judge_norm: G H SHUFELT

condition: back

text:
Citation Nr: 9932000
Decision Date: 11/12/99    Archive Date: 11/19/99

DOCKET NO.  94-14 478	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut

THE ISSUES

1.  Entitlement to an increased rating for residuals of
recurrent disc surgery and lumbar spine fusion, currently
evaluated as 40 percent disabling.

2.  Entitlement to a compensable rating for meralgia
paresthetica on the left.

REPRESENTATION

Appellant represented by:	Military Order of the Purple
Heart

WITNESSES AT HEARING ON APPEAL

Appellant and R.T.

ATTORNEY FOR THE BOARD

A. Shawkey, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1968 to
January 1970.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a December 1993 rating decision of the
Department of Veterans Affairs (VA) regional office (RO) in
Hartford, CT, that denied a rating greater than 40 percent
for the veteran's service connected status post recurrent
disc surgery and lumbar fusion L-4, S-1, and denied a
compensable rating for meralgia paresthetica on the left.

At a hearing before a member of the Board in July 1999, the
veteran raised claims of service connection for circulatory
problems in his legs as well as a loss of feeling in the
bottom part of his foot.  These issues have not been properly
developed for appellate review and are referred to the RO for
appropriate action.

FINDINGS OF FACT

1.  Residuals of recurrent disc surgery and lumbar fusion are
pronounced, with persistent symptoms compatible with
radiculopathy on the right with characteristic pain,
demonstrable muscle spasm, and limitation of motion.

2.  Meralgia parasitica on the left is not productive of
severe to complete paralysis.

CONCLUSIONS OF LAW

1.  The criteria for a 60 percent rating for pronounced
intervertebral disc syndrome have been met.  38 U.S.C.A.
� 1155 (West 1991); 38 C.F.R. � 4.71a, Diagnostic Code 5293
(1998).

2.  The criteria for a compensable rating for meralgia
paresthetica on the left have not been met.  38 U.S.C.A.
� 1155 (West 1991); 38 C.F.R. � 4.124a, Diagnostic Code 8529
(1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual Background

The veteran's service medical records show that in August
1969 he fell out of a truck striking his back marking the
onset of low back pain and radiating left posterior leg pain.
He was hospitalized approximately one month later due to
continuing back and leg symptomatology.  The hospital records
show that prior to service, in 1965, the veteran had
undergone a hemilaminectomy for a ruptured disc on the right,
but had been asymptomatic until the service injury.  The
hospital records further contain diagnoses of possible
herniated nucleus pulposus and status postoperative
hemilaminectomy.  The discharge report shows that the veteran
was being air evacuated to "CONUS" for further evaluation
and disposition due to a lack of response to conservative
therapy and in view of his previous history of back surgery.

An undated Medical Board Report reflects diagnoses of
lumbosacral radiculitis and status postoperative right L4 and
L5 disc removal, remote.  This report also contains the
Medical Board's recommendation that the veteran be presented
to a Physical Evaluation Board.  The claims file does not
include a report from the Physical Evaluation Board

The veteran's DD Form 214 shows that he was honorably
discharged from service in January 1970 due to physical
disability.

In February 1970 the veteran filed an initial claim of
service connection for lumbosacral radiculitis.

In a March 1970 rating decision, the RO granted service
connection for lumbosacral radiculitis, status postoperative,
right, L4, L5 disc removal remote, and assigned a 20 percent
rating.

In February 1971 the veteran underwent excision of a
recurrent ruptured disc, L4, right, at a private hospital.
Operative findings revealed an extremely large fragment of
recurrent ruptured disc, as well as extensive scar tissue.
The veteran was noted to have done quite well postoperatively
except for some residual aching discomfort in the lower back.

In an April 1971 rating decision, the RO increased the
veteran's service-connected back disability to 40 percent
disabling.

A private hospital operative note shows that in August 1974
the veteran underwent bilateral hemilaminectomy L4-5 and
decompression of L5 root bilaterally with fusion.

In a February 1976 rating decision, the RO granted service
connection for neuralgia paresthetica, left, and assigned a
noncompensable rating.  The RO referenced private medical
evidence which showed that the veteran had been readmitted to
a private hospital for operative decompression of the left
lateral femoral cutaneous nerve at the inguinal ligament
because of a persistent back pain following the lumbar fusion
performed in August 1974.

Due to a recurrence of left leg symptomatology in February
1979, the veteran underwent exploration of the left lateral
femoral cutaneous nerve.

In an October 1982 decision, the Board denied the veteran's
claim for a rating greater than 40 percent for post recurrent
disc surgery with lumbar fusion, and denied his claim for a
compensable rating for meralgia paresthetica.

The veteran was admitted to a private hospital for two days
in June 1992 with symptomatic venous varicosities involving
the left leg.

VA treatment records dated in October 1992 reflect a four day
history of low back pain and a diagnosis of lumbosacral
strain.

In December 1993 the veteran filed claims for increased
ratings for his post recurrent disc surgery with lumbar
fusion disability and meralgia paresthetica, left.  The RO
denied these claims in a December 1993 rating decision.

Also in December 1993 the veteran underwent anterior cervical
disc excision at C6-7 on the right and fusion at C6-7.

Private treatment records from J.M.H., M.D., include a
December 1993 notation of chronic low back and leg pains.

The veteran said in a March 1994 substantive appeal that his
legs and back had gotten progressively worse over the last
few years and that he had little intermittent pain relief in
his legs.

VA medical records show that the veteran had been
hospitalized in June 1994 for pain management of his low back
and right leg.  It was determined that the veteran's pain was
probably secondary to mild irritation of nerve roots by scar
tissue.  Electromyelogram (EMG) studies revealed no actual
nerve damage and a lack of radiculopathy by EMG/Nerve
Conduction Studies (NCS) and, the absence of true motor
weakness and intact reflexes indicated that conservative
therapy was warranted.  The veteran was given a final
diagnosis of rehabilitation for chronic pain.

A VA physician submitted a letter in October 1995 noting that
veteran's concerns about not getting the proper examinations
and diagnoses for his multiple mental and physical problems.
He said that up until 1993, following several lumbar
laminectomies, the veteran had been able to play racquetball
three times a week.  He also said that the anesthesia over
the veteran's left thigh was due to interruption by surgery
of the left lateral cutaneous femoral nerve.  He said that
this was sensory, not motor, and superficial.  He also said
that there was conflicting EMG/NCS results on file regarding
the veteran's back and leg disabilities.

In April 1996 the RO received records from the Social
Security Administration which show that the veteran had been
found to be disabled in December 1993 due to psychiatric
problems.

At a VA orthopedic examination in December 1996, the veteran
complained of severe and disabling back and right leg pain
since the mid 1970s.  He reported daily back and right leg
pain causing difficulty sleeping, sitting and driving.  He
said that he forced himself to perform activities of daily
living, but paid with it in the sense of pain.  He said that
he took extensive medication including multiple long-standing
narcotic use for his back and leg pain.  He also said that he
stopped work in 1993 primarily because of his service-
connected psychiatric disability.  On examination the veteran
had obvious and palpable muscle spasm in the paraspinous
musculature of the upper lumbar spine.  Range of motion was
significantly limited.  The veteran flexed to 30 degrees,
extended to neutral, laterally bended to 5 degrees and
laterally rotated to 5 degrees on either side.  Straight leg
raising was 80 degrees on the right.  Deep tendon reflexes
were 1+ at the patella and absent at the ankle.  X-rays of
the lumbosacral spine dated in January 1995 demonstrated
marked degenerative changes at L5-S1, moderate to marked at
L4-5, and foraminal narrowing.  The examiner said that the
veteran had long-standing service-connected back problems
that were not likely to resolve and that it was unlikely that
he would return to his previously level of function.  He said
that the veteran's prognosis was poor. He also said that the
veteran's lateral femoral cutaneous nerve injury of the left
lower extremity was long-standing and irreversible despite
two attempts at decompression.  He said that the veteran
would likely always have numbness along the anterolateral
aspect of his thigh on the basis of an injury to his nerve.

At a VA neurology examination in December 1996, the veteran
complained of back pain and spasms with radiation to the
right calf.  Findings of the lower extremities revealed good
strength with some decreased bulk right vastus medialis and
decreased sensation of the left anterolateral thigh.  The
veteran was able to walk on his toes and heels.  Back flexion
was to 60 degrees and straight leg rasing was to 80 degrees.
X-ray results revealed degenerative disc disease at L4-5 and
L5-S1, but no physical findings.  The veteran was diagnosed
as having right L-5 radiculopathy secondary to degenerative
disc disease L4-5 and L5-S1 with back and right leg pain
daily.  He was also diagnosed as having meralgia paresthetica
left lateral femoral cutaneous nerve with numbness of the
anterolateral thigh.

In a February 1998 statement the veteran expressed his
disagreement with the RO's determination that his condition
had not worsened over the last 30 years.

In July 1998 the veteran underwent an orthopedic evaluation
after undergoing a myelogram computed tomography.  The
physician stated that the veteran had evidence of mild
arachnoiditis on the right at L4-5 as well as disc osteophyte
complex with lateral recessed stenosis.

An August 1998 VA psychiatric progress note contains the
veteran's complaint of increased back pain in recent weeks.

The claims file contains additional VA and private treatment
records in the 1990s that reflect the veteran's complaints of
low back and leg pain.

In August 1998 the veteran underwent a VA neurology
examination.  The examiner noted that he had not been
provided any medical records other than what the veteran had
provided.  At the examination the veteran reported constant
pain in his low back which worsened over the course of the
day and was at its worse at night with radiation into the
right lower extremity.  He also complained of paresthesia in
his right medial leg and foot and to a lesser degree in his
right calf.  He complained of having no feeling (numbness) in
his left anterior thigh.  It is noted that the veteran did
not actually have pain in his left thigh at that time and
therefore did not actually have meralgia paresthetica, but
that he did have sensory abnormality residual from this and
his nerve decompression surgery.  The examiner identified the
involved nerve as the lateral cutaneous nerve of the thigh,
also called the lateral femoral cutaneous nerve.  Motor
examination showed that there was normal power, tone, and
bulk throughout the lower extremities bilaterally.  The deep
tendon reflexes could only be obtained with facilitation and
when this was performed, were actually brisker in the right
knee than left with specific findings in 2+ in the right
knee, 1+ in the left knee, 1+ in both ankles and the plantar
responses were flexor.  Sensory examination showed decreased
pinprick sensation in the right great toe, medial foot and
leg, and decreased pinprick in the left dorsum of the foot.
There was also absent pinprick on the left anterior and lower
lateral thigh consistent with injury to the lateral cutaneous
nerve of the thigh.  The veteran's gait showed that he
favored the right lower extremity a little, but otherwise
walked fairly normally, including walking on the heels and
toes and tandem walking, with some effort.

The neurological examiner diagnosed the veteran as having
sensory loss relating to neuropathy of the lateral femoral
cutaneous nerve.  He said that the veteran did not have pain
in that distribution at that time which meant he did not
really have meralgia paresthetic, but that he did have
residual loss of sensation in that nerve territory. He also
said that the veteran had chronic low back pain and lumbar
disc disease, with some sensory abnormalities in the
territories of multiple nerve roots in the right lower
extremity.

At a VA orthopedic examination in August 1998, the veteran
complained of near constant spasms in the right side of his
back which caused him to lift to the side.  He reported
having an exercise intolerance secondary to leg pain after
walking several blocks.  It is noted that he was dependent on
a lumbar brace and should have been using a cane for
ambulation.  On examination the veteran walked with obvious
antalgia and lifted to the right.  He had a well healed eight
inch incision.  He had palpable rock hard paraspinous muscle
spasms present, greater on the left than the right.  Range of
motion findings included flexion to 50 degrees, extension of
0, lateral bending to the left of 5 degrees and to the right
of 10 degrees.  Lateral rotation was to 5 degrees on either
side.  Deep tendon reflexes were positive on the right side
at 70 degrees.  There was decreased deep tendon reflexes.
Straight leg raising was positive on the right at 70 degrees.
Strength was 5/5 in the lower extremity.  There was numbness
along the distribution of the lateral femoral cutaneous nerve
on the left.  The examiner assessed the veteran as having
progressive deterioration of his degenerative arthritis of
the lumbosacral spine as well as significant spinal stenosis
necessitating decompressive surgery in an attempt to
alleviate his symptoms.  He said that this represented a
significant deterioration of the veteran's clinical condition
since the last examination that he conducted in 1996.  He
opined that the veteran was significantly disabled on the
basis of his low back problems and that he would need further
surgical procedures in the near future.  He also said that
the veteran's myalgia paresthetica of the left leg was
unchanged.

A VA psychiatric progress note in January 1999 shows that the
veteran had to cancel a medical appointment due to severe
back pain.

At a VA central office hearing in July 1999, the veteran
testified before a member of the Board that he had no feeling
in his left thigh, but that he did experience a burning
"pins and needles" sensation in the thigh.  He said that he
was forced to put a lot of stress on his right leg as a
result of his left leg problems and that this caused him to
limp.  A friend of the veteran testified that he served with
him in Vietnam and had observed the veteran's pain on a daily
basis.  The veteran's representative pointed out that
orthopedic findings in August 1998 meet the criteria for a 60
percent evaluation based on positive finding of muscle spasm,
pain and decreased ankle jerk.  The veteran said that he was
unable to drive a car more than 20 minutes, was unable to sit
in a car, and was unable to sit for prolonged periods of
time.  He said that he was a big guy, but was unable to
participate in anything.  He said that he could not do
housework and was extremely limited in physical activities.
He said that he is sometimes bedridden for two to three days
because of his back spasms.  He said that he experienced back
spasms every day.  He said that about fours after getting up
in the morning he had to take a Morphine pill for pain.

II.  Legal Analysis

The veteran's claims for increased ratings for his service-
connected back and meralgia paresthetica disabilities are
well grounded meaning plausible.  The file shows that the RO
has properly developed the evidence, and there is no further
VA duty to assist the veteran with his claim.  38 U.S.C.A.
� 5107(a) (West 1991).

Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.

The history of the veteran's spine and left leg disabilities
have been considered, although the present level of
disability is of primary concern when determining whether he
is entitled to higher evaluations.  Francisco v. Brown, 7
Vet. App. 55 (1994).

Back Disability

Since the maximum evaluation is 40 percent for limitation of
motion of the lumbar spine (38 C.F.R. � 4.71a, Diagnostic
Code 5292) as well as for chronic lumbosacral strain (Code
5295), the Diagnostic Code under consideration for an
increased evaluation in excess of 40 percent is Code 5293 for
intervertebral disc syndrome.  Under this code, a 40 percent
evaluation is warranted when there is severe intervertebral
disc syndrome with recurring attacks with intermittent
relief.  A 60 percent evaluation is warranted for pronounced
intervertebral disc syndrome with persistent symptoms
compatible with sciatic neuropathy, with characteristic pain
and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to the site of the diseased
disc, and little intermittent relief.

With respect to DC 5293, the General Counsel held in a
December 1997 opinion (VAOPGPREC 36-97) that loss of range of
motion was to be considered under this code, including loss
of motion due to pain under 38 C.F.R. �� 4.40. 4.45, if a
veteran was in receipt of less than the maximum evaluation.

Findings from recent VA examinations in 1998, as well as
recent treatment records, clearly support a 60 percent rating
for intervertebral disc syndrome that is pronounced.  Such
findings include demonstrable muscle spasms noted on
palpation at the 1998 examinations which were described by
the orthopedic examiner as "rock hard paraspinous muscle
spasm".  In this regard, the veteran testified that he
experienced muscle spasms on a daily basis and was sometimes
restricted to bed for two to three days due to the severity
of these spasms.

Although the VA neurological examiner in 1998 noted that an
EMG study in 1994 was negative for right radiculopathy, the
veteran was later diagnosed by a VA examiner in December 1996
VA as having right L-5 radiculopathy.  This diagnosis
supports the criterion of sciatic neuropathy.  Characteristic
pain, another element of pronounced intervertebral disc
syndrome under Diagnostic Code 5293, is found on the December
1996 examination report which notes that straight leg raising
produced pain at 80 degrees.  Also, the medical records are
replete with diagnosis of chronic low back pain and right leg
pain.  In fact, the veteran underwent a pain management
evaluation in June 1994, has complained of increasing low
back and leg pain in recent years, and had to cancel a
medical appointment in January 1999 due to severe back pain.
He was diagnosed as having chronic low back pain and lumbar
disc disease at the August 1998 VA neurological examination.

Another factor to consider when evaluating the veteran's
disability under Code 5293 is limitation of motion.  See
VAOPGPREC 36-97.  Findings from the August 1998 orthopedic
examination revealed loss of flexion to 50 degrees, loss of
extension to 0 degrees and loss of lateral bending on the
left to 5 degrees and on the right to 10 degrees.  There was
also a loss of lateral rotation to 5 degrees on either side.
Furthermore, the examiner from the December 1996 orthopedic
examination stated that the veteran's range of motion was
"significantly limited".

Additional evidence of the pronounced nature of the veteran's
intervertebral disc syndrome is found in the veteran's
statement and testimony as to having experienced a worsening
of his neurological symptomatology over the years.  Moreover,
the VA orthopedic examiner in 1998 stated that further
decompressive surgery would be needed in order to alleviate
the veteran's back symptomatology, and stated that this
represented a significant deterioration of the veteran's
clinical condition as compared with his previous examination
in 1996.

The weight of evidence in this case overwhelmingly supports
the assignment of an increased rating, to 60 percent, for the
veteran's service-connected residuals of recurrent disc
surgery and lumbar fusion L4-S1.  38 C.F.R. � 4.71a,
Diagnostic Code 5293.

Since 60 percent is the maximum allowable rating under Code
5293, consideration cannot be given to a higher than 60
percent rating under this code.  Johnston v. Brown, 10 Vet.
App. 80, 85 (1997).  And because Code 5293 involves
limitation of motion, a separate rating under the limitation
of motion codes (Code 5292) is not appropriate because to do
so would constitute evaluation of an identical manifestation
of the same disability under two different diagnoses.
38 C.F.R. � 4.14; VAOPGPREC 36-97.

The only code involving disabilities of the spine that allows
for a higher than 60 percent rating is Code 5286 for
ankylosis of the spine at an unfavorable angle.  As the
evidence in this case does not show that the veteran has
ankylosis of the spine, this code is not applicable to the
veteran's claim.

For the reasons given above, an increased rating, to 60
percent, for residuals of recurrent disc surgery and lumbar
fusion L4-S1 is warranted.  38 C.F.R. � 4.71a, Diagnostic
Code 5293.

Meralgia Paresthetica

The veteran's meralgia paresthetica is rated under 38 C.F.R.
� 4.124a, Diagnostic Code 8529 for paralysis of the external
cutaneous nerve of the thigh.  Under this Code, a
noncompensable rating is warranted for mild or moderate
paralysis and a 10 percent rating is warranted for severe to
complete paralysis.

Findings from the August 1998 neurological examination
revealed that the veteran had sensory loss relating to
neuropathy of the lateral femoral cutaneous nerve.
Specially, there was absent pinprick on the left anterior and
lower lateral thigh consistent with injury to the lateral
cutaneous nerve of the thigh.  Although the veteran is
diagnosed as having meralgia paresthetica on the left, the
examiner said that the veteran did not actually have this
diagnosis since he does not experience pain from the damaged
cutaneous nerve, but that he does have sensory abnormality
residual.  Similarly, a VA physician stated in October 1995
that the veteran's left lateral cutaneous femoral nerve
problem was sensory, not motor, and superficial.  In further
regard to this disability, a VA orthopedic examiner in 1996
stated that the veteran would likely always have numbness
along the anterolateral aspect of his thigh on the basis of
an injury to his nerve.  He said that the injury was
longstanding and not reversible despite two attempts at
decompression.

The veteran testified in July 1999 that he experienced a
"pins and needles" sensation in his left thigh, but that he
had no feeling in it.  He said that he could walk on it, but
that he still had problems with it.

The evidence shows that the veteran's cutaneous nerve injury
produces decreased sensation and numbness in the left thigh,
but does not impede motor function.  In this regard, motor
findings at the August 1998 VA examination revealed normal
power, tone and bulk throughout the lower extremities
bilaterally.  Strength was "5/5" in the "lower extremity".
In addition, the veteran testified at the July 1999 hearing
that his left leg disability was bothersome, but he could
walk and raise this leg.

While there is no doubt that the residual sensory abnormality
that the veteran experiences in his left thigh hampers to
some degree the normal function of his left leg, such an
abnormality is most consistent with a mild to moderate
paralysis of the thigh, and not a severe or complete
paralysis.  This is so when applying the regulatory
provisions for diseases of the peripheral nerves which
provide that "when nerve involvement is wholly sensory, the
rating should be for the mild, or at most, the moderate
degree."  38 C.F.R. � 4.124a.

In view of the wholly sensory nature of the veteran's
meralgia paresthetica, the weight of evidence goes against
the assignment of a compensable rating.  38 C.F.R. � 4.124a,
Diagnostic Code 8529.  Since the weight of evidence if
against the claim and is not in relative equipoise, the
benefit-of-the-doubt rule is not for application.
38 U.S.C.A. � 5107(b).

ORDER

An increased rating, to 60 percent, for residuals of
recurrent disc surgery and lumbar fusion L4-S1 is granted,
subject to the laws and regulations governing the payment of
monetary benefits.

A compensable rating for meralgia parestheticaon the left is
denied.

	G. H. SHUFELT
	Member, Board of Veterans' Appeals


series: legacy

judge_norm: ROBERT P REGAN

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
Citation Nr: 9933000
Decision Date: 11/23/99    Archive Date: 12/01/99

DOCKET NO.  99-07 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
hearing loss involving the left ear.

2.  Entitlement to an increased evaluation for hearing loss
involving the right ear with otitis media currently evaluated
as 10 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. L. Bunch, Associate Counsel

INTRODUCTION

The veteran had active military duty from July 1943 to
January 1946.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a December 1998 rating decision by the
New Orleans, Louisiana, regional office (RO) of the
Department of Veterans' Affairs (VA).

The veteran during a videoconference before a member of the
Board appears to have raised the issue of service connection
for tinnitus.  This issue has not been developed for
appellate consideration and is referred to the RO for
appropriate action.

The issue of an increased rating for hearing of the right ear
will be discussed in the Remand portion of this decision.

FINDINGS OF FACT

1. All evidence necessary for an equitable disposition of the
veteran's claim has been developed.

2.  In October 1972, the Board denied service connection for
hearing loss in the left ear.

3.  The evidence received since the October 1972 Board
decision bears directly and substantially on the specific
matter of the veteran's claim of entitlement to service
connection for left ear hearing loss.

CONCLUSIONS OF LAW

1.  The October 1972 Board decision, which denied entitlement
to service connection for hearing loss left ear, and which
denied entitlement to an increased rating for hearing loss
right ear with otitis media, is final.  38 U.S.C.A. � 7104
(West 1991) (formerly 38 U.S.C. � 4004).

2.  The evidence received subsequent to the October 1972,
Board decision is new and material, and serves to reopen the
claim for entitlement to service connection for hearing loss
left ear.  38 U.S.C.A. � 5108 (West 1991); 38 C.F.R. � 3.156
(1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for a disease or injury
incurred in or aggravated by active duty. 38 U.S.C.A. ��
1110, 1131 (West 1991).  Certain chronic diseases, including
sensorineural hearing loss, may be service connected if
manifested to a degree of 10 percent disabling or more within
one year after separation from service.  38 U.S.C.A. �� 1101,
1112, 1113, 1137 (West 1991); 38 C.F.R. �� 3.307, 3.309
(1999).

In addition, 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)
(1999).

Impaired hearing is considered to be a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent.  38 C.F.R. � 3.385 (1999).

The evidence of record at the time of the October 1972 Board
decision, which denied entitlement to service connection for
hearing loss left ear, may be briefly summarized.  The
available service medical records consist primarily of the
induction and separation examinations.  These reports contain
no complaint, finding, or history pertaining to a disorder
involving the left ear.  At the time of the separation
examination hearing for the whispered and spoken voices was
15/15, bilaterally.  The service administrative records show
that the veteran was a canoneer and served in Normandy,
Northern France, the Rhineland, and Central Europe.

A March 1949 VA audiogram shows bilateral hearing loss.  A
February 1953 VA audiogram shows right ear hearing loss with
chronic otitis media with large central perforation probably
due to acoustic trauma.

In October 1972 the Board denied service connection for left
ear hearing loss.  At that time the Board determined, in
effect, that left ear hearing loss was not shown to have been
present during service or manifested within one year after
service. The October 1972 Board decision is final.  38
U.S.C.A. � 7104 (West 1991) (formerly 38 U.S.C. � 4004).
However, the veteran may reopen his claim by submitting new
and material evidence.

New and material evidence means evidence not previously
submitted to agency decision-makers 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.  See Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998); 38 C.F.R. � 3.156(a) (1999).

"New evidence" is evidence that is not merely cumulative of
other evidence on the record.  Barnett v. Brown, 8
Vet.App. 1, 5 (1995).  See also Cox v. Brown, 5 Vet.App. 95,
98 (1993).  Evidence is "material" where it is relevant to
and probative of the issue at hand. Id.

The evidence received subsequent to the last final decision
is presumed credible for the purposes of reopening the
appellant's claim unless it is inherently false or untrue, or
it is beyond the competence of the person making the
assertion.  Duran v. Brown, 7 Vet. App. 216, 220 (1995);
Justus v. Principi, 3 Vet. App. 510, 513 (1992).  See also
Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).

Evidence that has been received subsequent to the October
1972 Board decision includes VA treatment records from 1983
1987, which show treatment for right and left ear hearing
loss.  A November 1998 VA audiological evaluation revealed a
diagnosis of moderately severe sensorineural hearing loss,
left ear.

The veteran testified during a September 1999 videoconference
hearing that his hearing loss was due to his service duty as
a gunner on a 105 Howitzer.  The veteran provided detailed
testimony describing his duties as a gunner, and the length
of time to which he was exposed to the acoustic trauma.  He
stated that after a month in combat, the gunner was killed
and they put him in charge of firing.  He stated that he was
right next to the Howitzer.  The veteran states that a Dr.
Bratz wrote a letter to a VA physician detailing that the
veteran's left ear hearing loss was due to his exposure to
the 105 Howitzer guns.

To summarize, the veteran is competent to describe an
inservice incident and symptoms of a disability.
Additionally, the Board finds his hearing testimony regarding
exposure to acoustic trauma during service is supported by
the evidence, and, thus, is credible.  See Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992).

During his hearing the veteran provided new an detailed
information regarding the noise to which he was exposed
during service.  He indicated that he was located right next
to the Howitzer.  The Board finds that this testimony bears
directly on the severity and persistent of the inservice
acoustic trauma.  Thus, the Board finds that this evidence is
new and material.  Accordingly, the claim is reopened.

ORDER

New and material evidence having been submitted, the claim of
service connection for hearing loss left ear is reopened.

REMAND

In Elkins v. West, 12 Vet. App. 209 (1999) the United States
Court of Appeals for Veterans Claims (Court) held that that
in making a determination as to whether new and material
evidence has been submitted to reopened a previously denied
final decision, a three step process is required.  It must
first be determined whether new and material evidence has
been submitted.  If new and material evidence has been
submitted, it must be determined whether, immediately upon
reopening, the claim is well grounded pursuant to 38 U.S.C.A.
� 5107(a) (West 1991).  If the claim is well grounded, the
merits of the claim will be evaluated after the duty to
assist under 38 U.S.C.A. � 5107(b) (West 1991) has been
fulfilled.

In order to have a well grounded claim there must be
competent evidence of a current disability (a medical
diagnosis); incurrence or aggravation of a disease or injury
in service (lay or medical evidence); and a nexus between the
inservice injury or disease and the current disability
(medical evidence).  Caluza v. Brown, 7 Vet.App. 498 (1995).

If a claim is not well grounded, VA does not have a duty to
assist the veteran in the development of facts pertinent to
the claim.  However, the VA may obtain records in
constructive possession such as VA treatment records.  In
this regard, the veteran during his hearing indicated that he
received treatment for his hearing loss at VA facilities.  It
is unclear whether all the pertinent treatment records are on
file.

The Board points out that in veiw of the of the relationship
between the issues in appellate status, a decision concerning
an increased rating for right ear hearing loss will not be
entered until the development requested below has been
completed.

Accordingly, the case is REMANDED to the RO for the following
actions:

1.  The RO should inform the veteran of
the type of the evidence needed to
establish a well-grounded claim for
service connection for hearing loss in
the left ear.  Such evidence would
include a medical statement, which
relates the hearing loss in the left ear
to the inservice noise exposure.  The
veteran should be requested to identify
the dates and locations he received
treatment at VA facilities for his
hearing loss.  The RO should then obtain
all record that are not on file.

2.  Following any additional development
deemed appropriate, the RO should
readjudicate the issues in appellate
status, to include consideration of
Elkins v. West, 12 Vet. App. 209 (1999).

3.  If the benefits sought are not
granted, the veteran and his
representative should be furnished with a
Supplemental Statement of the Case, and
opportunity to respond.  Thereafter, the
case should be returned to the Board for
further appellate consideration.

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

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court 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. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the regional offices 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.

	ROBERT P. REGAN

	Member, Board of Veterans' Appeals


judge_norm: HOLLY E MOEHLMANN

disposition: denied

text:
Citation Nr: 9934000
Decision Date: 12/06/99    Archive Date: 12/10/99

DOCKET NO.  98-16 070	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada

THE ISSUE

Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for
post-traumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

G. A. Wasik, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1970 to February
1973.

This matter is before the Board of Veterans' Appeals (Board)
on appeal of a May 1998 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO).  In May 1998, the
RO denied service connection for PTSD and also denied
entitlement to a nonservice-connected pension.  The veteran
perfected appeals of both denials.  In January 1999, the RO
granted entitlement to a nonservice-connected pension.

The Board notes the RO denied service connection for PTSD in
September 1989.  The veteran was informed of the decision in
October 1989.  He did not appeal the denial of service
connection which became final in October 1990.  In accordance
with the United States Court of Appeals for Veterans Claims
(hereinafter, "the Court") ruling in Barnett v. Brown, 8
Vet. App. 1 (1995), the Board is obligated to address the
issue of new and material evidence regardless of whether the
RO based its determination on that issue.  Hence, the Board
will proceed with a determination of whether new and material
evidence has been submitted to reopen the claim of
entitlement to service connection for PTSD which was denied
in September 1989.

FINDINGS OF FACT

1.  The RO denied entitlement to service connection for PTSD
when it issued an unappealed rating decision in September
1989.

2.  Evidence received since the September 1989 determination
wherein the RO denied the claim of entitlement to service
connection for PTSD bears directly and substantially upon the
issue, and by itself or in connection with the evidence
previously of record, is so significant that it must be
considered in order to fully decide the merits of the claim.

3.  The claim of entitlement to service connection for PTSD
is supported by cognizable evidence showing that the claim is
plausible or capable of substantiation.

4.  The record does not establish that the veteran engaged in
combat in service.

5.  There is no competent evidence of stressor corroboration
to support a diagnosis of PTSD resulting from military
service.

6.  The medical evidence does not establish a clear supported
diagnosis of PTSD.

CONCLUSIONS OF LAW

1.  Evidence received since the September 1989 determination
wherein the RO denied the claim of entitlement to service
connection for PTSD is new and material, and the veteran's
claim for that benefit has been reopened.  38 U.S.C.A.
�� 5108, 7105(c) (West 1991);  38 C.F.R. �� 3.104(a),
3.156(a), 20.1103 (1999).

2.  The claim of entitlement to service connection for PTSD
is well-grounded.  38 U.S.C.A. � 5107 (West 1991).

3.  PTSD was not incurred in or aggravated by active military
service.  38 U.S.C.A. �� 1110, 1131, 1154(a), 5107(b) (West
1991);  38 C.F.R. �� 3.303, 3.304(f) (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

The evidence which was of record at the time of the September
1989 rating decision is set out below.

The service medical records show that in May 1972 an
impression of acute situational anxiety was made.  It was
noted that the veteran's current crisis was thought to be an
acute situation and not indicative of any overall character
or behavioral disorder of any longstanding duration.  The
veteran underwent psychiatric evaluation in October 1972 and
was diagnosed with adjustment reaction to adult life and
passive aggressive personality disorder.  It was noted that
much of the veteran's symptomatology was attributed to
concerns for the welfare of his mother and family.  Passive-
aggressive personality was noted on the report of the
separation examination conducted in January 1973.  A notation
on the report of the separation examination indicated that he
was referred for evaluation for administrative separation
purposes because of passive-aggressive personality, and the
examiner failed to find any mental or physical defects
sufficient to warrant evaluation under the provisions of AFM
35-4.  The veteran was found to be qualified for general
military service.  On the Report of Medical History portion
of the exit examination the veteran denied experiencing
frequent trouble sleeping, depression or excessive worry or
nervous trouble of any sort.  There is no indication that the
veteran was injured in any way as a result of enemy action.

Service personnel records show that the veteran served with
the United States Air Force.  He served overseas in Thailand
beginning in May 1971.  His military specialty was outside
wire and antenna maintenance repairman.  He was in receipt of
the Vietnam Service Medal and the Vietnam Campaign Medal.  He
did not receive any awards or decorations indicative of
participation in combat.  He did not receive any special
training in combat related activities.  The veteran was
separated from service as a result of unsuitability due to
character and behavior disorders.

A referral letter dated in August 1989 from a Vet Center
shows that the veteran was being referred to a VA facility
for evaluation and possible treatment.  It was reported that
the veteran had a history of chronic psychiatric difficulties
and alcohol abuse.

A July 1989 lay statement from the veteran's pastor is of
record.  The author reported that he had counseled the
veteran for 12 years.  The author reported symptomatology he
had observed in the veteran.  The pastor noted that the
veteran contended that his mental difficulties were the
result of serving in Vietnam.

The RO denied service connection for PTSD in September 1989
as the disorder was not shown by the evidence of record.  The
RO found no evidence showing the veteran served in combat or
otherwise suffered a combat related condition during active
military service.  It was further found that the veteran had
a constitutional or developmental abnormality that was not
aggravated by active duty.

The evidence added to the record subsequent to the September
1989 rating decision wherein the RO denied service connection
for PTSD is set out below.

Records from the Social Security Administration have been
associated with the claims file.  Included in these records
is a statement from the veteran's sister wherein it was
reported that the veteran had had PTSD since at least 1979.
Letters from the State of Nevada Division of Mental Health
and Mental Retardation dated in July 1997 include the
notations that the veteran had been receiving treatment since
April 1997 for post-traumatic stress complex.  A January 1998
Report of Illness or Physical Disability included the
notation that the veteran had severe PTSD due to combat in
Vietnam.  It was determined that the veteran was entitled to
a period of disability commencing on March 14, 1997 as a
result of bipolar disorder, PTSD and a mixed personality
disorder.

A report of private psychological evaluation conducted in
July 1997 is of record.  The veteran reported that he was
troubled by "day visions" and nightmares from Southeast
Asia.  He reported that he saw quite a bit of combat during a
one year period in Vietnam in 1972-1973.  He complained of a
nightmare of shooting and killing a four year old girl in
Asia.  The diagnosis was PTSD.

The report of a September 1997 VA mental disorders
examination is of record.  The veteran informed the examiner
that he was assigned to overseas service in Thailand but was
sent on two temporary duty assignments in Vietnam.  The first
time he was sent to Vietnam was sometime around 1971.  He
reported he was in Vietnam for 90 days during each period of
temporary duty.  While in Vietnam, the veteran's duties
consisted primarily of building towers which the enemy would
then blow down.  He was assigned to "GEEIA 483 Battalion."
He reported that while in Vietnam, he went on patrols to help
locate enemy positions and was subjected to enemy fire.  He
described an incident where he was ordered to shoot an eight
year old Vietnamese girl by his second lieutenant.  He
reported the lieutenant was going to shoot the veteran if he
did not shoot the girl.  The veteran further informed the
examiner that he was not subjected to any other life-
threatening stressors other than being exposed to fire fights
in the Monkey Mountains at his communications center in Da
Nang.  He reportedly experienced nightmares involving the
shooting of the young girl and then shooting the lieutenant.

The examiner found it hard to come up with a definitive
diagnosis of PTSD.  Complicating the veteran's history was
his acknowledgment of his alcohol abuse.  The examiner noted
that the veteran's only claim to a stressor was when a second
lieutenant put a gun to his head informing him that if he did
not shoot the girl, he would be shot himself.  The diagnosis
was alcohol abuse, possible PTSD and personality disorder not
otherwise specified.  The examiner noted that verification
should be obtained for the veteran's claimed stressor.

A Report of Contact date in July 1998 has been associated
with the claims file.  It was noted that the veteran had
contacted the RO to complain about the service he had been
receiving.  When questioned about his claimed in-service
stressor, the veteran reported that the only thing he could
remember was shooting an eight year old girl on orders from
second lieutenant.  He informed the author that he
subsequently shot the lieutenant.  When the author requested
the name of the lieutenant who was shot, the veteran replied
that he could not remember the man's name.  The veteran was
also not sure that he actually shot the lieutenant but
instead just fired a shot in his direction before some non-
commissioned officers stopped the veteran.  He further
reported that he could not remember any dates or names other
than the area "Monkey Mountain."

The transcript of an August 1998 RO hearing has been
associated with the claims file.  The veteran testified that
during active duty he went on temporary duty assignments to
Vietnam on two different occasions in the summer of 1971.  He
was in Vietnam a total of approximately 75 days total.  His
duties while in Vietnam consisted of rebuilding and repairing
towers at Monkey Mountain.  He testified that he would build
towers everyday and the Viet Cong would blow them up every
night.  He reported the communications site was under fire
continuously.  He indicated that while at Monkey Mountain,
the commander of his squadron utilized the troops there for
combat patrols around Monkey Mountain.  The veteran testified
that he participated in these patrols several times.  He
reported that he had nightmares of shooting a little girl in
a village.  He did not have any other recollections of the
incident other than the nightmares.  He did not know if the
incident involving the shooting death of the girl was
investigated.  He did not know the name of the lieutenant
involved in the shooting death of the girl.  The lieutenant
held a pistol to the veteran's head when ordering the veteran
to shoot the girl.  He reported that after he shot the girl
he pointed his gun at the lieutenant.  Somebody grabbed the
gun at that point.  He testified that he was treated by a
psychiatrist during active duty for the nightmares and for a
drinking problem.  Prior to active duty, he had worked as a
male nurse.  He testified that the first time he was
diagnosed with PTSD was in 1974 at VA hospital in Hampton,
Virginia.  He had been hospitalized for 24 hour evaluation.
He further testified that the records of that hospitalization
had been lost.  He was assigned to the Ground Electronics
Equipment Installation Agency (GEEIA) while in Thailand.  He
reported he was diagnosed with PTSD in 1989 by a Doctor B.
who was located in Roanoke, Virginia.  He was treated at the
VA hospital from 1989 to 1992 at the VA hospital in Hampton.

VA inpatient and outpatient treatment records dated from 1980
to 1998 have been associated with the claims file.  The
records evidence diagnosis of and treatment for PTSD.  The
disorder was first diagnosed in August 1987.  It was noted at
that time that the veteran had had visions of dead buddies
from Vietnam.  A provisional diagnosis of PTSD was made in
July 1989.  In August 1989 it was noted the veteran had a
recurring nightmare of shooting a little girl in Vietnam.  It
was further noted that the veteran did not remember much of
his military career and did not remember shooting the little
girl.  The assessment at that time was rule out PTSD.  In
November 1989, it was indicated that the veteran had had some
survivors guilt over the deaths of 28 friends who died in
Vietnam.  The assessment at that time was PTSD.  In January
1998, it was reported that the veteran had frequent Vietnam
combat nightmares.  It was further noted that the veteran
apparently killed an unarmed female child in Vietnam.  The
veteran reported auditory hallucinations of the child he
killed and also of friends who died in Vietnam.  The Axis I
diagnosis was PTSD, alcohol dependence and rule out bipolar
disorder.

Criteria

Service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated by
service.  38 U.S.C.A. � 1110 (West 1991).

Under the provisions for direct service connection for PTSD,
60 Fed. Reg. 32807-32808 (1999) (codified at 38 C.F.R.
� 3.304(f)), service connection for PTSD requires medical
evidence diagnosing the condition in accordance with
38 C.F.R. � 4.125 (diagnosis of mental disorder); a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred.

If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
this combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor.  See Moreau v. Brown, 9 Vet. App. 389, 394 (1996).

The VA regulation was changed in June 1999 to conform to the
Court's determination in Cohen v. Brown, 10 Vet. App. 128
(1997).  As the Cohen determination was in effect when the RO
last reviewed this case, the Board finds no prejudice to the
veteran in proceeding with this case at this time.  See
Bernard v. Brown,  4 Vet. App. 384 (1993).

The award of service connection for PTSD, therefore, requires
the presence of three elements:  (1) medical evidence
diagnosing the condition; (2) credible supporting evidence
that the claimed in-service stressor actually occurred; and,
(3) medical evidence of a causal nexus between current
symptomatology and the specified claimed in-service stressor.

Adjudication of a well-grounded claim of service connection
for PTSD requires the evaluation of the evidence in light of
the places, types, and circumstances of service, as evidenced
by service records, the official history of each organization
in which the veteran served, the veteran's military records,
and all pertinent medical and lay evidence.  38 U.S.C.A.
� 1154(a).

The Court has held that, "[i]t is the duty of the BVA as the
fact finder to determine credibility of the testimony and
other lay evidence."  Culver v. Derwinski, 3 Vet. App. 292,
297 (1992).

The Court in Zarycki v. Brown, 6 Vet. App. 91 (1993), set
forth the foundation for the framework now established by the
case law for establishing the presence of a recognizable
stressor, which is the essential prerequisite to support the
diagnosis of PTSD.  The Court noted that the evidence
necessary to establish the existence of the recognizable
stressor during service will vary depending on whether or not
the veteran was "engaged in combat with the enemy" under
38 U.S.C.A. � 1154(b) (West 1991) and 38 C.F.R. � 3.304
(1996), as determined through recognized military citations
or other service department evidence.

In other words, a veteran's bare assertions that he "engaged
in combat with the enemy" are not sufficient, by themselves,
to establish this fact.  If the determination of combat
status is affirmative, then (and only then), a second step
requires that the veteran's lay testimony regarding claimed
stressors must be accepted as conclusive as to their actual
occurrence and no further development or corroborative
evidence will be required, provided that the veteran's
testimony is found to be "satisfactory," e.g., credible, and
"consistent with the circumstances, conditions, or hardships
of such service."  Zarycki at 98 (emphasis added).

The Court, in Moreau v. Brown, 9 Vet. App. 389 (1996), citing
the MANUAL M21-1 Part VA,  7.46.c (Oct. 11, 1995) held that
"credible supporting evidence" of a non-combat stressor
"may be obtained from" service records or "other sources."
The Court further held that while the MANUAL M21-1 provisions
did not expressly state whether the veteran's testimony
standing alone could constitute credible evidence of the
actual occurrence of a non-combat stressor, the Court's
holding in Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996),
established, as a matter of law, that "if the claimed
stressor is not combat-related, [the] appellant's lay
testimony regarding the in-service stressors is insufficient
to establish the occurrence of the stressor."  Further, the
Court held in Moreau, the fact that a medical opinion was
provided relating PTSD to events the veteran described in
service could not constitute "credible supporting evidence"
of the existence of the claimed non-combat stressor.  Id.

In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court noted
that VA had adopted a final rule in October 1996, effective
November 7, 1996, revising 38 C.F.R. �� 4.125 and 4.126
(1996).  The effect of these revisions was to change the
diagnostic criteria for mental disorders from the Diagnostic
and Statistical Manual for Mental Disorders (DSM), third
edition and the third edition, revised, to the fourth edition
(DSM-IV).  The Court found that DSM-IV altered the criteria
for assessing the adequacy of the stressor from an objective
to a subjective basis.

The Court further found that where there was "undisputed,
unequivocal" diagnoses of PTSD of record, and the Board did
not make a finding that the reports were incomplete, the
adequacy of the stressor had to be presumed as a matter of
law.  (The concurring opinion goes further and states that
the case also holds that where there is an "unequivocal"
diagnosis of PTSD, the adequacy of the symptoms to support
the diagnosis, as well as the sufficiency of the stressor,
are presumed.  Id. at 153).  In West v. Brown, 7 Vet. App. 70
(1994), the Court held that the sufficiency of the stressor
is a medical determination, and therefore adjudicators may
not render a determination on this point in the absence of
independent medical evidence.

In determining whether a claim is well grounded, the
claimant's evidentiary assertions are presumed true unless
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion.  King v.
Brown, 5 Vet. App. 19, 21 (1993).

If no notice of disagreement is filed within the prescribed
period, the action or determination shall become final and
the claim will not thereafter be reopened or allowed, except
as otherwise provided by regulation.  38 U.S.C.A. � 7105(c)
(West 1991); 38 C.F.R. � 20.1103 (1999).

The Board does not have jurisdiction to consider a previously
adjudicated claim unless new and material evidence is
presented.  Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir.
1996).  When new and material evidence has not been submitted
in a previously denied claim "[f]urther analysis...is
neither required, nor permitted."  Butler v. Brown, 9 Vet.
App. 167, 171 (1996) (finding in a case where new and
material evidence had not been submitted that the Board's
analysis of whether the claims were well grounded constituted
a legal nullity).  Thus, the well groundedness requirement
does not apply with regard to reopening disallowed claims and
revising prior final determinations.  Jones v. Brown, 7 Vet.
App. 134 (1994).

The regulations define new and material evidence as follows:

New and material evidence means evidence
not previously submitted to agency
decision makers 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) (1999).

In Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the
Court held that with respect to evidence that would justify
reopening a claim on the basis of new and material evidence,
"there must be a reasonable possibility that the new
evidence, when viewed in the context of all the evidence,
both new and old, would change the outcome."  Colvin, 1 Vet.
App. at 174.  However, the U.S. Court of Appeals for the
Federal Circuit recently ruled that the Court erred in
adopting that test.  Hodge v. West, 155 F.3d 1356 (1998).
Therefore, the Board will analyze the evidence submitted in
the case at hand according to the standard articulated in
38 C.F.R. � 3.156(a).

The Court has clarified that, with respect to the issue of
materiality, the newly presented evidence need not be
probative of all the elements required to award the claim as
in this case dealing with claims for service connection.
Evans v. Brown, 9 Vet. App. 273, 284, (1996) (citing Caluza
v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604
(Fed. Cir. 1996) (table)).  Rather, it is the specified bases
for the final disallowance that must be considered in
determining whether the newly submitted evidence is
probative.

For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence
is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513
(1992).

With regard to petitions to reopen previously and finally
denied claims, the Board must conduct a three-step analysis.
Elkins v. West, 12 Vet. App. 209, 218-19 (1999);  Winters v.
West, 12 Vet. App. 203, 206 (1999).  First, the Board must
determine whether the evidence presented or secured since the
prior final denial of the claim is "new and material."
Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991).

If new and material evidence is presented or secured with
respect to a claim that has been finally denied, the claim
will be reopened, and the Board will determine, based on all
the evidence of record in support of the claim, and presuming
the credibility thereof, whether the claim is well-grounded
pursuant to 38 U.S.C.A. � 5107(a).

If the claim is well-grounded, the case will be decided on
the merits, but only after the Board has determined that VA's
duty to assist under 38 U.S.C.A. � 5107 has been fulfilled.
The Court noted in Elkins and Winters that by the ruling in
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Federal
Circuit Court "effectively decoupled" the determinations of
new and material evidence and well-groundedness.

Thus, if the Board determines that additionally submitted
evidence is "new and material," it must reopen the claim
and perform the second and third steps in the three-step
analysis, evaluating the claim for well-groundedness in view
of all the evidence, both new and old, and, if appropriate,
evaluating the claim on the merits.  See Elkins, 12 Vet.
App. 209, 218-19 (1999) and Winters v. West, 12 Vet.
App. 203, 206 (1999).

When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied.  Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative 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(b) (West 1991);  38 C.F.R. �� 3.102, 4.3
(1999).

Analysis

Whether new and material evidence has
been submitted to reopen the claim of
service connection for PTSD.

The veteran seeks to reopen his claim for service connection
for PTSD which the RO denied in September 1989.

When a claim is finally denied by the RO, the claim may not
thereafter be reopened and allowed, unless new and material
evidence has been presented.  38 U.S.C.A. � 7105; 38 C.F.R.
� 3.104.

When a claimant seeks to reopen a finally denied claim, the
Board must review all of the evidence submitted since that
action to determine whether the claim should be reopened and
readjudicated on a de novo basis.  Glynn v. Brown, 6 Vet.
App. 523, 529 (1994).  In order to reopen a finally denied
claim there must be new and material evidence presented since
the claim was last finally disallowed on any basis, not only
since the claim was last denied on the merits.  Evans v.
Brown, 9 Vet. App. 273 (1996).  Under Evans, evidence is new
if not previously of record and is not merely cumulative of
evidence previously of record.

Review of the RO's findings in the September 1989 decision
discloses that PTSD was denied because the disorder was not
shown by the evidence of record and the veteran had not
submitted evidence to confirm his in-service stressors.

The Board finds that new and material evidence has been
submitted to reopen the claim of entitlement to service
connection for PTSD.  Evidence received subsequent to the
September 1989 rating decision which denied the claim
includes clinical records and statements from the veteran
regarding his in-service stressors.  PTSD diagnoses have been
made based on these in-service stressors reported by the
veteran.

As stated above, for the purpose of establishing whether new
and material evidence has been submitted, the credibility of
the evidence is to be presumed.  Justus v. Principi, 3 Vet.
App. 510, 513 (1992).  Thus the veteran's allegations of new
in-service stressors he was exposed to are presumed to be
credible for determining whether new and material evidence
has been submitted.

On the basis of the above, the Board finds new and material
evidence has been submitted to reopen the claim of
entitlement to service connection for PTSD as there are now
of record diagnoses of PTSD which have been linked to active
duty with the credibility of the reported in-service
stressors presumed.  The evidence submitted bears directly
and substantially upon the issue of entitlement to service
connection for PTSD, and by itself or in connection with the
evidence previously of record, is so significant that it must
be considered in order to fairly decide the merits of this
claim.

Whether the claim of entitlement to
service connection for PTSD is well-
grounded.

The Board finds the reopened claim of entitlement to service
connection for PTSD is "well-grounded" within the meaning of
38 U.S.C.A. � 5107.  That is, the Board finds that the
veteran has presented a claim which is plausible.

Included in the claims files are clinical diagnoses of PTSD
by competent medical professionals who have diagnosed the
disorder based on in-service stressors reported by the
veteran.

In determining whether a claim is well grounded, the
claimant's evidentiary assertions are presumed true unless
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion.  King v.
Brown, 5 Vet. App. 19, 21 (1993).

The Board finds the veteran's allegations of in-service
stressors are not inherently incredible and are within the
competence of the veteran to make.  Solely for the purpose of
determining whether the claim of entitlement to PTSD is well
grounded, the Board is presuming the credibility of the
claimed in-service stressors.

PTSD has been linked to the veteran's active duty experiences
by the competent evidence of record.  As there is competent
evidence of record of diagnoses of PTSD which have been
linked to the veteran's (presumed credible) experiences while
on active duty in Vietnam, the Board finds the claim is well
grounded.

Entitlement to service connection for
PTSD on a de novo basis.

Initially the Board notes the veteran has not identified any
additional, relevant evidence that has not been requested or
obtained.  The Board thus finds that all relevant evidence
necessary for an equitable disposition of the appeal has been
obtained to the extent possible, and no further assistance is
required to comply with the duty to assist mandated by
38 U.S.C.A. � 5107.

The Board finds the reopened claim of entitlement to service
connection for PTSD must be denied as there are no verified
in-service stressors of record to support such diagnosis.

The claims file contains diagnoses of PTSD as evidenced by
various private and VA clinical records offered by medical
professionals.  The health care professionals arrived at the
diagnoses based on stressors the veteran related from his
alleged temporary duty in Vietnam.  Thus, the Board finds the
record establishes the first and third elements required for
a grant of service connection for PTSD.  38 C.F.R.
� 3.304(f).

Therefore, the claim for service connection for PTSD in this
appeal must be decided based upon the question of whether the
in-service stressors reported by the veteran and relied upon
by the competent medical professionals diagnosing PTSD
occurred, as substantiated by competent corroborating
evidence.  That question involves both consideration of the
facts as presented and the credibility of the evidence
contained in the instant record.

The Board, insofar as it finds below that there is no
recognizable stressor, does not reach questions of whether
the events claimed by the veteran were sufficient to
constitute a stressor for purposes of causing PTSD, or
whether the remaining elements required to support the
diagnosis of PTSD have been met, both matters that require
competent medical opinions and expertise.

In the instant case, the Board concludes that the veteran did
not engage in combat with the enemy and is thus not entitled
to the presumptions under 38 U.S.C.A. � 1154(b); 38 C.F.R.
� 3.304(f).  His military specialty was outside wire and
antenna maintenance repairman.  He was not awarded any combat
decorations.  There is no verified evidence that the veteran
actually participated in combat.

The stressors which the veteran reported consisted of the
following: being forced to shoot and kill a girl described as
being four or eight by an unknown lieutenant; conducting
patrols at Monkey Mountain and being fired on during the
patrols; being exposed to enemy fire at Monkey Mountain;
visions of dead buddies from Vietnam and guilt over the
deaths of 28 friends who died in Vietnam.  The veteran
reported that he was temporarily assigned to duty in Vietnam
on two different occasions in either 1971 or 1972-1973 for a
total time in Vietnam of either 75 days or 180 days.  The
only area he could remember being assigned to in Vietnam was
Monkey Mountain.  The veteran did not supply any additional
information regarding the full names, times, dates or
locations of any of his claimed stressors.

The Board finds the veteran did not provide sufficient
descriptive information to research any of his claimed
stressors.  The veteran was unable to provide dates for any
of his claimed stressors other than occurring in either the
summer of 1971 or in 1972-1973 at Monkey Mountain.  The Board
notes that the veteran was requested in September 1989 and
February 1998 to provide descriptive information by which the
claimed in-service stressors could be verified.  The veteran
did not respond to the requests to provide additional
evidence regarding stressors.

The Court has held that asking a veteran to provide the
underlying facts, i.e., the names of individuals involved,
the dates, and the places where the claimed events occurred,
does not constitute an impossible or onerous task.  Wood v.
Derwinski, 1 Vet. App. 190 (1991).

The Board further notes the main stressor reported by the
veteran was shooting a Vietnamese child.  The veteran
reported that he was not sure if the incident had been
reported to the authorities.  If the incident was not
reported to the authorities, it is unlikely there would be
any independent military records which could serve as
verification.  At other times, he informed medical
professionals that he did not have actual memories of
shooting the child but mainly remembered the event through
nightmares.

The Board finds that the veteran's claim of entitlement to
service connection for PTSD must be denied as none of the
veteran's claimed stressors have been corroborated by
credible supporting evidence and the veteran has not provided
sufficient detail of the alleged incidents to justify
attempts at verification.

A review of the available evidence in the claims file reveals
no supporting lay statements from the veteran's fellow unit
members or others who may have witnessed or participated in
the alleged events.

In short, the sole supporting evidence that the alleged
stressful events occurred are the veteran's own testimony,
statements and notation of such experiences as recorded by
medical professionals in connection with treatment and
evaluation.

A non-combat veteran's lay testimony regarding in-service
stressors is insufficient to establish the occurrence of the
stressor and must be corroborated by credible supporting
evidence that the claimed stressors actually occurred.  Cohen
v. Brown, supra at 20 (citing Doran v. Brown, 6 Vet. App.
283, 289 (1994)).

The Board also notes that credible supporting evidence of the
actual occurrence of an in-service stressor cannot consist
solely of after-the-fact medical nexus evidence.  See Moreau
v. Brown, 9 Vet. App. 389, 396.

In reaching the present determination, the Board considered
the criteria under 38 U.S.C.A. � 1154, and would emphasize at
this juncture that it is cognizant of the circumstances,
conditions, and hardships attendant to service in Vietnam.
However, service in Vietnam is not service in combat.  Wood
v. Derwinski, 1 Vet. App. at 193 (1991).  There is no
verification of the veteran's claim of having served in
combat during any of the claimed periods of temporary duty in
Vietnam.

The Board also notes inconsistencies in the veteran's claimed
stressors.  On the Report of Contact dated in July 1998, he
reported he was forced by a lieutenant to shoot the
Vietnamese civilian.  After shooting the girl, the veteran
reported that he thereafter shot the lieutenant.  However,
when requested to provide the name of the lieutenant, the
veteran changed his story and replied that he could not
remember the man's name and furthermore was not even sure if
he actually shot the lieutenant or merely shot at the man.
At other times, the veteran reported that he could not
actually remember shooting the child at all but had
nightmares of the event.  With regard to his two temporary
duty assignments in Vietnam, the veteran reported that they
occurred in either the summer of 1971 or in 1972-1973.  He
reported at one time that he served 90 days each time on
temporary duty.  On another occasion, he reported that he
served a total of 75 days in Vietnam.  As a result of the
above inconsistencies, the Board has placed reduced probative
value on his reports of in-service stressors.

In summary, the veteran's military records show that he
worked as an outside wire and antenna maintenance repairman
who was stationed in Thailand during the Vietnam War.  He is
without combat awards or citations.  There is no support in
either military records or statements by third parties as to
the occurrence of the alleged stressful events.  The
veteran's own accounts of some of the in-service stressors
are inconsistent.  Without credible supporting evidence that
the claimed in-service stressors actually occurred, the
diagnosis of PTSD opined to be causally related to the
claimed stressful in-service events is not supportable.

The diagnoses of PTSD were based upon interviews with the
veteran and on a history of stressors as related by him.  The
Board is not bound to accept medical opinions which are based
on history supplied by the veteran where that history is
unsupported or based on inaccurate factual premises.  See
Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5
Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458
(1993); Guimond v. Brown, 6 Vet. App. 69 (1993).

Moreover, the Board is not required to accept a physician's
diagnosis "[j]ust because a physician or other health care
professional accepted the appellant's description of his
[wartime] experiences as credible and diagnosed the appellant
as suffering from PTSD."  West v. Brown, 7 Vet. App. 70, 77
(1994) quoting Wilson v. Derwinski, 2 Vet. App. 614, 618
(1992).

In conclusion, the Board has determined that there is no
credible supporting evidence that any of the claimed in-
service stressors actually occurred.  See West v. Brown,
7 Vet. App. 70, 79-80 (1994).  Thus, there is no clear
diagnosis of PTSD shown to be related to recognized military
stressors.  In light of the above, there is not an
approximate balance of positive and negative evidence to
which the benefit-of-the-doubt standard applies; the
preponderance of the evidence is against the claim of service
connection for PTSD and the veteran's appeal is denied.
38 C.F.R. � 3.304(f).  The Board finds no prejudice to the
veteran in effecting this determination on the basis of the
merits of the case as the veteran has consistently presented
arguments in this regard throughout the pursuit of his claim.
Bernard v. Brown, 4 Vet. App. 384 (1993).

ORDER

Entitlement to service connection for PTSD is denied.

	HOLLY E. MOEHLMANN
	Member, Board of Veterans' Appeals