judge_norm: A BRYANT

condition: back

condition: tinnitus

disposition: remanded

text:
Citation Nr: 0523000
Decision Date: 08/23/05    Archive Date: 09/09/05

DOCKET NO.  00-14 674	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey

THE ISSUES

1.  Whether new and material evidence has been received to
reopen a claim for entitlement to service connection for a
back disorder.

2.  Entitlement to service connection bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.

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

5.  Entitlement to service connection for headaches.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. Vavrina, Counsel

INTRODUCTION

The veteran served on active duty from June 1957 to June
1959.

This matter comes before the Board of Veterans' Appeals
(Board) from rating decisions issued by the Department of
Veterans Affairs (VA) Regional Office (RO) in Newark, New
Jersey.  In a December 1999 rating decision issued in January
2000, the RO determined that no new and material evidence
sufficient to reopen the veteran's claim for back disorder
had been submitted, and denied service connection for hearing
loss with tinnitus, headaches, and a bilateral leg disorder
as not well grounded.

Subsequently, in a January 2003 rating decision, the RO
denied service connection for post-traumatic stress disorder
(PTSD), continued a 10 percent rating for the veteran's
service-connected deformity of the left clavicle, and
confirmed its denial of service connection for hearing loss
with tinnitus, headaches, and a bilateral leg disorder on the
merits.

In a statement received in March 2003, the veteran indicated
that he would like to appeal all his claims, and if possible
have a hearing.  Since the veteran had already perfected his
appeal with regard to the issues listed above, this case is
referred to the RO to clarify whether the veteran meant this
statement to also be construed as a notice of disagreement
(NOD) with regard to his claims for an increased rating for
his deformity of the left clavicle and for service connection
for PTSD and, if so, to take appropriate action by issuing a
statement of the case (SOC).  See Manlincon v. West, 12 Vet.
App. 238 (1999).

In a 2005, the veteran testified at a hearing before the
undersigned Veterans Law Judge at the RO (Travel Board
hearing); a copy of the transcript is associated with claims
file.  At that hearing, the veteran submitted copies of VA
treatment records, along with a waiver of consideration by
the agency of original jurisdiction (AOJ).

The issues of service connection for headaches, a back
disorder, and a bilateral leg disorder 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 veteran if further action is required
on his part.

FINDINGS OF FACT

1.  VA has expended sufficient effort to obtain all relevant
evidence needed for an equitable disposition of, and
adequately notified the veteran of the evidence necessary to
substantiate the claims discussed in this decision.

2.  In a September 1959 rating decision, the RO denied the
veteran's claim for entitlement to service connection for a
back disorder; the veteran was informed of this decision the
same month but did not submit an NOD within one year of
notification.

3.  Evidence added to the record since the September 1959
rating decision is new evidence that bears directly and
substantially upon the specific matter under consideration
which, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to decide fairly the merits of the veteran's claim for
service connection for a back disorder.

4.  Competent medical evidence does not show a level of
hearing impairment that may be considered a disability for VA
purposes.

3.  There is no competent medical evidence showing that the
veteran' tinnitus is related to service.

CONCLUSIONS OF LAW

1.  The September 1959 rating decision, denying service
connection for a back disorder, is final.  38 U.S.C.A. � 7105
(West 2002 & Supp. 2005); 38 C.F.R.
�� 20.302, 20.1103 (2004).

2.  New and material evidence has been received since the
September 1959 rating decision sufficient to reopen the
veteran's claim for service connection for a back disorder.
38 U.S.C.A. � 5108 (West 2002 & Supp. 2005); 38 C.F.R.
� 3.156 (effective prior to August 29, 2001).

3.  Claimed bilateral hearing loss was not incurred in or
aggravated by service, nor may it be presumed to have been so
incurred.  38 U.S.C.A. �� 1101, 1112, 1113, 1131, 1137,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. �� 3.303,
3.307, 3.309 (2004).

4.  Tinnitus was not incurred in or aggravated by service.
38 U.S.C.A. �� 1131, 5103A, 5107 (West 2002 & Supp. 2005);
38 C.F.R. � 3.303 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) was enacted and became effective.  38 U.S.C.A.
�� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2005); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a)
(2004).  It is applicable to all claims for VA benefits, to
include claims to reopen.  Besides eliminating the
requirement that a claimant submit evidence of a well-
grounded claim, it describes VA's duty to notify and assist
claimants in substantiating a claim for VA benefits.  In
August 2001, VA issued regulations to implement the VCAA.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended
at 38 C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2004)).
The amendments became effective on November 9, 2000, except
for the amendment to 38 C.F.R. � 3.156(a), which became
effective August 29, 2001.

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. � 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice 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; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. � 3.159(b)(1).  See
VAOPGCPREC 7-2004.  Usually, VCAA notice should be provided
to a claimant before the initial unfavorable AOJ decision on
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see
also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

The Board acknowledges that the implementing regulations
modify the definition of new and material evidence and
provide for assistance to a claimant on claims to reopen.
See 66 Fed. Reg. at 45,630 (codified as amended at 38 C.F.R.
�� 3.156(a), 3.159(c) (2004)).  Because the veteran's request
to reopen the previously denied claim of service connection
for a back disorder was received in September 1998, these
regulatory provisions do not apply.  The VCAA appears to have
left intact the requirement that a claimant must first
present new and material evidence in order to reopen a
previously and finally denied claim under 38 U.S.C.A. � 5108
(West 2002 & Supp. 2005).  It is specifically noted that
nothing in the VCAA shall be construed to require the
Secretary to reopen a claim that has been disallowed except
when new and material evidence is presented or secured, as
described in 38 U.S.C.A. � 5108.  38 U.S.C.A. � 5103A(f)
(West 2002 & Supp. 2005).

Without deciding whether the notice and development
requirements of VCAA have been satisfied in the present case
with respect to the issue of whether new and material
evidence has been received to reopen the veteran's claim for
entitlement to service connection for a back disorder, it is
the Board's conclusion that the VCAA does not preclude the
Board from adjudicating the appellant's claim.  This is so
because the Board is taking action favorable to the appellant
in reopening the veteran's service-connection claim for a
back disorder, and the decision at this point poses no risk
of prejudice to the appellant.  See, e.g., Bernard v. Brown,
4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747
(1992).

Even so, after examining the record, the Board is satisfied
that all relevant facts have been properly developed, to the
extent possible, and no further notice or assistance to the
veteran is required to comply with the VCAA.  The veteran was
afforded the opportunity to provide lay or medical evidence,
which might support his claims.  In a May 1999 VA Form 21-
4138, the veteran indicated that the two physicians who
treated him from 1959 to 1995, were retired.  The Board
observes that, where records are unavailable, "VA has no duty
to seek to obtain that which does not exist."  Counts v.
Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet.
App. 233, 237 (1993).  Although he signed a VA Form 21-4124,
the veteran did not provide a sufficient address to contact
the other doctors referred to in his May 1999 statement.  The
Board observes, however, that the record does contain records
from Dr. E. R. R.  He testified at a Travel Board hearing and
submitted copies of VA treatment records.  Service medical
records, VA treatment records, and private treatment records
from the Orthopedic Associates of West Jersey (Dr. A. H. R.),
from Dr. F. T. D dated in February 2002, from Dr. E. R. R.,
and from the St. Clares/Riverside Medical Center have been
associated with the claims file.  Three buddy statements and
various lay statements from the veteran and his
representative are in the record.  In addition, in February
1999, December 2003, and January and November 2004, the
veteran was afforded VA examinations.  Since his service-
connection claims were originally denied as not well grounded
prior to the enactment of the VCAA, in January 2003, the RO
readjudicated them on the merits.  Thus, the Board finds that
the VA has obtained, or made reasonable efforts to obtain,
all medical evidence, which might be relevant to the
veteran's claims.  This is particularly so in light of the
facts that the veteran's hearing loss is not of the severity
that it may be considered to be a disability for VA purposes
under 38 C.F.R. � 3.385 and the examiner's opinion that the
veteran's tinnitus is not related to service.  Accordingly,
the Board finds that no further assistance to the veteran in
acquiring medical evidence is required by statute.
38 U.S.C.A. � 5103A (West 2002).  Under these circumstances,
the Board finds that the service medical records, lay
testimony and statements, and non-VA and VA treatment and
examination reports, which evaluate the status of the
veteran's health, are adequate for determining whether
service connection for hearing loss and tinnitus is
warranted.

In Pelegrini, the U.S. Court of Appeals for Veterans Claims
(Court) held, in part, that a VCAA notice, as required by 38
U.S.C.A. � 5103(a), must be provided to a claimant before the
initial unfavorable AOJ decision on a claim for VA benefits.
In the present case, the unfavorable AOJ decision that is the
basis of this appeal was already decided and appealed prior
to the VCAA's enactment.  The Court acknowledged in Pelegrini
that where, as here, the � 5103(a) notice was not mandated at
the time of the initial AOJ decision, the AOJ did not err in
not providing such notice.  Rather, the appellant has the
right to content complying notice and proper subsequent VA
process.  Pelegrini, 18 Vet. App. at 120.

Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
Although VCAA notice was provided to the appellant after the
initial adjudication, the appellant has not been prejudiced
thereby.  In an April 1999 duty to assist letter, the AOJ
asked the veteran to provide medical records showing
treatment for hearing loss during service or within one year
of discharge, and evidence of treatment/observation from
discharge to the present, to provide evidence of treatment
during service and since discharge for tinnitus, headaches,
and a bilateral leg condition, and to submit new and material
evidence to reopen his claim for service connection for a
back disorder.  VA satisfied its duty to notify by means of a
November 2003 letter from the AOJ to the appellant that was
issued prior to the certification of the appeal to the Board.
That letter informed the appellant of what evidence was
required to substantiate his claims and of his and VA's
respective duties for obtaining evidence.  The appellant was
also notified that it was his responsibility to make sure
that VA received all requested records that are not in the
possession of a Federal department or agency.  Although the
November 2003 letter described the current, and not the
previous, standard governing new and material evidence, the
AOJ notified the veteran of the proper standard in the
December 1999 rating decision and the April 2000 SOC.  The
cover letters to the supplemental statements of the case
(SSOCs) issued in July 2002 and February 2005, gave the
veteran additional time to make any comment he wished.  At
the end of the Travel Board hearing, the veteran indicated
that he had no additional comments to add to the record.  The
Board acknowledges that the VCAA letter did not precede the
initial RO adjudication, see Pelegrini, 18 Vet. App. at 118-
20, but that letter, the cover letters to the SSOCs, and the
hearing provided the appellant with ample opportunity to
respond before the case was forwarded to the Board for
appellate consideration.  Thus, the content of the notice
provided to the appellant fully complied with the
requirements of 38 U.S.C.A.
� 5103(a) and 38 C.F.R. � 3.159(b) regarding VA's duty to
notify.  Not only has the appellant been provided with every
opportunity to submit evidence and argument in support of his
claim and to respond to VA notices, but the actions taken by
VA have essentially cured the error in the timing of notice.
Further, the Board finds that the purpose behind the notice
requirement has been satisfied because the appellant has been
afforded a meaningful opportunity to participate effectively
in the processing of his claims.  See Mayfield v. Nicholson,
19 Vet. App. 103, 123-29 (2005).  For these reasons, it is
not prejudicial to the appellant for the Board to proceed to
finally decide this appeal.  Id. (holding timing-of-notice
error not prejudicial where fairness of adjudication was
unaffected because appellant was able to participate
effectively in processing of claim); see also 38 U.S.C.A.
� 7261(b)(2); see Conway v. Principi, 353 F.3d 1369 (Fed.
Cir. 2004).

All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied.  See Sutton v. Brown, 9 Vet. App. 553
(1996); see also 38 C.F.R. � 20.1102 (2004) (harmless error).
As such, the Board finds that there has been no prejudice to
the appellant in this case that would warrant further notice
or development, his procedural rights have not been abridged,
and the Board will proceed with appellate review.  See 66
Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38
C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2004));
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Bernard, 4
Vet. App. at 393.

New and Material Claim

The first issue before the Board is whether the veteran has
submitted new and material evidence to reopen his previously
denied claim for entitlement to service connection for a back
disorder.  The requirement of submitting new and material
evidence to reopen a claim is a material legal issue that the
Board is required to address on appeal.  Barnett v. Brown, 83
F.3d 1380, 1383-84 (Fed. Cir. 1996).

The RO first denied a claim for entitlement to service
connection for a back disorder in a September 1959 rating
decision, noting that a back condition that was treated in
service was acute, transitory, and self-limiting from which a
complete recovery had been made and that his then present
back deformity was a developmental condition, spina bifida,
which is not considered a disability under the law.  The
veteran did not submit an NOD within one year of notification
of denial.  In a December 1999 rating decision issued in
January 2002, the RO determined that no new and material
evidence had been received to reopen his claim for service
connection for a back disorder.  The veteran was notified of
the RO's action and advised of his appellate rights the next
month; the veteran later perfected his appeal.

Since the veteran did not submit a timely NOD with regard to
the September 1959 rating decision, it became final and is
not subject to revision on the same factual basis.  38
U.S.C.A. � 7105 (West 2002 & Supp. 2005); 38 C.F.R. �
3.104(a) (2004); 38 C.F.R. � 20.1103 (2004).

When a claim to reopen is presented, a two-step analysis is
performed.  The first step of which is a determination of
whether the evidence presented or secured since the last
final disallowance of the claim is "new and material."  See
Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc);
see also 38 U.S.C. A. � 5108; Hodge v. West, 155 F.3d 1356,
1359-60 (Fed. Cir. 1998); Manio v. Derwinski, 1 Vet. App. 140
(1990).  New and material evidence is 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) (effective prior to August 29, 2001).  Second, if
VA determines that the evidence is new and material, VA may
then proceed to evaluate the merits of the claim on the basis
of all evidence of record, but only after ensuring that the
duty to assist has been fulfilled.  The second step becomes
applicable only when the preceding step is satisfied.  See
Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).  In
order for evidence to be sufficient to reopen a previously
disallowed claim, it must be both new and material.  If the
evidence is not material, the inquiry ends and the claim
cannot be reopened.  The Board has reviewed all the evidence
of record, and for the reasons and bases set forth below
concludes that new and material evidence sufficient to reopen
the appellant's claim for service connection for a back
disorder has been received.

The evidence presented or secured since the September 1959
rating decision consists of: February 1999 VA examination
reports, which include diagnoses of multi-level degenerative
disc disease of the lumbosacral spine and back strain;
private and VA medical records, showing treatment for chronic
back pain with sciatica and arthralgia of the low back; buddy
statements confirming that the veteran's left clavicle was
injured during training and reflecting that heavy lifting was
part of his duties as a tank driver; and the veteran's
testimony that his current back disorder is related to heavy
lifting during service.  This evidence is clearly new, in
that it is not redundant of other evidence previously
considered.  Moreover, much of this evidence is material to
the issue under consideration, as it includes various
diagnoses of a back disorder(s) and buddy statements and
testimony linking such a disorder to service.  As such this
evidence bears directly and substantially upon the specific
matter under consideration and is so significant that it must
be considered in order to fairly decide the merits of the
claim.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156
(effective prior to August 29, 2001).  Accordingly, the
appellant's service-connection claim for a back disorder is
reopened.  To this extent, the appeal is granted.

Service Connection

Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military, naval, or air service.  See 38 U.S.C.A. � 1131
(West 2002 & Supp. 2005); 38 C.F.R. �� 3.1(k), 3.303(a)
(2004).  Where a veteran who served for ninety days or more
during a period of war (or during peacetime service after
December 31, 1946) develops certain chronic diseases, such as
sensorineural hearing loss, to a degree of 10 percent or more
within one year from separation from service, such diseases
may be presumed to have been incurred in service even though
there is no evidence of such disease during the period of
service.  This presumption is rebuttable by affirmative
evidence to the contrary.  See 38 U.S.C.A. �� 1101, 1112,
1113, 1137 (West 1991 & Supp. 2002); 38 C.F.R.
�� 3.307, 3.309 (2001).  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).  Further, if a condition noted during
service is not shown to be chronic, then generally, a showing
of continuity of symptoms after service is required for
service connection.  See 38 C.F.R. � 3.303(b).

Service connection connotes many factors but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service.  In order to prevail in a
claim for service connection there must be medical evidence
of a current disability as established by a medical
diagnosis; of incurrence or aggravation of a disease or
injury in service, established by lay or medical evidence;
and of a nexus between the in-service injury or disease and
the current disability established by medical evidence.
Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  Medical
evidence is required to prove the existence of a current
disability and to fulfill the nexus requirement.  Lay or
medical evidence, as appropriate, may be used to substantiate
service incurrence.

The United States Court of Appeals for the Federal Circuit
(Federal Circuit Court) has also recognized the Board's
"authority to discount the weight and probity of evidence in
light of its own inherent characteristics and its
relationship to other items of evidence."  Madden v. Gober,
125 F.3d 1477, 1481 (Fed. Cir. 1997).

In determining whether evidence submitted by a veteran is
credible, the Board may consider internal consistency, facial
plausibility, and consistency with other evidence.  Caluza v.
Brown, 7 Vet. App. 498, 511 (1995).  The Court has also held
that "Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability.  In the absence of proof of a
present disability there can be no valid claim."  Brammer v.
Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v.
Derwinski, 2 Vet. App. 141, 143-44 (1992).

Hearing Loss with Tinnitus

The veteran contends that he suffers from hearing loss and
tinnitus as a result of noise exposure in service.
Applicable regulations provide that impaired hearing will be
considered 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.
See 38 C.F.R. � 3.385 (2004).

It is not required that hearing loss disability during
service be shown.  The Court has held, "[W]hen audiometric
test results at a veteran's separation from service do not
meet the regulatory requirement for establishing a
'disability' at that time, he or she may nevertheless
establish service connection for a current hearing disability
by submitting evidence that the current disability is
causally related to service."  Hensley v. Brown, 5 Vet. App.
155, 160 (1993).  In that case, the Court agreed with the
Secretary's suggestion that service connection may be
established if the record shows acoustic trauma due to noise
exposure in service, audiometric test results show an upward
trend in auditory thresholds, post-service audiometric
testing establishes current hearing loss constituting a
disability under 38 C.F.R. � 3.385, and competent evidence
relates current hearing loss disability to active service.
Id., at 159-60.

The first requirement of a claim for service connection is a
diagnosis of a disability.  The veteran's service medical
records include pre-induction and separation examination
reports, which note that the veteran's ears and eardrums were
clinically evaluated as normal.  Service medical records
reflect normal hearing at service discharge, 15/15 using a
whispered voice test.  An August 1959 VA examination report
revealed normal clinical findings for the ears, and neither
tinnitus nor hearing loss were complained of by the veteran,
nor diagnosed by the examiner.  Moreover, there are no
records showing bilateral hearing loss to a degree of 10
percent or more within one year from separation from service.
Thus, the veteran's claimed hearing loss is not presumed to
have been incurred in service under the provisions of 38
C.F.R. �� 3.307, 3.309.

At his Travel Board hearing, the veteran testified that he
did not wear any type of ear protection as a tank driver,
while the tank's gunner was firing on maneuvers in Germany.
He claims that he had both hearing loss and tinnitus within
one year of discharge as a result and that a private
physician has linked his hearing loss to being around tanks
in service.  The veteran admitted that he does not wear
hearing aids.

In a January 2002 buddy statement, J. W. O. revealed that he
was the veteran's tank commander and that the veteran was the
driver and sat directly under the 90-mm cannon, which was
very loud and hard on the eardrums.  He added that his own
hearing had been affected even though he was in the top
hatch.

The record contains February 2002 private audiological
examination results and a statement from F. T. Deane, M.D.,
that the veteran has moderate sensorineural hearing loss
partially attributable to his time around tanks while in the
armed services.  The private audiological examination was
hard to read but appeared to show puretone thresholds, in
decibels, were:

HERTZ

500
1000
2000
3000
4000
RIGHT
25
20
25
30
47
LEFT
40
55
40
30
50

Based on these figures, the puretone average for the right
ear was 30.5 and the average for the left ear was 43.75.

The record contains several post-service VA audiological
examinations from February 1999 to November 2004.

A February 1999 VA audiological examination showed puretone
thresholds, in decibels, were:

HERTZ

500
1000
2000
3000
4000
RIGHT
20
15
30
25
40
LEFT
15
20
20
30
45

The puretone average for the right ear was 27.5 and the
average for the left ear was 28.75.  Speech recognition
scores using the Maryland CNC Test were 90 percent in the
right ear and 86 percent in the left ear.  Mild to severe
sensorineural hearing loss was noted at the 2000, 4000 and
8000 Hertz levels in the right ear and at the 3000, 4000 and
8000 Hertz levels in the left ear.  The veteran stated that
he had had intermittent tinnitus, worse in the left ear, for
many years.  At a February 1999 VA ear disease examination,
the veteran complained of tinnitus by history and difficultly
hearing.  He also related a history of a right stapedectomy
due to otosclerosis.  The examination was essentially normal,
with no clinical evidence of active disease in the ears.  The
diagnoses included tinnitus by history, otosclerosis by
history, bilateral sensorineural hearing loss, and no active
ear disease.

The clinical findings were nearly identical on a December
2003 VA ear disease examination, except that the veteran was
noted to have bilateral sensorineural hearing loss using
tuning fork testing.  The diagnoses included tinnitus by
history, otosclerosis by history, residual of right
stapedectomy, and bilateral sensorineural hearing loss on
clinical examination.  A VA December 2003 audiological
examiner indicated that the veteran had been examined on
December 9 and 12, 2003, but the test results were found to
be unreliable and another examination was recommended to
confirm test results already obtained.

A January 2004 VA audiological examination report reveals
that a review of the claims file showed that there is no
record of treatment in service for either hearing loss or
tinnitus.  The veteran's separation examination report also
showed no complaints of any ear, nose, or throat problems.
In 1992, the veteran was diagnosed with otosclerosis on the
right side by a private physician.  In that physician's
notation of the veteran's history, the veteran had denied
having tinnitus at that time.  Subsequently, the veteran was
treated surgically for otosclerosis on the right side.  The
examiner clarified that otosclerosis is a middle ear
pathology not attributable to any noise exposure.  The
examiner added that, on the veteran's last VA audiological
examination, no sensorineural hearing loss was noted, instead
there was an airborne gap at 4000 Hertz, which indicated a
normal bone line.  The puretone threshold, which indicated a
mild hearing loss, most likely was due to the surgical
history in the right ear due to otosclerosis.  Therefore, the
examiner indicated that it is not at least as likely as not
that the veteran's hearing loss could be attributed to his
time in service.  Also since dating back to 1992, the veteran
had denied tinnitus, the examiner opined it is not at least
as likely as not the veteran's tinnitus could be attributed
to his time in service.

A September 2004 VA audiological examiner stated that no
definite statement regarding the veteran's hearing
sensitivity could be provided given the fact that on three
occasions varying test results were obtained, consistent with
the veteran's poor response reliability, not his pathology.
Another examination was recommended.

A November 2004 VA audiological examiner noted that, in 1992,
when the veteran was seen by a private physician regarding
complaints of right hearing loss in the past year, he denied
tinnitus.  He was diagnosed as having otosclerosis -- a
middle ear pathology inconsistent with noise exposure -- and
later had surgery to mobilize the stapes.  A private
audiology evaluation done in 2002 describes hearing loss as
bilateral moderate sensorineural; however, these test results
are inconsistent with the diagnosis of otosclerosis and this
test is not considered reliable evidence as there was no
puretone average/speech threshold agreement and no speech
discrimination testing conducted.  Likewise, the three VA
examination reports from 1999 through 2003 were reviewed and
their results were also found to be inconsistent due to the
veteran's overall poor response reliability.  The veteran
reported a history of military noise exposure while serving
in a tank battalion.  He also reported positive noise
exposure occupationally working near the sorting machines in
the post office, indicating that the machines were constant
and loud and that the post office had provided them only
recently with personal headphones/radio to listen to music
while sitting in front of the machines.  The veteran denied
recreational noise exposure.  He also related a significant
history of right stapes mobilization in 1992 by a private
physician.  Since that time he reported momentary "humming"
in the right ear, stating that his surgeon had reported that
this was a normal postoperative complaint.

The November 2004 VA audiological examination showed puretone
thresholds, in decibels, were:

HERTZ

500
1000
2000
3000
4000
RIGHT
25
20
25
25
30
LEFT
10
 5
20
20
25

The puretone average for the right ear was 25 and the average
for the left ear was 18.  Speech recognition scores using the
Maryland CNC Test were 98 percent in both ears.  Thus, the
results showed hearing thresholds were within normal limits
from 500 through 3000 Hertz and mild sensorineural hearing
loss at 4000 Hertz in the right ear; and hearing thresholds
were within normal limits from 500 through 4000 Hertz in the
left ear.  Therefore, the examiner indicated that the
veteran's complaint of hearing loss is less likely as not
caused by, or a result of, military noise exposure.  Also,
the examiner opined that the veteran's tinnitus was not
caused by or a result of military noise exposure.

An October 1998 VA treatment record shows that the veteran
denied tinnitus and hearing problems.  There are no VA
treatment records showing complaints of, or treatment for,
hearing loss or tinnitus from 1998 to February 2004.

Based on the September and November 2004 VA examiners' review
of the claims file, it appears that the earlier post-service
private and VA audiological evaluation results were
determined to be inconsistent due to the veteran's overall
poor response reliability and inconsistency with the previous
diagnosis of otosclerosis.  In particular, the November 2004
examiner noted that the 2002 private audiology evaluation
describes hearing loss as bilateral moderate sensorineural;
however, these test results are inconsistent with the
diagnosis of otosclerosis in the right ear, which is not due
to noise exposure.  Moreover, the 2002 private audiological
evaluation is not considered reliable evidence as there was
no puretone average/speech threshold agreement and no speech
discrimination testing conducted as required by the
regulations.  Thus, the only reliable test results appear to
be those from the November 2004 VA examination report.  That
report does not reveal any hearing loss meeting the criteria
of 38 C.F.R. � 3.385 such that it could be considered a
disability for VA purposes.

The veteran's speech recognition scores using the Maryland
CNC Test were not less than 94 percent and the auditory
threshold in any of the frequencies 500, 1000, 2000, 3000,
4000 Hertz was not 40 decibels or greater; nor were the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz 26 decibels or greater.
The veteran's hearing loss is not of the severity that it may
be considered to be a disability for VA purposes under
38 C.F.R. � 3.385.  Thus, he fails to satisfy the first
element of a claim, that is, a current disability, and his
claim for service connection for a hearing loss must be
denied.  The Board notes that Dr. F. T. Deane appeared to
partially link the veteran's claimed hearing loss to his in-
service exposure to tanks based on the veteran's self-
reported history of noise exposure in service.  Mere
acquiescence with the appellant's contentions does not
constitute competent medical evidence of diagnosis or
causality.  LeShore v. Brown, 8 Vet. App. 406 (1996).  The
Board is not bound to accept medical opinions or conclusions,
which are based on a history supplied by veteran or family
members, where that history is unsupported by the medical
evidence.  See Black v. Brown, 5 Vet. App. 177, 180 (1993).
This is particularly so here where the audiological test
results appear to have been skewed by the veteran's
unreliable responses on multiple occasions; his 1992
statement that he did not have tinnitus and 1992 private
diagnosis of otosclerosis, a pathology not due to noise
exposure; his 1998 statement that he did not have any hearing
problems or tinnitus; and his November 2004 statements to the
examiner that he had had occupational noise exposure at the
post office, which is inconsistent with his hearing
testimony.  Moreover, even the February 1999 VA neurological
examiner indicated that the veteran's hearing loss was likely
due to his middle ear otosclerosis.

Although several VA examiners indicate that the veteran has
tinnitus, neither a private nor a VA physician has opined
that his claimed tinnitus is related to service.  To the
contrary, two VA examiners had opined that his tinnitus is
not related to service.  This is particularly so in light of
the veteran's statements in 1992 and 1998 that he did not
have tinnitus.  Thus, the post-service medical evidence fails
to show medical evidence that his tinnitus is related to
service; therefore the claim must be denied.

The only other evidence the veteran has submitted that
supports his claims is his own testimony and statements and
those of his tank commander and his representative.  They, as
a lay persons, with no apparent medical expertise or
training, are not competent to comment on the presence, or
etiology, of a medical disorder.  Rather, medical evidence is
needed to that effect.  See Lathan v. Brown, 7 Vet. App. 359,
365 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992) (holding that laypersons are not competent to offer
medical opinions).  Thus, their statements do not establish
the required evidence needed, and the claim must be denied.

The Board considered the benefit of a doubt doctrine;
however, as the preponderance of the evidence is against the
appellant's claim for service connection for hearing loss and
tinnitus; the doctrine is not applicable.  See Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

ORDER

New and material evidence sufficient to reopen the
appellant's claim for service connection for a back disorder
has been received and the claim is reopened.  To this extent,
the appeal is granted.

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.

REMAND

New and material evidence having been submitted to reopen a
claim for service connection for a back disorder, the claim
is REMANDED for de novo review.

Although no bilateral leg disorder has been diagnosed by a VA
examiner, the veteran has been diagnosed with arthralgia of
the knees in VA treatment records.  In addition, a February
1999 VA neurological examiner diagnosed the veteran with
headaches.  The Board notes that the duty to assist includes
obtaining non-VA and VA treatment records, and providing a VA
medical examination or a medical opinion when necessary for
an adequate determination.  In May 1999, the veteran
indicated that Dr. S. Bigelson had prescribed medication for
back, leg, and head pain and at his hearing testified that
Dr. A. H. Rosenzweig treated him for back.  Private and VA
medical records show treatment of leg cramps, back pain, and
headaches.  The record also contains records from the Lyons
VA Medical Center from 1998 to February 2004.  On remand, the
RO should obtain any missing private or VA records.
*
There is evidence that the veteran has been diagnosed with
various back disorders.  The presence of one diagnosed back
disorder does not preclude the veteran from also being
diagnosed with another.  While in service the veteran
received treatment for back pain diagnosed as muscle strain
after lifting a sprocket wheel.  Since the record shows
multiple diagnoses, the veteran should be afforded a VA
examination to provide an opinion as to whether any back
disorder found on examination may be related to service, to
include heavy lifting as a tank driver or injuries sustained
when he broke his left clavicle, to his spina bifida, to age,
or to his service-connected left shoulder disability.  The
Board observes that service connection may be granted for a
disorder found to be proximately due to, or the result of, a
service-connected disability, including on the basis of
aggravation.  38 C.F.R. � 3.310 (2003); Allen v. Brown, 7
Vet. App. 439 (1995).  The VA should provide the appropriate
VCAA notice with regard to service connection on a secondary
basis.

Similarly, the Board observes that on the medical history
portion of the veteran's separation examination report, he
checked "yes" for having frequent or severe headaches,
cramps in his legs, and bone, joint, or other deformity.
Service medical records show that the veteran bumped his face
on the loader's hatch of the tank and that he sustained a
small cut to the right upper nose which required stitches in
February 1958 and he is service-connected for a scar to the
right eyebrow as a result of that incident.  In June 1958,
the veteran fell while running and fractured his left
clavicle.  On remand, the RO should provide the veteran with
examinations to provide etiological opinions with regard to
the veteran's headaches and claimed bilateral leg disorders.
The Board reminds the veteran that the duty to assist is not
a one-way street.  Wood v. Derwinski, 1 Vet. App. 190 (1991).

Accordingly, further appellate consideration will be deferred
and the case is REMANDED for the following:

1.  The VA should ask the veteran to
identify all VA and non-VA health care
providers that have treated him for
headaches, and any back or leg disorders
from June 1959 to the present.  The RO
should attempt to obtain records from
each health care provider he identifies
that might have available records, if not
already in the claims file.  In
particular, the RO should obtain all
missing medical records from Dr. A. H.
Rosenzweig of the Orthopedic Associates
of West Jersey, Dr. S. Bigelson of
Rockaway, New Jersey, and the Lyons VA
Medical Center, not already associated
with the claims file, from June 1959 to
the present.  If records are unavailable,
please have the provider so indicate.

2.  The RO must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. 38 U.S.C.A. �
5103A (West 2002) and 38 C.F.R. � 3.159
(2004)), as well as VAOPGCPREC 7-2004.
In particular, the RO must (1) inform the
claimant about the information and
evidence needed to establish service
connection on a secondary basis; and (2)
ask him to provide any evidence in his
possession that pertains to his service-
connection claims.  The claims file must
include documentation that there has been
compliance with the VA's duties to notify
and assist a claimant as set forth in the
VCAA as specifically affecting the issues
on appeal.

3.  After completion of 1 and 2 above,
the appellant should be scheduled for
examinations to ascertain the nature and
etiology of any headache, back, or leg
disorder(s) found.  The claims file must
be made available to, and be reviewed by,
the examiner(s) in connection with the
examination(s), and the report(s) should
so indicate.  The examiner(s) should
perform any tests or studies deemed
necessary for an accurate assessment,
including X-ray examination and range of
motion studies expressed in degrees.  The
examination report(s) should include a
detailed account of all pathology found
to be present.  The Board observes that
the veteran was found to have spina
bifida on VA examination in August 1959
and degenerative disc disease of the
lumbosacral spine in X-ray studies
performed in February 1999.  After asking
the veteran about the history of his
claimed disorders and reviewing the
claims file, the appropriate examiner
should provide explicit responses to the
following questions:

(a) Does the veteran have any headache,
back, or leg disorder, to include
arthritis?

(b) For any identified disorder(s), the
examiner should determine the etiology
and the nature and extent of such
disorder(s).  For each identified
disorder, the examiner(s) should offer an
opinion as to whether it is at least as
likely as not (50 percent or more
probability) that such disorder (1) began
during, or was aggravated (worsened), as
the result of some incident of active
service, to include as a result of
bumping his face on the loader's hatch of
the tank in February 1958 or a fall when
he fractured his left clavicle in June
1958; (2) is due to an intervening post-
service event(s); was proximately caused,
or worsened (aggravated), by his service-
connected left shoulder deformity; or (3)
is due to aging.  If arthritis is found,
was it manifested within one year of
discharge from service?  The veteran was
discharged from service on June 3, 1959.
With regard to a back disorder, the
examiner also should opine whether any
current back disorder is due to the
veteran's spina bifida.

The rationale for any opinion and all
clinical findings should be given in
detail.  If it is not possible to provide
an opinion, the examiner(s) should state
the reasons why.

4.  After completion of the above, the RO
should readjudicate the appellant's
service-connection claims, to include
consideration of whether service
connection is warranted on a direct basis
due to active duty, presumptive basis, or
secondary basis due to his service-
connected disorders.  If any
determination remains adverse, the
appellant and his representative should
be furnished a supplemental statement of
the case, which discusses and fully sets
forth the controlling law and regulations
pertinent to the appeal.  The requisite
period of time for a response should be
afforded.

The purposes of this remand are to comply with due process of
law and to further develop the veteran's claims.  No action
by the veteran is required until he receives further notice;
however, the veteran is advised that failure to cooperate by
reporting for examination may result in the denial of his
claim(s).  38 C.F.R. � 3.655 (2004).  The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition warranted in this case, pending completion of the
above.  The appellant and his representative have 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 The Veterans Benefits Act of
2003, Pub. L. No. 108-183, � 707(a), (b), 117 Stat. 2651
(2003) (to be codified at 38 U.S.C. �� 5109B, 7112).

______________________________________________
	A. BRYANT
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: MARK D HINDIN

disposition: granted

text:
Citation Nr: 0524000
Decision Date: 08/31/05    Archive Date: 09/09/05

DOCKET NO.  00-13 585	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania

THE ISSUE

Entitlement to service connection for residuals of cold
injuries to the hand.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Joseph Michael Horrigan

INTRODUCTION

The veteran had active military service from April 1943 to
December 1945, and from July 1958 to April 1962.

The present matter arises before the Board of Veterans'
Appeals (Board) on appeal of an April 2000 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania.

In June 2000, the veteran submitted a VA Form 9 (Appeal to
Board of Veterans' Appeals), wherein he indicated that he
desired a hearing before a Veterans Law Judge sitting at the
RO. The requested hearing was scheduled for January 2002. The
record indicates that the hearing was canceled due to the
veteran's illness. In a May 2002 decision, the Board remanded
the veteran's claim to the RO to reschedule the veteran for
another hearing. In July 2002, the veteran, through his
representative, withdrew his hearing request.

In a decision of September 2003 the Board granted service
connection for bilateral hearing loss and for cold injury
residuals of the lower extremities.  The issue of entitlement
to service connection for cold injury residuals of the hands
was remanded to the RO for further action that has now been
completed.  This issue is now before the Board for further
appellate consideration at this time.

FINDING OF FACT

The veteran has onychomycosis of the thumbnails and cold
sensitivity in the hands due to cold injury sustained during
service.

CONCLUSION OF LAW

The veteran has onychomycois as residuals of cold injury to
the hands that was incurred in or aggravated by service.  38
U.S.C.A. �� 1110, 1154, 5107 (West 2002); 38 C.F.R. �� 3.102,
3.303, 3.304(b) (2004).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2004).

The United States Court of Appeals for Veterans Claims
(Court) has concluded that the VCAA 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").
In view of the Board's favorable decision in this appeal,
further assistance is unnecessary to aid the appellant in
substantiating his claim.

I.	Factual Basis.

The veteran served in the Normandy, northern France,
Ardennes, Rhineland, and Central European campaigns.  In
April 2000, the National Personnel Records Center reported
that most of the veteran's personnel records and service
medical records were destroyed.  A review of those records
that were available reflects a separation medical examination
undertaken in December 1945, which revealed no pertinent
abnormalities.

In June 2003, the veteran underwent a VA cold injury
examination. He reported that he sustained cold-related
injuries preceding and during the Battle of the Bulge. This
involved extremely cold temperatures with snow. He said that
he had trouble keeping his hands warm.  He denied any
ulceration or open areas on the hands, which never turned
black.  He denied any crusting on the hands, but he did have
tingling in the hands and fingers at one time or another.  He
denied any Raynaud phenomena symptoms and there were
complaints of stiffness, numbness, or paresthesia.  He did
not describe any pain indicative of causalgia or reflex
sympathetic dystrophy and he did not have a history of
peripheral vascular disease.    He did report occasional
erythema of the palms.

Evaluation revealed deformity of the distal portions of the
third and fourth fingers on the right, which he attributed to
a service traumatic injury.  The skin of the hands was normal
and there was no edema or atrophy of the hands.  The
temperature of the hands felt normal.  There was no unusual
moisture and the skin did not feel dry.  The nails were
normal except for some onychomycosis of the thumbs.  Radial
pulses were 2 + bilaterally and ulnar filling was good
bilaterally. At the conclusion of the examination the
diagnoses included onychomycosis.

The examiner opined that it was as likely as not that the
veteran sustained cold injuries preceding and during the
Battle of the Bulge, involving both cold temperature and
wetness.  The cold sensitization described by the veteran was
also felt, as likely as not, to be related to cold injury
residuals sustained in service.  The examiner opined that the
onychomycosis was a residual of cold immersion injury.

II.	Legal Analysis.

Under the governing statutory and regulatory criteria,
service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury or disease during such service. 38 U.S.C.A. � 1110; 38
C.F.R. �� 3.303(a).

When 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).

The Secretary is required to accept as sufficient proof of
service connection satisfactory lay or other evidence, with
respect to an injury or disease claimed to have been incurred
during combat, even in the absence of official records to
corroborate incurrence of the claimed injury or disease,
provided that the evidence is consistent with the
circumstances, conditions, or hardships of such service, and
to resolve every reasonable doubt in favor of the veteran. 38
U.S.C.A. � 1154(b); 38 C.F.R. � 3.304(d).

The veteran is competent to state that he sustained periods
of cold exposure of the hands in service, and his cold
exposure is consistent with the circumstances of his service
in combat during World War II.  38 U.S.C.A. � 1154(b).  The
June 2003 examination provides competent opinion linking
current onychomycosis of the thumbs and cold sensitivity to
the in-service cold exposure.

There is no competent opinion against that of the VA
physician.  As such, the evidence is in favor of the
veteran's claims.  Accordingly, service connection is
warranted for onychomycosis of the thumbnails as cold injury
residuals of the hands.  38 U.S.C.A. � 5107(b).

ORDER

Entitlement to service connection for residuals of cold
injuries to the hands, namely onychomycosis of the thumbs and
cold sensitivity, is granted.

____________________________________________
	Mark D. Hindin
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: MARK F HALSEY

disposition: denied

text:
Citation Nr: 0525000
Decision Date: 09/14/05    Archive Date: 09/21/05

DOCKET NO.  04 11 250	)	DATE
	)
	)

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

THE ISSUES

1.  Whether there was clear and unmistakable error (CUE) in a
June 1997 rating decision which established entitlement to an
effective date of February 19, 1997, for the grant of service
connection for post-traumatic stress disorder (PTSD).

2.  Whether the manner of calculation of past-due benefits
awarded the veteran was correct.

REPRESENTATION

Appellant represented by:	Kenneth M. Carpenter, Attorney
at Law

ATTORNEY FOR THE BOARD

Van Stewart, Associate Counsel

INTRODUCTION

The veteran had active military service from March 1965 to
November 1968.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a April 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.

(Consideration of the appellant's claim of CUE is deferred
pending completion of the development sought in the remand
that follows the decision below.)

FINDING OF FACT

The manner of calculating the veteran's past-due benefits
included payments based on devalued dollars in accordance
with the exact dollar amounts authorized over time by
Congress for the 100 percent rate, without consideration of
payment of interest.

CONCLUSION OF LAW

The veteran's past-due benefits were correctly calculated.
38 U.S.C.A. � 1114(j) (West 2002); 38 C.F.R. � 3.21 (2004);
Sandstrom v. Principi, 358 F.3d 1376 (Fed. Cir. 2004).

REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran submitted a claim for service connection for
PTSD, which was received by the RO on February 19, 1997.
Service connection for PTSD was granted in a rating decision
dated in June 1997, rated as 30 percent disabling, with an
effective date of February 19, 1997, the date of receipt of
the veteran's claim.  The veteran's appeal of the RO's
finding of 30 percent disability was dismissed by the Board
in a December 2000 decision because the veteran had failed to
timely appeal.  The veteran subsequently filed a claim for an
increased rating for PTSD.  That claim was granted in a
rating decision dated in April 2002, increasing the rating to
100 percent disabling, with the same effective date--February
19, 1997, as established by the rating decision of June 1997.

The veteran's attorney submitted a notice of disagreement
(NOD), dated in March 2003, appealing the manner in which the
veteran's past-due benefits had been calculated.  The claim
was made that the past-due benefits should have been
calculated utilizing a flat rate of $2,163 per month, plus
$124 per month for dependent benefits, pursuant to
38 U.S.C.A. � 1114(j), rather than at a progressively
increasing rate, as the RO had done.

The Board notes that the rates of disability compensation
payable to veterans are established by law.  See 38 U.S.C.A.
� 1114 (West 2002).  These rates are periodically adjusted by
Congress, usually on an annual basis.  For example, the
current version of 38 U.S.C.A. � 1114(j) provides that the
monthly rate for total disability is $2,239, and Congress
specifically provided that the current version of section
1114 providing the $2,239 monthly rate was to take effect on
December 10, 2004.  Pub. L. No. 108-454, � 307, 118 Stat.
3612 (Dec. 10, 2004).  In previous years, Congress
consistently specified effective dates for its amendments to
section 1114.

As noted, in an April 2002 rating decision the RO determined
that the veteran was entitled to a 100 percent rating for
PTSD for the period beginning on February 19, 1997, based on
the date of his original claim for service connection for
PTSD, and as established by the June 1997 rating decision.

In a May 2002 letter, the RO notified the veteran that he
would be paid the amount that he would have received had he
been rated 100 percent disabled at the time he filed his
original application for service connection on February 19,
1997, as specified by the versions of 38 U.S.C.A. � 1114(j)
in effect at the time the payments would have been made.

The veteran's attorney argues that the monthly compensation
amount of $2,163, which became effective on December 1, 2001
by statutory amendment to 38 U.S.C.A. � 1114(j), should apply
retroactively to all past-due payments.  The veteran's
attorney argues that the plain language of 38 U.S.C.A. �
1114(j) requires payment at the dollar amount written into
the version of the statute in effect at the time of the
rating decision issuing the 100 percent disability rating.

This argument is without merit as it has no basis in statute
or established case law.  The veteran's attorney previously
advocated a similar position in a case where retroactive
special monthly compensation benefits were awarded on the
basis of clear and unmistakable error (CUE).  Sandstrom v.
Principi, 358 F.3d 1376 (Fed. Cir. 2004).  The veteran in
Sandstrom argued that VA had erroneously calculated the rate
of his retroactive benefits during the time period in
question (from 1969 to 1996) by applying the monthly rate in
effect for 1969 ("nominal" dollars), then increasing the
monthly amount due by the amount authorized by statute during
that time period.  The veteran in Sandstrom asserted that the
amount should have been calculated according to the 1996 rate
("real" dollars), so that the 1996 correction would have
had the "same effect," pursuant to 38 U.S.C.A. � 5109A and
38 C.F.R. � 3.105(a), as if the decision had been made in
1969.  Sandstrom complained that because of inflation between
1969 and 1996, he was paid in deflated dollars.

While the case was not decided on the basis of CUE, the
Federal Circuit specifically rejected the argument that past-
due payments should be paid in "real" rather than
"nominal" dollars.  In this regard, Sandstrom is directly
on point.  The Federal Circuit's informative opinion noted
that

[Sandstrom's] arguments have substantial
merit as a matter of policy.  Nominal
dollars and real dollars are not the
same, and late payment of devalued
nominal dollars does not have the same
effect as a timely payment.  There is no
question that Sandstrom is correct as a
matter of economics and as a matter of
logic.  None of this is relevant,
however, because the VA interpreted the
existing law correctly.

Sandstrom, supra, at 1379.

The Federal Circuit rejected Sandstrom's argument and held
that VA's decision to pay in nominal dollars was legally
correct.  Id. at 1381.  The Board finds that the instant case
falls squarely within the holding of the Federal Circuit in
Sandstrom.  Since Sandstrom was decided, neither statute nor
established case law has altered the Federal Circuit's
finding in Sandstrom, and so this argument remains without
merit, as the veteran's attorney should well know.
Accordingly, the Board finds that the veteran's past-due
benefits were correctly calculated in accordance with
38 U.S.C.A. � 1114(j), 38 C.F.R. � 3.21, and Sandstrom.  For
the reasons set forth above, the appeal is denied.

The Board notes that the standard for assisting claimants in
the processing of claims for VA benefits was changed,
effective November 9, 2000, with the signing into law of the
Veterans Claims Assistance Act of 2000 (VCAA) Pub. L. No.
106- 475, 114 Stat. 2096, (codified as amended at 38 U.S.C.A.
�� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)).
Because the law, and not the evidence, is dispositive of this
claim, application of the provisions of the VCAA would not be
helpful to the claimant.  No further assistance or
development in accordance with the VCAA is required in this
case.  Mason v. Principi, 16 Vet. App. 129 (2002).

ORDER

The claim that the manner of calculating past-due benefits
was incorrect is denied.

REMAND

The veteran's claim for service connection for "nervous
condition" was denied in a rating decision dated in May 1969
because the evidence of record showed that a nervous
condition existed at the time of entry into service, and
aggravation during service was not shown.  The decision was
not appealed, and thus is a final decision.  38 C.F.R. �
20.1103.

The veteran was denied service connection for a psychotic
condition, previously diagnosed as a nervous condition, in a
rating decision dated in March 1971 because the veteran's
recently diagnosed undifferentiated schizophrenia was
determined to be an extension of what had earlier been noted
in the veteran's service medical records (SMRs) as
nervousness, and for which service connection had previously
been denied.  The decision was not appealed, and is also a
final decision.  Id.

A December 1980 rating decision, which was confirmed in
January 1981, again denied service connection for
nervousness, this time claimed as due to exposure to Agent
Orange.  The decision was not appealed, and is also a final
decision.  Id.

As noted above, service connection for PTSD was granted in a
rating decision dated in June 1997.  The disability was rated
as 30 percent disabling, with an effective date of February
19, 1997, the date of receipt of the veteran's claim for
service connection for PTSD.  The veteran appealed the
effective date, claiming that VA had erred in its March 1971
and December 1980 decisions.  The principal argument was that
VA should have given the veteran a PTSD examination and
adjudicated its December 1980 decision based on PTSD rather
than on the "nervousness" he had claimed.  The RO
adjudicated this claim as one of Clear and Unmistakable Error
(CUE), finding in a rating decision dated in August 1997 that
VA had not committed CUE in either its March 1971 decision or
its December 1980 decision.  The Board, in a decision dated
in December 2000, found that the veteran's claims were claims
that the RO failed in its duty to assist the veteran.  Since
a breach of VA's duty to assist cannot, by law, form a basis
for a claim for CUE, the Board denied the appeal.  Caffey v.
Brown, 6 Vet. App. 377 (1994).

The veteran's appeal of the RO's finding of 30 percent
disability was dismissed by the Board in its December 2000
decision because the veteran had failed to file a timely
appeal.  The RO's June 1997 rating decision thus is a final
decision.  (An appeal of the December 2000 Board decision was
withdrawn in August 2001.)

The veteran subsequently filed a claim in August 2000 for an
increased rating for PTSD.  In an April 2002 rating decision
the veteran was granted a 100 percent evaluation.  The
effective date was February 19, 1997, the date of receipt of
the claim for service connection for PTSD, as established by
the June 1997 rating decision.  The RO noted that the
assignment of this effective date was made because it
considered that the 1997 claim was under appeal from the date
of the original claim.  The RO based this reasoning on the
Board's finding in its December 2000 decision that statements
made during the veteran's November 1997 hearing must be
construed as an informal claim for an increased disability
rating for PTSD.  (The Board notes in passing that the RO's
assumption was incorrect.  The Board, in its December 2000
decision, noted that the comments must be construed as an
informal claim for an increased rating, not as an appeal of
the June 1997 rating decision.  In fact, as noted, the June
1997 RO rating decision became a final decision when the
veteran failed to timely appeal, as the Board found in its
December 2000 dismissal of the appeal.)

The veteran's attorney submitted a NOD dated in February 2003
appealing the effective date of February 19, 1997, claiming
that the effective date should be the day following the
veteran's discharge from active duty, November 30, 1968.  The
argument is made that the June 1997 rating decision granting
service connection for PTSD was made possible by the
submission of new and material evidence (NME), which included
supplemental reports from the service department received
after the original 1969 decision became final.  The argument
is further made that, pursuant to 38 C.F.R. � 3.156(c) (new
and material evidence), the veteran is entitled to the
earlier effective date because these unnamed supplemental
service records verified the veteran's in-service stressors
to support a diagnosis of PTSD.

Since the April 2002 rating decision's assignment of an
effective date of February 19, 1997, was based on the June
1997 rating decision's assignment of the same date, and
because the veteran's attorney argues that this issue hinges
on the RO's alleged error in not applying the provisions of
38 C.F.R. � 3.156(c) in light of the receipt of supplemental
service records enabling the June 1997 decision, the Board
has determined that the issue is best characterized as a
claim of error in the June 1997 rating decision's assignment
of the February 19, 1997, effective date.  As noted above,
the June 1997 rating decision is a final decision.  Since the
June 1997 decision is a final decision, it may not be
revisited unless there is a showing of CUE.  38 U.S.C.A.
� 5109A (West 2002); 38 C.F.R. � 3.105(a) (2004).  Moreover,
the Board has already addressed in its 2000 decision the
claim of an earlier effective date for the award of service
connection for PTSD-which as noted above is the same date as
the award of the 100 percent rating.  Consequently, the
veteran's argument for an earlier date for the 100 percent
rating must be either that the Board erred in December 2000
in the assignment of the effective date of service
connection, or that there was CUE in the 1997 RO decision.
Because no motion to revise the Board decision has been
presented, the remaining viable argument is that the 1997 RO
decision was the result of CUE, which the representative
alludes to in his current appeal.  The Board will therefore
remand for readjudication on the basis of CUE.

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

1.  The veteran and his attorney
should be contacted and asked to
identify, with specificity, what the
alleged error is, and to give
persuasive argument as to why one
would be compelled to reach the
conclusion, to which reasonable
minds could not differ, that the
result of the June 1997 rating
decision would have been manifestly
different but for the alleged error.
Bustos v. West, 179 F.3d 1378, 1381
(Fed. Cir. 1999)

2.  The RO should consider the CUE
issue on appeal in light of all
information or evidence received.
If any benefit sought is not
granted, the veteran and his
representative should be furnished
with a supplemental statement of the
case and afforded an opportunity to
respond before the record is
returned to the Board for further
review.  The supplemental statement
of the case should specifically
refer to the law regarding
adjudication of CUE claims and an
explanation of how, upon a showing
of CUE, an earlier effective date
might be assigned.

After expiration of any applicable period allowed for
response, the case should be returned to the Board for
further appellate review, if in order.  By this remand, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is notified by
the RO.  The veteran has the right to submit additional
evidence and argument on the matter the Board has remanded to
the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case 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 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2005).

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

 Department of Veterans Affairs


judge_norm: MARY GALLAGHER

condition: heart

text:
Citation Nr: 0526000
Decision Date: 09/22/05    Archive Date: 10/05/05

DOCKET NO.  04-13 106	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been received to reopen
a previously denied claim of entitlement to service
connection for valvular heart disease, to include heart
murmur, and if so, whether service connection is warranted.

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

S. Yim, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1955 to
November 1958.

This case comes before the Board of Veterans' Appeals (Board)
on appeal of an August 2003 rating decision of the Reno,
Nevada, Regional Office (RO) of the Department of Veterans
Affairs (VA), which determined that no new and material
evidence was submitted to reopen a previously denied and
final claim of entitlement to service connection for valvular
heart disease.  Appeal to the Board was perfected.

In April 2005, the veteran testified in person before the
undersigned Veterans Law Judge of the Board, sitting in Las
Vegas, Nevada.  The hearing transcript is of record.

FINDINGS OF FACT

1.  In a May 1959 rating decision, the Lubbock, Texas, RO
denied an original claim of entitlement to service connection
for valvular heart disease.  The veteran was notified of this
decision and of appeal rights in May 1959, but did not appeal
the denial.

2.  In two letters sent to the veteran in September 1959 and
October 1962, the Los Angeles, California, RO advised the
veteran that the previously denied claim of entitlement to
service connection for valvular heart disease remains denied.
The veteran took no further action on the claim until April
2003, when he petitioned to reopen the same claim.

3.  Evidence submitted since October 1962, with regard to the
issue of entitlement to service connection for valvular heart
disease, is neither cumulative nor redundant of the evidence
of record at the time of the last prior final denial of the
claim; relates to an unestablished fact necessary to
substantiate the claim; and raises a reasonable possibility
of substantiating the claim.

CONCLUSIONS OF LAW

1.  The October 1962 RO confirmation of prior denial of
service connection for valvular heart disease is final.  38
U.S.C.A. � 7105 (West 2002); 38 C.F.R.
�� 20.200, 20.201, 20.202, 20.302 (2004).

2.  New and material evidence has been received since October
1962 with respect to the claim of entitlement to service
connection for valvular heart disease, and the claim is
reopened.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. �
3.156(a) (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Preliminary Matters - Duties to Notify and Assist

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), codified at 38
U.S.C.A. �� 5102, 5103, 5103A, 5107 (West 2002).  This law
eliminated the concept of a well-grounded claim, redefined
the obligations of VA with respect to the duty to assist, and
imposed on VA certain notice requirements.  Final regulations
implementing VCAA were published on August 29, 2001, and they
apply to most claims for benefits received by VA on or after
November 9, 2000, as well as any claim not decided as of that
date.  They are codified at 38 C.F.R. �� 3.102, 3.156(a),
3.159, and 3.326(a) (2004).

Without deciding whether VCAA notice and evidentiary
development requirements have been satisfied in this case on
the issue of whether new and material evidence has been
received to reopen a claim of entitlement to service
connection for valvular heart disease, it is the Board's
conclusion that VCAA does not preclude the Board from now
adjudicating this specific issue.  This is so because the
Board is taking action favorable to the veteran by reopening
the claim and granting the claim only to this extent, which,
at this point, poses no risk of prejudice to him.  See
generally Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  New and Material Evidence

Generally, a claim which has been denied in an unappealed
Board or RO decision cannot thereafter be reopened and
allowed.  38 U.S.C.A. �� 7104(b), 7105(c) (West 2002).  The
exception to this rule is found in 38 U.S.C.A. � 5108, which
provides that, if new and material evidence is presented or
secured with respect to a disallowed claim, then the
Secretary shall reopen and reconsider the claim.

The Board must address the issue of new and material evidence
in the first instance because the submittal of such evidence
is a prerequisite to the Board's jurisdiction to reach the
underlying claim and to adjudicate the claim de novo.  See
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g
8 Vet. App. 1 (1995).  Once the Board finds that no such
evidence has been offered, that is where the analysis must
end, and what the RO may have determined in this regard is
irrelevant.  Barnett, 83 F.3d at 1383.  Further analysis,
beyond the evaluation of whether the evidence submitted in
the effort to reopen is new and material, is neither required
nor permitted.  Id. at 1384.  Any finding entered when new
and material evidence has not been submitted is a "legal
nullity."  Butler v. Brown, 9 Vet. App. 167, 171 (1996)
(applying an identical analysis to claims previously and
finally denied, whether by the Board or the RO).  See also
Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (The Board
has a jurisdictional responsibility to consider whether it
was proper for a claim to be reopened, regardless of whether
the previous action denying the claim was appealed to the
Board.).

Evidence to be reviewed for sufficiency to reopen a
previously denied claim is evidence submitted since the most
recent final denial of the claim on any basis.   Evans v.
Brown, 9 Vet. App. 273 (1996).  Essentially, a denial is
final unless the veteran initiates further review by
expressing disagreement with the denial within one year after
the date of notice thereof.  38 U.S.C.A. � 7105(c) (West
2002); 38 C.F.R. �� 3.104(a), 20.302, 20.1103 (2004).

When a claim to reopen is presented, a two-step analysis is
performed.  The first step is a determination of whether
evidence presented or secured since the last final denial of
the claim is "new and material."  See 38 U.S.C.A. � 5108
(West 2002); Elkins v. West, 12 Vet. App. 209, 218-219 (1999)
(en banc); Hodge v. West, 155 F.3d 1356, 1359-1360 (Fed. Cir.
1998).  New and material evidence is evidence not previously
submitted to agency decision-makers; which is neither
cumulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened; which, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim; and which raises a
reasonable possibility of substantiating the claim.  38
C.F.R. � 3.156(a) (2004).  As for the second step, if VA
determines that the evidence is new and material, it may then
proceed to evaluate the merits of the claim based on the
entire record, after ensuring that the duty to assist has
been fulfilled.  In order for evidence to be sufficient to
reopen a previously denied and final claim, it must be both
new and material.  If the evidence is not material, the
inquiry ends and the claim cannot be reopened.  No other
standard than that articulated in the regulation applies to
the determination whether evidence is new and material.
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Also, evidence received since the last final disallowance of
the claim on any basis is presumed credible for purposes of
reopening the claim, unless it is inherently false or untrue
or, if a statement or other assertion, it is beyond the
competence of the person making the assertion.  See Duran v.
Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet.
App. 510 (1992); Robinette v. Brown, 8 Vet. App. 69 (1995).

The claim from which the instant appeal stems is that
received in April 2003.  Service connection for valvular
heart disease initially was denied in a May 1959 rating
decision issued by the Lubbock, Texas, RO.  The veteran was
notified of this decision and of appeal rights in May 1959.
He did not initiate appeal of this decision.  Subsequently,
the Los Angeles, California, RO notified the veteran of the
ongoing denial of service connection for valvular heart
disease via two letters dated in September 1959 and October
1962.  The claims folder reflects no further communication
from the veteran concerning his valvular heart disease claim
until April 2003, when he petitioned the Reno, Nevada, RO to
reopen the same claim.  After the RO denied the claim in
August 2003, the veteran perfected an appeal to the Board.

Based upon the above, with no initiation of appeal as to the
original denial or subsequence notice of continuing denial,
the October 1962 RO communication to the veteran essentially
confirming prior denial of the claim is the last final
denial.  It is the operative rating action for the purposes
of determining whether new and material evidence has been
submitted thereafter.

Evidence added to the record since October 1962 include
private medical records and VA outpatient treatment records
concerning treatment and testing for various ailments dated
within the last several years.  These records are new in the
sense that they were not of record as of October 1962.

In order to reopen a previously denied and final claim, the
evidence not only must be new, but also must be material.
The new evidence must, at the most basic level, present a
reasonable possibility of substantiating the claim.  On the
one hand, this does not present a particularly onerous
standard for the veteran.  However, the evidence must be
carefully reviewed to determine whether, even if new in the
sense that they document more contemporaneous treatment for
the claimed disorder, which appears to be the case here, it
is not cumulative or redundant or "old" evidence and
relates to an unestablished fact necessary to substantiate
the claim.

Here, the Board finds that the new evidence does rise to the
level of materiality consistent with the governing "new and
material evidence" standard.  In this connection, it is
probative that a key basis for denial of the original
valvular heart disease claim in 1959 was that then-
contemporaneous medical examination results, obtained shortly
after discharge from active duty (less than one year before,
within the one-year presumptive period - see 38 C.F.R. ��
3.307, 3.309) revealed inactive valvulitis.  See October 1958
service medical record documenting a diagnosis of rheumatic
valvulitis, inactive, with aortic valve deformity.  Thus, an
important concern in this case is whether new evidence is
contrary to prior basis for denial - lack of active, present
heart disease.  It is noted that current manifestation of an
active disease or disorder is a key criterion for service
connection.  38 C.F.R.
� 3.303 (2004).

The new records seem to indicate that the veteran does now
have some type of cardiovascular disease, or at least that
there is medical basis for the proposition that a current
cardiovascular disorder might be manifested.  See December
2000 VA medical record documenting the performance of an
echocardiogram and determination of, among other things,
diastolic dysfunction; October - November 2000 VA medical
records documenting a finding of heart murmur.  See also
older VA medical record (1993) documenting the performance of
what apparently was a cardiovascular stress test.

In light of the foregoing, the Board finds that new evidence
pertinent to the issue of service connection for valvular
heart disease has been added to the record.  These records
present evidence that rises to the level of materiality
consistent with the 38 C.F.R. � 3.156(a)(2004) standard to
permit reopening of the claim.

Having reopened the claim, the Board has reviewed the entire
record, including all old evidence, to determine whether it
presents sufficient evidentiary bases to permit a decision on
the merits of the reopened claim.  It does not.  Further
evidentiary development is warranted, and specific bases for
such development are discussed below, in the REMAND section
of this decision.

ORDER

New and material evidence sufficient to reopen the previously
denied and final claim of entitlement to service connection
for valvular heart disease having been received, the claim is
reopened.  The claim is granted only to this extent.

REMAND

Having reopened the previously denied and final claim of
entitlement to service connection for valvular hear disease
and having reviewed the entire record below, the Board finds
that additional evidentiary development in the form of a VA
compensation and pension medical (C&P) examination is
warranted, after obtaining any additional, relevant missing
records, before the reopened claim can be adjudicated on its
merits.  A remand would ensure that due process rights,
including those associated with VCAA duty to assist, are met.

The reopened claim is therefore REMANDED for the following
actions, after which the RO should undertake de novo review
of the claim:

1.  Inform the veteran that he should
provide VA with copies of any evidence -
lay or medical - relevant to the claim
that he has in his possession.  Or he
should identify any new source(s) of
records pertinent to the claim but not
currently reflected in the claims file.
Assist the veteran in obtaining any such
records consistent with VCAA.  Associate
any records obtained with the claims
folder.

2.  It is noted that the veteran reported
in April 2005 that he was treated for
"infection" sometime between 1975 and
1985 by a "Dr. Cobletz," a private
doctor in Nevada, who reportedly is
deceased.  Ask the veteran whether by
"infection" he means that he was
treated by this doctor for a
cardiovascular-related problem.  If so,
the Board is of the opinion that VA
should make a reasonable attempt to
obtain this doctor's records, even though
the Board acknowledges that records of
treatment decades ago might no longer be
available.  The veteran should be
notified that he is free to submit any
records of such treatment if he finds
that he has them while the case is on
remand status.

3.  In February 2005, the veteran
reported receiving treatment from Dr. R.
Colquitt (private doctor) for chest pain
and/or infection.  The record reflects
that an attempt was made to obtain this
doctor's records.  On remand, follow-up
action should be undertaken to obtain
these records.  Associate any such
records obtained with the claims file.

4.  After completing the above, and
obtaining as many of the missing records
as is reasonably possible consistent with
the above remand directives, schedule the
veteran for a VA C&P examination by a
medical doctor, preferably a
cardiologist, to examine the veteran and
then issue a written report addressing
the following:

The physician should (a) render a
specific diagnosis of what valvular heart
disease or other cardiovascular disease,
if any, the veteran currently has; and
(b) for each diagnosis, indicate whether
it is at least as likely as not (by a
probability of 50 percent), more likely
than not (by a probability greater than
50 percent), or less likely than not (by
a probability less than 50 percent) that
each such disorder is related to active
service, and more specifically, to the
heart murmur noted in service.

The veteran's claims folder, which should
include a complete copy of this remand
order and all service medical records,
should be made available to the examiner.

If the examiner is unable to opine on any
requested issue or question posed without
resorting to conjecture or speculation,
he/she should so state and explain the
reasons therefor.  The examiner also
should conduct or order diagnostic
testing as deemed warranted.

Associate with the claims folder the
examiner's written report, along with
reports of any diagnostic testing
conducted in connection with the
examination.

5.  Finally, the Board notes that private
medical treatment records apparently were
added to the claims file after the
issuance of the March 2004 Statement of
the Case.  These records appear to be
related to treatment unrelated to the
claim on appeal, but, on remand, the RO
should carefully review these new records
and they should be discussed, along with
other evidence of record, to the extent
warranted in a Supplemental Statement of
the Case if, after the completion of all
development directed in this remand
order, the RO determines, de novo, that a
favorable resolution of the claim is not
in order.  Give the veteran and his
representative, if any representation is
in effect while the case is on remand
status, an appropriate amount of time to
respond to it.  Thereafter, the claim
should be directed to the Board, if in
order.

The veteran is advised that a failure to report to a VA
medical examination, if scheduled, may result in the denial
of his claim unless good cause is shown.  38 C.F.R. � 3.655
(2004).

The purposes of this remand are to comply with due process
requirements and for further evidentiary development of the
claim.  At this juncture, the Board intimates no opinion,
either legal or factual, as to the ultimate disposition of
this case.

The veteran is not required to respond until he receives
further notice, but has the right to submit additional
evidence and argument on the matter(s) 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 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 The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, � 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C.
�� 5109B, 7112).

______________________________________________
	MARY GALLAGHER
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs