  The
letter should include an explanation as
to the information or evidence needed to
establish a disability rating and an
effective date, as outlined by the Court
in Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).

2.  The veteran should be afforded a VA
examination to ascertain the severity
and manifestations of his service-
connected right shoulder disability.
Any and all studies, tests, and
evaluations deemed necessary by the
examiner should be performed.  The
examiner is requested to review all
pertinent records associated with the
claims file and to comment on the
severity of the veteran's service-
connected right shoulder disability.
The examiner should report all signs and
symptoms necessary for rating the
veteran's right shoulder disability
under the rating criteria.

A clear rationale for all opinions would
be helpful and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
Since it is important "that each
disability be viewed in relation to its
history [,]" 38 C.F.R. � 4.1 (2006),
copies of all pertinent records in the
appellant's claims file, or in the
alternative, the claims file, must be
made available to the examiner for
review.

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

The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time.  The appellant has the right to submit
additional evidence and/or argument on the matter or matters
the Board has remanded to the regional office. Kutscherousky
v. West, 12 Vet. App. 369 (1999).  No action is required of
the veteran until he is notified.

_________________________________________________
WILLIAM YATES
Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2006).


judge_norm: C CRAWFORD

disposition: granted

condition: liver

text:
Citation Nr: 0718000
Decision Date: 06/15/07    Archive Date: 06/26/07

DOCKET NO.  03-24 472	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington

THE ISSUES

1.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
Hepatitis, and, if so, whether service connection is
warranted.

2.  Entitlement to service connection for liver scarring.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. L. Krasinski, Counsel

INTRODUCTION

The veteran served on active duty from March 1967 to December
1968.  The service records show that the veteran was awarded
a Purple Heart, Combat Infantryman's Badge, and a Vietnam
Service Medal.

This matter is before the Board of Veterans' Appeals (Board)
on appeal from a November 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO), in
Seattle, Washington, which determined that new and material
evidence had not been received to reopen the claim for
service connection for Hepatitis, denied entitlement to
service connection for liver scarring, and assigned a 20
percent rating to the service-connected residuals of shell
fragment wounds to the eyes.  The veteran filed a notice of
disagreement as to all three issues in October 2002 and a
statement of the case was issued in June 2003.  However, the
veteran only filed a substantive appeal in August 2003 for
the issues of service connection for hepatitis and liver
scaring.  Thus, only these issues are before the Board for
appellate review.  See 38 C.F.R. � 20.200 (2006).

Although the RO reopened the claim for service connection for
Hepatitis in June 2003, the Board is required to first
consider whether new and material evidence had been presented
before the merits of claim can be considered.  The Board can
make an initial determination as to whether evidence is "new
and material."  See Jackson v. Principi, 265 F.3d 1366 (Fed.
Cir. 2001).

The issues of entitlement to service connection for Hepatitis
and liver scarring are addressed in the REMAND portion of the
decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
VA will notify the appellant if further action is required.

FINDINGS OF FACT

1.  In a February 1982 rating decision, the RO denied
entitlement to service connection for hepatitis.

2.  The evidence added to the record since the February 1982
rating decision, when considered by itself or in connection
with evidence previously assembled, is new and is so
significant that it must be considered in order to fairly
decide the merits of the claim of service connection for
hepatitis.

CONCLUSION OF LAW

Evidence added to the record since the final February 1982
rating decision is new and material; thus, the claim of
entitlement to service connection for hepatitis is reopened.
38 U.S.C.A. �� 5108, 7105 (West 2002); 38 C.F.R. � 3.156
(2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

Service Connection

Service connection will be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.

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 entity is established, there
is no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service 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.
38 C.F.R. � 3.303(b).

Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d).

New and Material Evidence

The governing regulations provide that an appeal consists of
a timely filed notice of disagreement in writing and, after a
statement of the case has been furnished, a timely filed
substantive appeal.  38 C.F.R. � 20.200.  Rating actions from
which an appeal is not perfected become final.  38 U.S.C.A.
� 7105; 38 C.F.R. � 20.1103.

A final decision cannot be reopened unless new and material
evidence is presented.  38 U.S.C.A. � 5108.  The Secretary
must reopen a finally disallowed claim when new and material
evidence is presented or secured with respect to that claim.
Knightly v. Brown, 6 Vet. App. 200 (1994).

For claims filed prior to August 29, 2001, new and material
evidence is defined as evidence not previously submitted to
agency decisionmakers which bears directly and substantially
upon the specific matter under consideration; which is
neither cumulative nor redundant; and which, by itself or in
connection with evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claim.  38 C.F.R. � 3.156(a) (2001).

Only evidence presented since the last final denial on any
basis (either upon the merits of the case, or upon a previous
adjudication that no new and material evidence had been
presented), will be evaluated in the context of the entire
record.  Evans v. Brown, 9 Vet. App. 273 (1996).

For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed.  Justus v.
Principi, 3 Vet. App. 510, 513 (1992).

Analysis

In a February 1982 rating decision, the RO denied entitlement
to service connection for hepatitis on the basis that there
was no evidence that the veteran currently had a residual
disability after being treated for hepatitis in service.  The
evidence of record at the time of this decision consisted of
the service medical records and a December 1981 VA
examination report.  The veteran was notified of this
decision and he did not file an appeal.  The February 1982
decision became final.  38 U.S.C.A. � 7105; 38 C.F.R.
� 20.1103.

In November 2000, the veteran filed a claim to reopen the
claim for service connection for hepatitis.  In order to
reopen a claim, new and material evidence must be submitted.
38 U.S.C.A. � 5018; 38 C.F.R. � 3.156.

The Board finds the May 2002 statement by Dr. J.F. to be new
and material evidence.  In this statement, Dr. J.F. stated
that blood work revealed a minimal elevation of the bilirubin
(a liver test) and one of three other liver tests was
elevated.  Dr. J.F. indicated that these slight liver
abnormalities may simply be a reflection of the veteran's
prior history of hepatitis and that periodic reassessment was
needed.

This evidence is new because it had not been previously
submitted to agency decisionmakers, and is neither cumulative
nor redundant.  This evidence is material because it bears
directly and substantially upon the specific matter under
consideration which is whether the veteran currently has a
residual disability due to the in-service hepatitis.  As
noted above, a reason for the denial of the claim in February
1982 was that there was no evidence of any residual
disability due to the hepatitis.  This evidence is
significant because it raises the possibility that the
veteran may have a liver disability due to the hepatitis and
this raises the possibility of service connection.
Therefore, the statement by Dr. J.F. must be considered in
order to fairly decide this claim.

An October 2004 VA treatment record indicates that blood
testing revealed that the veteran was HAV-AB positive.  This
evidence is new because it had not been previously submitted
to agency decisionmakers, and is neither cumulative nor
redundant.  This evidence is material because it may
contribute to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability.
A claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  Thus,
this evidence is new and material.

In conclusion, the Board finds that the evidence received
since the February 1982 rating decision is new and material,
and the claim for service connection for hepatitis is
reopened.

Duty to Notify and Duty to Assist

The Court has concluded that the Veterans Claims Assistance
Act of 2000 (VCAA), codified at 38 U.S.C.A. �� 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2006); was not
applicable where further assistance would not aid the
appellant in substantiating his claim.  Wensch v. Principi,
15 Vet App 362 (2001); see 38 U.S.C.A. � 5103A(a)(2)
(Secretary not required to provide assistance "if no
reasonable possibility exists that such assistance would aid
in substantiating the claim").  Regarding the application to
reopen the claim for service connection for Hepatitis, in
view of the Board's favorable decision to reopen the claim,
further assistance is unnecessary to aid the veteran in
substantiating the claim to reopen.

ORDER

New and material evidence having been received, the claim for
service connection for Hepatitis is reopened and the appeal
is granted to that extent.

REMAND

The Board finds that additional development is warranted
before the claims for service connection for hepatitis and
liver scarring can be decided on the merits.  The duty to
assist includes providing a medical examination or obtaining
a medical opinion when such an examination or opinion is
necessary to make a decision on the claim.  An examination is
necessary when the record contains competent evidence that
the claimant has a current disability or signs and symptoms
of a current disability, the record indicates that the
disability or signs and symptoms of disability may be
associated with active service; and the record does not
contain sufficient information to make a decision on the
claim.  38 U.S.C.A. � 5103A(d) (West 2002).  The evidence of
a link between current disability and service must be
competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir.
2003).

The veteran contends that he has a current liver disability
due to the in-service hepatitis.  Service medical records
indicate that from November 1967 to April 1968, the veteran
was hospitalized for infectious hepatitis.  A liver biopsy
performed in March 1968 was normal.  There is competent
evidence that the veteran may have current residual symptoms
or signs due to the in-service hepatitis.  In a May 2002
statement, Dr. J.F. stated that blood work revealed a minimal
elevation of the bilirubin (a liver test) and one of three
other liver tests was elevated.  Dr. J.F. indicated that
these slight liver abnormalities may simply be a reflection
of the veteran's prior history of hepatitis and that periodic
reassessment was needed.  An October 2004 VA record indicates
that blood testing revealed that the veteran was HAV-AB
positive.  The Board finds that a medical examination is
needed to clarify whether the veteran currently has a
residual disability and/or liver scarring or other liver
disability due to the hepatitis that he incurred in service.
38 U.S.C.A. � 5103A(d).

Accordingly, the case is REMANDED for the following action:

1.  The veteran should be afforded a VA
examination to determine the nature and
severity of any residual disability due
to the in-service hepatitis.  The
veteran's VA claims folder must be made
available to the examiner for review in
connection with the examination.  The
examiner should report all current
diagnoses.  The examiner should indicate
whether there is liver scarring or other
liver disability due to the hepatitis.
The examiner should provide a rationale
for all conclusions.

2.  Then the AMC/RO should readjudicate
the issues on appeal.  If all the desired
benefits are not granted, a supplemental
statement of the case should be furnished
to the veteran and his representative.
The case should then be returned to the
Board, if otherwise in order.

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

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2006).

______________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: BARRY F BOHAN

disposition: denied

text:
Citation Nr: 0719000
Decision Date: 06/22/07    Archive Date: 07/03/07

DOCKET NO.  04-16 453A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for residuals of a closed
head injury.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

D. Hachey, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1996 to April
2001.

This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an October 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Chicago, Illinois (the RO).

Procedural history

In March 2001, shortly before the veteran's discharge from
active duty, the RO received her claim of entitlement to
service connection for residuals of a closed head injury.
The October 2002 rating decision denied the claim, and she
appealed.

The veteran presented testimony before the undersigned
Veterans Law Judge during a May 2005 videoconference hearing.
A transcript of this hearing has been associated with the
veteran's VA claims folder.

Following the hearing, the Board remanded the case in July
2005 for the purpose of obtaining additional VA examinations.
The case was remanded a second time in May 2006 for the
purpose of ensuring compliance with the original remand
instructions.  See generally Stegall v. West, 11 Vet. App.
268, 271 (1998).  After the additional development requested
by the Board was accomplished, the VA Appeals Management
Center (AMC) again denied the claim in a March 2007
supplemental statement of the case (SSOC).  The case is now
once again before the Board.

Issues not on appeal

The July 2005 Board decision denied service connection for a
right index finger distal interphalangeal joint disability.
The May 2006 Board decision denied service connection for
allergic rhinitis.  Those issues have accordingly been
resolved by the Board, and they will be discussed no further
herein.  See 38 C.F.R. � 20.1100 (2006).

As was noted in the Board's May 2006 remand, the veteran's
representative suggested in a post-remand brief that the
veteran is entitled to service connection for a panic
disorder caused by an in-service motor vehicle accident.  The
veteran's current claim involves residuals of a closed head
injury (such as claimed memory loss, blackouts, and other
cognitive impairment) stemming from her in-service accident
and involves organic, as opposed to psychiatric, residuals.
The issue of service connection for an acquired psychiatric
disability has not been adjudicated by the RO and is
therefore not currently before the Board.  See Godfrey v.
Brown,
7 Vet. App. 398 (1995) [observing that the Board does not
have jurisdiction of issues not yet adjudicated by the RO].
That issue is referred to the RO for appropriate action.  The
Board intimates no opinion as to the outcome of any such
claim made by the veteran.

FINDING OF FACT

A preponderance of the competent medical evidence of record
demonstrates that the veteran does not have any residual
disability resulting from her in-service closed head injury.

CONCLUSION OF LAW

Service connection for residuals of a closed head injury is
not warranted.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R.
� 3.303 (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

In the interest of clarity, the Board will first discuss
certain preliminary matters.  The Board will then render a
decision on the issues on appeal.

Stegall concerns

As was alluded to in the Introduction, this issue was
remanded in May 2006 in order to ensure that the Board's
previous remand instructions were fully complied with.
See Stegall, supra. Specifically, the Board's previous remand
in July 2005 had instructed that the veteran be examiner by
both a psychiatrist and a psychologist; the veteran was
examined by a psychiatrist only.  A VA psychological
examination of the veteran was duly completed in September
2006.  The AMC readjudciated the claim via the March 2007
SSOC.  The Board's remand instructions have therefore been
followed.

The Veterans Claims Assistance Act of 2000

The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000 (VCAA) [codified as
amended at 38 U.S.C.A. �� 5102, 5103, 5103A, 5107) (West
2002)].  The VCAA includes an enhanced duty on the part of VA
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.  The VCAA
also redefines the obligations of VA with respect to its
statutory duty to assist claimants in the development of
their claims.

The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist.  The Board
will now address these concepts within the context of the
circumstances presented in this case.

Standard of review

After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record.  38 U.S.C.A. �
7104(a) (West 2002).  When there is an approximate balance of
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.  38
U.S.C.A. � 5107 (West 2002); 38 C.F.R. � 3.102 (2006)
[reasonable doubt to be resolved in veteran's favor].

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail."  To deny a claim on its
merits, the preponderance of the evidence must be against the
claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.

Notice

The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim.  As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. � 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].

To comply with VCAA notice requirements, the RO must satisfy
the following four requirements.

First, the RO must inform the claimant of the information and
evidence not of record that is necessary to substantiate the
claim.  See 38 U.S.C.A. � 5103 (West 2002); 38 C.F.R. �
3.159(b)(1) (2006).  The Board observes that letters were
sent to the veteran in August 2002 and June 2006 which were
specifically intended to address the requirements of the
VCAA.  The August 2002 letter from the RO specifically
notified the veteran that to support a claim for service
connection, the evidence must show an "injury in military
service or a disease that began in or was made worse during
military service, OR an event in service causing injury or
disease;" a "current physical or mental disability;" and a
"relationship between your disability and an injury,
disease, or event in service" (emphasis as in the original).

Second, the RO must inform the claimant of the information
and evidence VA will seek to provide.  See 38 U.S.C.A. � 5103
(West 2002); 38 C.F.R. � 3.159(b)(1) (2006).  In the June
2006 VCAA letter, the veteran was informed that VA was
responsible for obtaining "[r]elevant records from any
Federal agency" including "medical records from the
military, VA Medical Centers (including private facilities
where VA authorized treatment), or the Social Security
Administration."  He was further advised that VA would make
"reasonable efforts" to obtain "[r]elevant records not
held by any Federal agency" including records from "State
or local governments, private doctors and hospitals, or
current or former employers."  This letter also advised the
veteran that VA would be scheduling her for a physical
examination and notified her of the consequences of failing
to report for the same.

Third, the RO must inform the claimant of the information and
evidence the claimant is expected to provide.  See 38
U.S.C.A. � 5103 (West 2002); 38 C.F.R. � 3.159(b)(1) (2006).
The June 2006 letter notified the veteran that she "must
give us enough information about the evidence so that we can
request it from the person or agency that has it . . . [i]t
is your responsibility to make sure we receive all requested
records that are not in the possession of a Federal
department or agency" (emphasis as in the original).  More
specifically, the August 2002 letter advised the veteran that
if "there are private medical records that would support
your claim, complete, sign and return the enclosed VA Form
21-4142, Authorization and Consent to Release Information to
the Department of Veterans Affairs, and we will request those
records for you."  Alternatively, the veteran was advised
that she could "also get these records yourself and send
them to us."  The August 2002 letter further advised the
veteran that VA would obtain "any VA medical records or
other medical treatment records you tell us about."

Finally, the RO must request that the claimant provide any
evidence in her possession pertaining to the claim.  See 38
U.S.C.A. � 5103 (West 2002); 38 C.F.R. � 3.159(b)(1) (2006).
The August 2002 letter instructed the veteran to "tell us
about any additional information or evidence that you want us
to try to get for you."  The June 2006 letter also advised
the veteran that if "you have any additional evidence in
your possession, that pertains to your appeal, that you have
not yet submitted, please send it to us"  (emphasis as in
the original).  These requests comply with the requirements
of 38 C.F.R. � 3.159 (b) in that they informed the veteran
that she could submit or identify evidence other than what
was specifically requested by the RO.

In short, the record indicates that the veteran received
appropriate notice under 38 U.S.C.A. � 5103 and Quartuccio.

Review of the record reveals that the veteran was not
provided notice of the VCAA prior to the initial adjudication
of her claim.  The Board is of course aware of the Court's
decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004),
which appears to stand for the proposition that VCAA notice
must be sent prior to adjudication of an issue by the RO.  In
the instant case, the veteran was provided with VCAA notice
via the August 2002 and June 2006 VCAA letters.  Her claim
was then readjudicated in the March 2007 SSOC, after she was
provided with the opportunity to submit evidence and argument
in support of her claim and to respond to the VCAA notices.
Thus, any VCAA notice deficiency has been rectified, and
there is no prejudice to the veteran in proceeding to
consider her claim on the merits.

Moreover, the Court held in Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed.
Cir. 2006), that timing errors such as this do not have the
natural effect of producing prejudice and, therefore,
prejudice must be specifically pled.  In Mayfield, the
timing-of-notice error was found to be sufficiently remedied
and cured by subsequent provision of notice by the RO, such
that the appellant was provided with a meaningful opportunity
to participate effectively in the processing of her claim by
VA.  As discussed in the preceding paragraph, the veteran
received such notice and was given the opportunity to
respond.  The veteran has pointed to no prejudice resulting
from the timing of the VCAA notice.

Because there is no indication that there exists any evidence
which could be obtained which would have an effect on the
outcome of this case, no further VCAA notice is necessary.
See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001)
[holding that VCAA notice is not required where there is no
reasonable possibility that additional development will aid
the veteran].

One final comment regarding notice is in order.  In Dingess
v. Nicholson, 19 Vet. App. 473 (2006), the Court observed
that a claim of entitlement to service connection consists of
five elements:  (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date.  Because a service connection claim is
comprised of five elements, the Court further held that the
notice requirements of section 5103(a) apply generally to all
five elements of that claim.  Therefore, upon receipt of an
application for service connection, section 5103(a) and
section 3.159(b) require VA to review the information and
evidence presented with the claim and provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating the elements
of the claim as reasonably contemplated by the application.
This includes notice that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded.

In the instant case, element (1), veteran status, is not at
issue.  As outlined above, the veteran was advised by way of
the August 2002 and June 2006 VCAA letters of elements (2)
and (3), regarding existence of disability and its
relationship to service.  Moreover, the June 2006 letter also
advised the veteran of the information and evidence needed to
establish the earliest possible effective date and highest
possible rating for any potential grant of service
connection, thereby satisfying elements (4) and (5).

Based on this procedural history, the Board finds that the
veteran was properly notified of his statutory rights.

Duty to assist

In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim.  The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim.  An examination is deemed "necessary" if the
evidence of record (lay or medical) includes competent
evidence that the claimant has a current disability, or
persistent or recurrent symptoms of disability; and indicates
that the disability or symptoms may be associated with the
claimant's active military, naval, or air service; but does
not contain sufficient medical evidence for VA to make a
decision on the claim.  See 38 U.S.C.A. � 5103A (West 2002);
38 C.F.R. � 3.159 (2006).

The Board finds that all relevant evidence necessary for an
equitable resolution of the issue on appeal has been
identified and obtained, to the extent possible.
The evidence of record includes service medical records, VA
treatment records, and the reports of multiple VA
examinations.  The veteran and her representative have not
identified any outstanding evidence.

In short, the Board has carefully considered the provisions
of the VCAA in light of the record on appeal, and for the
reasons expressed above finds that the development of the
claim has been consistent with the provisions of that
statute.

The Board adds that general due process concerns have been
satisfied in connection with this appeal.  See 38 C.F.R.
� 3.103 (2006).  The veteran engaged the services of a
representative, was provided with ample opportunity to submit
evidence and argument in support of her claim, and provided
testimony at a May 2005 videoconference hearing.

Accordingly, the Board will proceed to a decision on the
merits as to the issue on appeal.

Pertinent Law and Regulations

In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303
(2006).

Additionally, 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.  See 38 C.F.R. � 3.303(d)
(2006).

In order to establish service connection for the claimed
disorder, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability.  See Hickson v.
West, 12 Vet. App. 247, 253 (1999).  The determination as to
whether these requirements are met is based on an analysis of
all the evidence of record and the evaluation of its
credibility and probative value.  See Baldwin v. West, 13
Vet. App. 1, 8 (1999).

Analysis

The veteran seeks service connection for residuals of a
closed head injury.  She essentially contends that she
suffered a head injury as a result of an in-service motor
vehicle accident and that such has led to memory loss,
blackouts, and a general cognitive decline.

Crucial to the award of service connection is the existence
of disability.  Without it, service connection cannot be
granted.  See Brammer v. Derwinski, 3 Vet. App. 233, 225
(1992) [noting that service connection presupposes a current
diagnosis of the claimed disability]; see also Chelte v.
Brown, 10 Vet. App. 268 (1997) [observing that a "current
disability" means a disability shown by competent medical
evidence to exist at the time of the award of service
connection].  The veteran, however, has failed to produce or
identify any competent medical evidence which reflects
residual disability from her in-service accident.

Several VA examinations of the veteran have been conducted to
assess her alleged symptomatology.  All fail to show a
current disability stemming from her in-service head injury.
On general medical examination in September 2002, the veteran
exhibited "no real cognitive deficit" or other residuals
from her in-service injury.  VA psychiatric examination in
September 2005 likewise yielded no evidence of "memory loss,
blackout spells, or other cognitive deficit."  Thought
process and communication were normal.

An additional examination by a VA physician in June 2006 also
produced "little evidence for memory loss or significant
concentration and attention problems."  An accompanying
neurological examination was likewise negative and reflected
no motor of sensory impairment.  The veteran was further
evaluated by a VA neuropsychologist in September 2006.  After
conducting a battery of testing, the neuropsychologist
determined that "no memory loss or abnormal cognitive
ability" was evident.  Follow up EEG and EMG studies were
within normal limits.

The veteran's VA outpatient treatment records are also
pertinently negative for treatment or diagnosis of any
residual disability resulting from in-service head trauma,
including memory loss or cognitive decline.  See Maxon v.
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it
was proper to consider the veteran's entire medical history,
including the lengthy period of absence of complaint with
respect to the condition now raised]; see also Forshey v.
West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v.
Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [observing
that the definition of evidence encompasses "negative
evidence" which tends to disprove the existence of an
alleged fact, i.e., the lack of evidence is itself evidence].

The only evidence in the claims file which suggests that the
veteran has any residual disability from her in-service head
injury is the veteran's own statements.  It is now well
settled, however, that lay persons without medical training,
such as the veteran, are not qualified to render medical
opinions regarding matters such as diagnoses of disability or
determinations of etiology, which call for specialized
medical knowledge.  See Espiritu v. Derwinski, 2 Vet. App.
492, 495 (1992); see also 38 C.F.R. � 3.159 (2006) [competent
medical evidence means evidence provided by a person who is
qualified through education, training, or experience to offer
medical diagnoses, statements, or opinions].  While the
veteran is free to comment on her perception of symptoms, she
is not competent to ascribe such to a particular diagnosis or
injury.  The veteran's statements regarding the existence of
head injury residuals are accordingly lacking in probative
value.

Throughout the six plus years this claim has been pending,
the veteran has had ample opportunity to submit evidence
demonstrating the existence of memory loss, cognitive
decline, or some other head injury residual.  She has also
been repeatedly notified, including in the August 2002 and
June 2006 VCAA letters, of the need to submit evidence of a
current disability.  This she has not done.  See 38 U.S.C.A.
� 5107(a) (West 2002) [noting that it is a claimant's
responsibility to support a claim for VA benefits].

Because the record contains no competent medical evidence
establishing the presence of any head injury residual,
service connection is not warranted.
See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997);
Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service
connection cannot be granted if the claimed disability does
not exist]. Accordingly, Hickson element (1), and the claim
fails on this basis.

The Board will briefly address the remaining two Hickson
elements.  With respect to element (2), it is uncontroverted
that the veteran was involved in a motor vehicle accident in
1998 with a brief period of loss of consciousness.  Element
(2) is therefore met.  With respect to element (3), medical
nexus, in the absence of a current disability medical nexus
is an impossibility.  There is in fact no competent medical
nexus opinion of record.  Element (3) is also not met.

In short, for reasons expressed immediately above, the Board
concludes that a preponderance of the evidence is against the
veteran's claim of entitlement to service connection for
residuals of a closed head injury.  The benefit sought on
appeal is accordingly denied.

ORDER

Service connection for residuals of a closed head injury is
denied.

____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: MARK F HALSEY

disposition: dismissed

text: The appeal is dismissed.

text:
Citation Nr: 0720000
Decision Date: 07/03/07    Archive Date: 07/13/07

DOCKET NO.  06-24 849	)	DATE
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Des Moines, Iowa

THE ISSUE

Entitlement to service connection for a left ankle
disability.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

David A. Brenningmeyer, Counsel

INTRODUCTION

The veteran served in the U.S. Army Reserve.  His service
included, among other things, a period of active duty for
training from August 1970 to January 1971.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 2006 decision by the RO which, in
pertinent part, denied service connection for a left ankle
disability.

FINDING OF FACT

In June 2007, the Board received a written communication from
the veteran's representative stating that the veteran wished
to withdraw his pending appeal; as of that date, the Board
had not yet promulgated a final decision on the issue
presented.

CONCLUSION OF LAW

The veteran's appeal has been withdrawn.  38 U.S.C.A.
� 7105(d) (West 2002); 38 C.F.R. � 20.204 (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

An appellant, or his authorized representative, may withdraw
an appeal to the Board by doing so in writing.  See 38 C.F.R.
� 20.204(b) (2006).  When he does so, the withdrawal
effectively creates a situation where there is no longer an
allegation of error of fact or law with respect to the
determination(s) that had been previously appealed.
Consequently, in such an instance, dismissal is appropriate.
See 38 U.S.C.A. � 7105(d) (West 2002).

In the present case, the veteran's representative, by way of
a written communication received at the Board in June 2007,
stated that the veteran wished to withdraw the pending
appeal.  As of that date, the Board had not yet promulgated a
final decision on the issue presented.  Because the veteran's
representative has clearly expressed a desire to terminate
the appeal, because he has done so in writing, and because
the Board had not yet promulgated a decision on the appeal at
the time of the request for withdrawal, the legal
requirements for a proper withdrawal have been satisfied.
38 C.F.R. � 20.204 (2006).  Accordingly, further action by
the Board on this appeal is not appropriate, and the appeal
will be dismissed.  38 U.S.C.A. � 7105(d) (West 2002).

ORDER

The appeal is dismissed.

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

 Department of Veterans Affairs


judge_norm: KEITH W ALLEN

condition: hypertension

text:
Citation Nr: 0721000
Decision Date: 07/13/07    Archive Date: 07/25/07

DOCKET NO.  05-15 249	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for hypertension, claimed
as secondary to
service-connected type-II diabetes mellitus.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

B. Adams, Associate Counsel

INTRODUCTION

The veteran had active military service from December 1969 to
December 1973.

This appeal to the Board of Veterans' Appeals (Board) arose
from an August 2004 rating decision of the RO in St. Louis,
Missouri.

In his May 2005 Substantive Appeal (VA Form 9), the veteran
requested a hearing at the RO before a Veterans Law Judge
(VLJ) of the Board.  This type of hearing is often called a
travel Board hearing.  In response to a May 2005 hearing
clarification form, however, he stated he no longer wanted
any type of hearing.  So his request for a travel Board
hearing is deemed withdrawn.  See 38 C.F.R. � 20.704(e)
(2006).

FINDING OF FACT

The medical evidence of record does not show the veteran's
hypertension was caused or made permanently worse by his
service-connected diabetes.

CONCLUSION OF LAW

The veteran's hypertension is not proximately due to, the
result of, or aggravated by his service-connected diabetes.
38 U.S.C.A. � 1110 (West 2002 & Supp. 2006); 38 C.F.R.
� 3.310(a) (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matters - The Veterans Claims Assistance Act
(VCAA)

The VCAA describes VA's duties to notify and assist claimants
in substantiating their claim for VA benefits.  38 U.S.C.A.
�� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2006); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2006).
In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112,
120-21 (2004), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide;
and (4) must request that the claimant provide any evidence
in his possession that pertains to the claim.  38 U.S.C.A. �
5103(a); 38 C.F.R. � 3.159(b).

The U.S. Court of Appeals for the Federal Circuit (Federal
Circuit Court) has clarified that the VCAA requires "a
deliberate act of notification directed to meeting the
requirements of section 5103, not an assemblage of bits of
information drawn from multiple communications issued for
unrelated purposes."  See Mayfield v. Nicholson, 19 Vet.
App. 103, 128 (2005), reversed and remanded, 444 F.3d 1328
(Fed. Cir. 2006), affirmed, No. 02-1077 (December 21, 2006).

In this case, VA complied with its Pelegrini II and Mayfield
notification requirements regarding the veteran's claim by
means of a letter dated February 2004.  This letter
specifically told him that VA needed specific information
regarding his claimed disorder and that if he had any
additional information or evidence that would support his
claim he should send it to VA.  Thus, he may be considered to
have been advised to submit any pertinent evidence in his
possession.  He has not identified any additional evidence
that needs to be obtained, and the Board finds that the duty
to assist has been met.  See Conway v. Principi, 353 F. 3d.
1369 (Fed. Cir. 2004).

To the extent possible, VCAA notice should be provided to a
claimant prior to the initial adjudication of the claim.  See
Mayfield, supra.  Here, this was indeed the case as the
February 2004 letter was sent prior to the initial
adjudication of the claim in August 2004.  In the April 2005
statement of the case (SOC), the claim was readjudicated
based on any additional evidence that had been received since
the initial rating decision in question.  See Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (indicating that,
even if there was no pre-decisional notice, going back and
readjudicating the claim once the notice is provided, such as
in a SOC, is sufficient to cure the timing defect).

The Court has also held that the VCAA notice requirements of
38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b) apply to all
five elements of a service connection claim.  Those five
elements are: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability.  Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  See also Dunlap
v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 2007).

In Dingess, the Court held that, upon receipt of an
application for a service-connection, 38 U.S.C.A. � 5103(a)
and 38 C.F.R. � 3.159(b) requires VA to review the
information and the evidence presented with the claim and
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim, as reasonably contemplated by the application.
Additionally, this notice must inform a claimant that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is granted.
Id.

The veteran's claim in this appeal is for service connection
for hypertension secondary to diabetes.  As mentioned, he was
provided notice of the type of information and evidence
needed to substantiate this claim.  He was not provided,
however, Dingess notice concerning the downstream disability
rating and effective date elements of his claim.  But this is
nonprejudicial because the Board is denying his underlying
claim for secondary service connection, so these downstream
disability rating and effective date elements become moot.
See Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16,
2007) (any errors in a VCAA notice, for any of the elements
of that notice, are presumed to be prejudicial unless
rebutted by VA).

The duty to assist has been fulfilled, as VA has obtained all
identified records pertaining to the claim on appeal - to the
extent the evidence mentioned is available - and the veteran
has been provided a VA examination.  There is no suggestion
on the current record there remains evidence that is
pertinent to the issue on appeal that has yet to be obtained.
Thus, the Board finds that VA has done everything reasonably
possible to notify and assist the veteran with his claim, and
that no further action is necessary to meet the requirements
of the VCAA.

Service Connection - In General

Service connection is available on both a direct and
secondary basis.  In this appeal, the veteran does not
allege, and the evidence does not otherwise suggest, that he
is entitled to service connection for hypertension on a
direct incurrence basis.  38 U.S.C.A. � 1110; 38 C.F.R. �
3.303(a).  Instead, he is claiming his hypertension is the
result of his already service-connected diabetes - so his
claim is predicated solely on the theory of secondary service
connection.  38 C.F.R. � 3.310(a).

Service connection may be granted on a secondary basis for a
disability that is proximately due to or the result of a
service-connected condition.  38 C.F.R. � 3.310(a); see also
Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional
disability resulting from the aggravation of a non service-
connected condition by a service-connected condition is also
compensable under 38 C.F.R. � 3.310(a).  See, too, Allen v.
Brown, 7 Vet. App. 439, 448 (1995).

In order to establish service connection for a claimed
disability on a secondary basis, three elements must be met.
There must be (1) medical evidence of a current disability;
(2) a service-connected disability; and (3) medical evidence
of a nexus between the service-connected disease or injury
and the current disability.  See Wallin v. West, 11 Vet. App.
509, 512 (1998).

Analysis

Although the veteran has a diagnosis of hypertension and is
service-connected for diabetes, there is no medical opinion
etiologically linking these two conditions.  Indeed, to the
contrary, the July 2004 examiner indicated there is no
medical evidence of a relationship between the veteran's
hypertension and diabetes.  In the absence of any medical
evidence supporting a connection between these conditions, in
this particular instance, the veteran's claim for service
connection for hypertension secondary to his service-
connected diabetes fails.  See Id.

The only evidence suggesting a correlation between the
veteran's hypertension and his diabetes comes in the way of
his own unsubstantiated allegations.  It is well established,
however, that a layman without medical training, such as the
veteran, is not competent to provide nexus evidence.
Instead, this type of evidence must be provided by someone
with medical knowledge and training - the appropriate
expertise.  See Espiritu v. Derwinski, 2 Vet. App. 492
(1992).

The Board acknowledges that in a March 2004 statement the
veteran contended that C. Taylor-White, a nurse practitioner
who provided his VA treatment, informed him that his
hypertension was secondary to his diabetes.  In the absence
of any documentation, however, there is only the veteran's
account of his health care provider's opinion.
Unfortunately, the veteran's account of what a health care
provider purportedly said, as filtered through a lay person,
cannot constitute competent medical evidence.  See Robinette
v. Brown, 8 Vet. App. 69, 77 (1995); see, too, LeShore v.
Brown, 8 Vet. App. 406, 409 (1995).

In summary, the veteran's claim lacks medical evidence of a
nexus between his hypertension and his service-connected
diabetes.  His claim for secondary service connection fails
on this basis.  Since the preponderance of the evidence is
against his claim, there is no reasonable doubt to resolve in
his favor.  See 38 C.F.R. � 3.102 (2006); Alemany v. Brown, 9
Vet. App. 518, 519 (1996).

ORDER

The claim for service connection for hypertension, claimed as
secondary to
service-connected diabetes, is denied.

____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: RENÉE M PELLETIER

text:
Citation Nr: 0722000
Decision Date: 07/20/07    Archive Date: 08/02/07

DOCKET NO.  06-01 136	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for hypertension.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Johnson, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1988 to March
1988 and from October 1988 to April 1993.

This case comes before the Board of Veterans' Appeals (Board)
on appeal from an April 2005 decision rendered by the Togus,
Maine Regional Office (RO) of the Department of Veterans
Affairs (VA), which denied a claim of entitlement to service
connection for hypertension.

The veteran testified before the undersigned Veterans Law
Judge at a hearing in December 2006.  A transcript of the
hearing is of record.

FINDING OF FACT

Hypertension did not manifest during active duty service or
for many years thereafter; and has not been shown to be
related to military service by competent medical evidence.

CONCLUSION OF LAW

Hypertension was not incurred in or aggravated by the
veteran's active duty service, nor may it be presumed to have
been incurred therein.  38 U.S.C.A. �� 1110, 1131, 5103,
5103A, 5107 (West Supp. 2005); 38 C.F.R. �� 3.303, 3.307,
3.309 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a), and as interpreted by the United States Court of
Appeals for Veterans Claims (the Court) have been fulfilled
by information provided to the veteran in a letter from the
RO dated in May 2004.  This letter notified the veteran of
VA's responsibilities in obtaining information to assist the
veteran in completing his claim, identified the veteran's
duties in obtaining information and evidence to substantiate
his claim, and requested that the veteran send in evidence in
his possession that would support his claim.  (See 38 C.F.R.
�� 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi,
16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App.
112 (2004).  See also Mayfield v. Nicholson, 19 Vet. App.
103, 110 (2005), reversed on other grounds, 444 F.3d 1328
(Fed. Cir. 2006).

During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
� 5103(a) and 38 C.F.R. � 3.159(b) apply to all five elements
of a claim, including the degree of disability and the
effective date of an award.  Because this claim is being
denied, any other notice requirements beyond those cited for
service connection claims, are not applicable.  Moreover,
there has been substantial compliance with all pertinent VA
law and regulations as stated above, and the veteran was
afforded the opportunity to present oral testimony in support
of his claim.  Therefore, to move forward with adjudication
of this claim would not cause any prejudice to the veteran.
See Bernard v. Brown, 4 Vet. App. 384 (1993).

Factual Background and Analysis

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service.  38 U.S.C.A. �� 1110, 1131 (West 2002);
38 C.F.R. � 3.303.

Service connection may be established under the provisions of
38 C.F.R. � 3.303(b) when the evidence, regardless of its
date, shows that a veteran had a chronic condition in service
or during the applicable presumptive period.  In addition,
certain chronic diseases, including hypertension, may be
presumed to have been incurred or aggravated during service
if they become disabling to a compensable degree within one
year of separation from active duty.  38 U.S.C.A. �� 1101,
1112; 38 C.F.R. �� 3.307, 3.309.

The veteran contends he developed hypertension during active
duty and is thus entitled to service connection.  The Board
has considered the veteran's contentions, but finds however,
that the preponderance of the evidence is against the claim.

Service medical records from the veteran's active duty
service are negative for diagnoses of, or treatment for
hypertension.  These records include blood pressure readings
as follows: in February 1992, 139/73; in March 1992, 130/92;
in November 1992, 140/80; in March 1993, 152/88 and 140/88;
and in April 1993, 156/70 and 130/82.  A chest x-ray in
February 1993 revealed no acute cardiopulmonary diseases.
The veteran denied high blood pressure on his March 1993
Report of Medical History form.  The March 1993 separation
physical examination was likewise negative for a clinical
finding of hypertension, and the veteran's blood pressure was
noted to be 110/88.

Post-service medical evidence consists of both private and VA
outpatient treatment records.  Private medical records were
obtained from L. M. H., dated between March 1996 and April
1998; from E.K.L., dated in October 2002; from St. Mary's
Regional Medical Center, dated in May 2004; and from Central
Maine Medical Center, dated from November 2004 to January
2006.  VA outpatient treatment records date from May 1996 to
July 2005 are also of record.

Of particular note are private treatment records from L. M.
H., dated in April 1996.  These records show the veteran
presented with complaints of increased blood pressure and a
flushed feeling, three weeks in duration.  The veteran's
blood pressure reading was 144/68.  He was given a
prescription for Procardia at this time.  Additional records
dated April 1996 reflect that the veteran was diagnosed as
being in an "anxiety tension state."  The VA outpatient
treatment records of note include a May 1996 record, which
shows the veteran reported symptoms of constant light-
headedness and dizziness, and arm numbness.  The clinical
note shows a diagnostic impression of hypertension.  Another
VA record dated in June 1996 shows the veteran complained of
a 12-week intermittent history of chest pains, dizziness, and
palpations.  In a November 1996 clinic note, the veteran
reported a negative Holter monitor and echocardiogram.
Pulmonary function tests showed mild obstruction.  Additional
VA treatment records continue to reflect general findings and
treatment related to hypertension.

The veteran underwent a VA examination in August 2005, where
he denied having high blood pressure prior to service; but
rather stated that he developed problems at the time of his
separation from service.  The veteran indicated that during
his separation examination, he was told to watch his pressure
and was not retained in the service as a result of his blood
pressure.  The veteran also reported that he had been seen at
Liberty Memorial Hospital (LMH) within six months after
service because his blood pressure had spiked.  He alleged
that he was placed upon medications at this time, upon which
he has since remained.

The examiner noted that the veteran smoked for about 10
years, up to one and one-half pack per day, quitting two
years ago.  His past alcohol consumption was reported as 4
drinks per week.  Caffeine intake with approximately one cup
of coffee a day, variable.  The examiner also noted that
there was no evidence of renal disease, and that records
between 1996 and 1997 showed normal renal function.

The examiner reviewed the veteran's claims file and noted
that the service medical records revealed no diagnosis of
hypertension.  It was noted that there had only been one
instance of elevated blood pressure, in March 1992; the
remaining readings were within normal limits.  The examiner
also indicated that the chest x-rays taken in February 1993
revealed normal heart and lungs.  In addition, the veteran
did not indicate high blood pressure as a problem on his
self-reported medical history form at the time of his
separation examination.

Moreover, despite the veteran's report that he was treated
for hypertension within six months after separation from
service; the examiner indicated that he was unable to locate
any records in the record, dated within one year of
separation from service, which reflected elevated blood
pressure readings.  The available medical records from LMH
begin in 1996 and show ongoing treatment for hypertension
since then.  The records show the veteran was initially
prescribed Procardia for hypertension in April 1996,
following a complaint of elevated blood pressure, redness in
the face and a flushed feeling.  A diagnosis of hypertension
was subsequently made in May 1996, at which time the veteran
was placed on another anti-hypertensive medication.

In his conclusion, the examiner stated that there was no
evidence of a diagnosis of hypertension in service.  There
are no medical records available from the time of separation
until 1996, when it appears the veteran was diagnosed with
hypertension.  Thus, based upon the information currently
available, it was not as likely as not, that hypertension was
related to military service.

The veteran testified at a video-conference hearing in
December 2006.  He stated that he had not been informed of
any high blood pressure readings during active duty, nor had
he been placed on blood pressure medications.  He testified
further that he was first diagnosed with hypertension in
1995, when he received emergency treatment at LMH for
elevated blood pressure, and was given medication at that
time.  In response to direct questioning, the veteran further
testified that he was not aware of having any episodes of
high blood pressure between 1993 and 1995, as he was not
being followed by a physician at that time.

Based upon a review of the cumulative medical evidence and
the veteran's testimony in this case, the Board finds that
service connection for hypertension is not warranted.

For purposes of VA compensation, the term "hypertension"
means that the diastolic blood pressure is predominantly 90
mm. or greater, and isolated systolic hypertension means that
the systolic blood pressure is predominantly 160 mm. or
greater with a diastolic blood pressure of less than 90mm
(see 38 C.F.R. � 4.104, note following Diagnostic Code 7101
(2006).

In the present appeal, there is no medical evidence that the
veteran had a chronic disability manifested by hypertension
during service, or within a year upon separation from
military service.  Rather, the preponderance of the evidence
shows that hypertension was not manifested until several
years after separation from active duty military service.

In this regard, the Board notes that the available blood
pressure readings taken throughout service were, for the most
part, within normal limits; and hypertension was not noted
during the March 1993 separation physical examination.  Also,
a VA physician reviewed the veteran's service and post-
service medical history, and opined that it was not as likely
as not, that the current hypertension is related to military
service.  The veteran has not provided any medical opinions
or medical evidence to refute this opinion.  The Board also
notes that while the veteran currently receives treatment for
hypertension, there is no competent medical evidence of
record, which demonstrates an etiological relationship
between the currently manifested hypertension to the
veteran's active duty military service.  The evidence of
record also does not indicate the date of onset of the
current hypertension.

Furthermore, the veteran provided testimony that he was not
informed by military medical personnel that he had
hypertension, at any time during active duty.  By his own
report, a diagnosis of hypertension was not rendered until,
at the very earliest, in 1995, when he was treated at LMH.
This statement conflicts with the veteran's history as
related to the VA examiner-as he reported then that he was
treated for hypertension within six months of service.  Thus,
if the Board is to accept the veteran's testimony,
hypertension may not be presumed to have been incurred in
service as the first manifestation was not within one-year of
separation.

The Board observes that the records from LMH contain one
reference to treatment received as early as December 1993;
thereby suggesting that there perhaps were outstanding
treatment records not yet associated with the veteran's
claims file.  In October 2005, the RO sent correspondence to
the veteran, which notified him of this discovery, and
requested that he complete an authorization and consent form
in order to request any additional records dating between
1993 and 1996.  The veteran did not respond to the RO's
correspondence.  The Board points out that the duty to assist
is not always a one-way street.  If a veteran wishes help, he
cannot passively wait for it in those circumstances where he
may or should have information that is essential in obtaining
the putative evidence.  Wood v. Derwinski, 1 Vet. App. 190,
193 (1991).  As the veteran did not provide the necessary
consent, any additional medical evidence that may have
potentially proven beneficial to his claim was not obtained.

In conclusion, hypertension is not shown to have manifested
during active duty service, or within one-year of separation.
There is no competent medical evidence to show otherwise, or
to establish an etiological link between the current disorder
and service.  While the veteran may sincerely believe that
his current hypertension disorder is related to military
service, there is no indication that he possesses any
specialized medical knowledge or training.  As such, he is
not competent to provide evidence that requires medical
knowledge.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Therefore, the Board accordingly finds that service
connection is not warranted.

On the basis of the foregoing, the Board finds that the
criteria for establishing service connection for hypertension
have not been met.  In reaching this conclusion, the Board
has considered the applicability of the benefit-of-the-doubt
doctrine.  However, as the preponderance of the evidence is
against the veteran's claims, that doctrine is not applicable
in this appeal.  See 38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. at 55-57 (1990).

ORDER

Service connection for hypertension is denied.

____________________________________________
REN�E M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs