judge_norm: GARY L GICK

condition: eye

text: Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of bilateral inguinal and umbilical hernia repairs, claimed to have been incurred as a result of treatment on February 16, 1999, is denied.

text:
Citation Nr: 0517000
Decision Date: 06/22/05    Archive Date: 07/07/05

DOCKET NO.  03-27 723	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUE

Entitlement to compensation under the provisions of
38 U.S.C.A. � 1151 for residuals of bilateral inguinal and
umbilical hernia repairs, claimed to have been incurred as a
result of treatment on February 16, 1999.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from
January 1974 to April 1977.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2002 rating decision by the
Atlanta, Georgia, Regional Office (RO) of the Department of
Veterans Affairs (VA).  The case was remanded for additional
development in April 2004.

FINDINGS OF FACT

1.  VA has made all reasonable efforts to assist the veteran
in the development of his claim and has sufficiently notified
him of the information and evidence necessary to substantiate
this claim.

2.  An additional disability is not shown to have been
incurred as a result of bilateral inguinal and umbilical
hernia repairs nor is any present disability shown to have
been proximately due to VA carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on the part of VA in furnishing medical care nor was it an
event not reasonably foreseeable.

CONCLUSION OF LAW

Compensation for an additional disability as a residual of
bilateral inguinal and umbilical hernia repairs under
38 U.S.C.A. � 1151 is not established.  38 U.S.C.A. �� 1151,
5107 (West 2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) (codified at 38 U.S.C.A. � 5100 et seq.) became
law.  Regulations implementing the VCAA have been published.
38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2004).  The
VCAA and the implementing regulations apply in the instant
case.  A review of the record shows the veteran was notified
of the evidence not of record that was necessary to
substantiate his claim and of which parties were expected to
provide such evidence by correspondence dated in May 2001,
prior to the adjudication of his claim.  He was instructed to
provide any evidence in his possession pertaining to the
claim by correspondence dated in April 2004.

The VCAA duty to assist requires that VA make reasonable
efforts to assist the claimant in obtaining evidence
necessary to substantiate a claim.  See 38 C.F.R. � 3.159.
In this case, all identified and authorized medical records
relevant to the issue on appeal have been requested or
obtained.  Although the veteran's service representative has
requested the case be remanded to obtain evidence described
by the veteran in correspondence dated in October 2004, the
Board notes the veteran indicated he would himself submit a
copy of the results of a scheduled November 2004 magnetic
resonance imaging (MRI) study.  There is no evidence,
however, that the veteran actually attended this appointment
nor that any pertinent records of that MRI study presently
exist.

While there was no apparent response to the veteran's October
2004 request for a 60-day extension to submit this evidence,
he was notified on December 1, 2004, that he could submit
additional evidence to the Board within 90 days from the date
of that correspondence.  The record shows the veteran was
notified that he had more than the requested 60-day period to
provide evidence in support of his claim, but that he did not
submit the evidence as he indicated he would nor did he
subsequently request additional VA assistance in obtaining an
existing private medical report.  In light of the fact that
the veteran was specifically notified of the need to provide
any evidence in his possession pertaining to the claim and
apparently chose not to do so, the Board finds further
attempts to obtain additional evidence would be futile.

In claims for disability compensation the VCAA duty to assist
requires VA provide medical examinations or obtain medical
opinions when necessary for an adequate decision.  The Board
notes that specific medical opinions pertinent to the issue
on appeal were obtained in April 2004.  The Board finds the
available medical evidence is sufficient for an adequate
determination.  Therefore, the duty to assist and duty to
notify provisions of the VCAA have been fulfilled.

Factual Background

VA medical records show the veteran underwent bilateral
inguinal and umbilical hernia repairs on February 16, 1999.
Of record is an informed consent form signed by the veteran
on January 29, 1999, identifying the risks of the procedure
including death, disfiguring scar, brain damage, and
paralysis or partial paralysis.  An ambulatory surgery
program report noted the veteran was discharged to home in
good condition on February 17, 1999.  A February 19, 1999,
report noted he called and reported a three day  history of
nausea and vomiting.  A February 22, 1999, anesthesia report
noted the veteran stated his headache was much improved and
that he had no nausea or vomiting since the previous day.
The diagnosis was resolving post dural puncture headaches.

A March 1, 1999, general surgery report noted the veteran
complained of headaches and generalized weakness that was
improved.  An undated surgical clinic progress report noted
the veteran was seen for follow-up status post bilateral
inguinal hernia and umbilical hernia repairs and that he had
a postoperative "CSF" (cerebrospinal fluid) leak that was
now resolved.  The diagnosis was well-healed hernias.  An
April 26, 1999, report noted the veteran complained of daily
vomiting, sharp diffuse headaches at the temples, and left-
sided cramping pain.  He also reported a 10-year history of
occasional migraine headaches approximately once or twice per
month.  It was noted he had gained 30 pounds since his
surgery.  In September 1999, the veteran complained that
since his surgery he had experienced testicular pain,
erection problems, and incontinence.  Diagnoses of urinary
incontinence after bilateral inguinal hernia, right
epididymal cyst, and left varicocele were provided without
opinion as to etiology.

On October 4, 1999, the veteran complained of pain at the
site of his hernia repair and requested a cortisone shot for
the scar tissue.  It was noted that an upper gastrointestinal
series did not indicate any cause for his symptoms.  The
examiner noted the scars were well healed and that there were
no active surgical issues.  An October 25, 1999, report noted
he complained of pain to the right inguinal area, low back
pain, and occasional headaches.

A pulmonary clinic report noted that on December 6, 1999, the
veteran had complained of chronic low back pain and recurrent
headaches which had been present for years since he had a
"bad spinal tap."  The examiner stated that during the
evaluation he was not convinced that the veteran had a
significant problem and his physical examination revealed no
neurologic abnormalities other than a very mild decrease in
right leg strength compared to the left that could be old.
It was felt that his complaints could be due to arthritis of
the spine and noted that X-rays had been requested.

A December 7, 1999, neurology consultation request noted the
veteran complained of severe "spinal" headaches that
occurred since he had a "bad spinal tap."  It was noted he
had been seen that week because of headaches and some
discomfort in his right arm and leg, but that physical
examination did not reveal any obvious neurological problems
except for a very mild decrease in right leg strength
compared to the left which was probably not new.  The veteran
had reported he had problems with osteoarthritis in the past
and long-standing low back pain.  The examiner stated the
etiology of the symptoms was unclear, but they did not appear
to be acute.

A January 2000 outpatient clinic report noted the veteran
complained of a history of low back pain that started after
hernia surgery in February 1999.  He stated that scar tissue
was causing some pulling of the skin and muscles affecting
his right lumbar paravertebral muscles.  The examiner noted
healed surgical scars to the abdomen with no structural
abnormalities.  There was tenderness to palpation in the
right lumbar paravertebral muscle at the L3 and L4 level.
The diagnosis was myofascial pain syndrome.

A March 23, 2000, neurology clinic report noted the veteran
complained of severe right temporal/occipital headaches
lasting several days at a time as a result of a "bad
spinal" during hernia surgery in February 1999.  He reported
he had been given a shot of Marcaine in the back a few weeks
earlier and was presently "leaking spinal fluid."  The
examiner noted evaluation of the back revealed no appreciable
fluid leakage.  It was noted that no treatment was indicated
and that the veteran should be discharged from the neurology
service, but that MRI study with contrast may show
enhancement if he had a persistent CSF leak.

Private medical examination in November 2000 noted the
veteran presented for evaluation of chronic headaches which
he stated occurred following spinal anesthesia for treatment
of a triple hernia surgery.  It was noted that an
October 18, 2000, MRI scan of the brain was available for
review.  The diagnosis was chronic headaches of unclear
etiology.  The examiner stated the process did not appear to
represent a spinal headache based upon the absence of
positional exacerbation and that he was unaware of any
literature or research indicating these type of headaches as
persisting for more than one year.  He stated the veteran
"could actually be suffering from a chronic type of tension
headache and/or possible underlying sinus disease."

In his February 2001 claim the veteran asserted that events
related to his February 16, 1999, operation left him totally
disabled and unable to work or function normally.  He stated
his main disability was due to a permanent spinal headache,
also known as chronic headache syndrome.  He stated the
disorder had been diagnosed by VA physicians, Drs. J. Roman-
Rodriguez and J. C. Amon, but that he had been unable to get
the diagnosis or a statement as to cause in writing.  He
claimed the disorder existed because of a bad spinal
anesthesia procedure between the L2-L3 vertebrae that left a
hole in the spinal cord which could not be fixed by blood
patches or operation.  He stated he had requested VA provide
a MRI scan of the L2-L3 area, but that further diagnostics
had been refused.  He stated the operation also damaged his
testicle tubes leaving "vericles" and left him with
constant pain in the right side hernia from the pinching of
nerves pulling on his back.  He further asserted that the
operation had been improperly performed and that as result of
increased scar tissue pressing on his intestines he had a
dramatic increase in acid reflux occurrences and difficulty
keeping down a normal sized meal.

VA examination in April 2004 noted the veteran complained of
a history of chronic headaches, chronic back pain, and
residual discomfort related to previous hernia repairs.  A
past medical history was noted including gastroesophageal
reflux disease, history of peptic ulcer disease as a child,
chronic diarrhea, and iron deficiency anemia.  The examiner
noted the veteran was well developed, well nourished, and in
no apparent distress.  There was a four and a half inch long
by one inch wide scar to the right lower abdomen that was
atrophied, depressed, indurated, and slightly tender.  A two
inch long scar above the umbilicus was slightly
hyperpigmented.  The abdominal wall was soft with present
bowel sounds, but was not distended.  There was some mild
tenderness in the mid-epigastric area, but no
hepatosplenomegaly, rebound, guarding, ventral hernia, or
other masses.

During orthopedic examination the veteran complained of
chronic low back problems as a result of hernia surgeries.
He reported his belief that multiple surgeries to the soft
tissue structures caused low back problems and ongoing pain.
He stated he had chronic headaches and mid-back pain due to a
spinal shot.  The examiner noted there was full cervical,
thoracic, and lumbar motion.  Inspection of the spine
revealed no obvious sinus tracts, wounds, or flocculent
areas.  There was no evidence of flocculence, erythema, or
defect in the area of the previous spinal injection visually
or by palpation.  X-rays revealed L5-S1 degenerative disc
disease with loss of disc space height and severe facet
arthropathy in the lumbar spine.  The examiner found that
with a reasonable degree of medical certainty it could be
stated the veteran's lower lumbar arthritis and degenerative
disc disease was not related to his treatment for bilateral
inguinal or umbilical hernias.  It was noted that the work
done in that area was to the soft tissues and that the
veteran clearly had bony problems.

On general surgery examination the veteran complained of a
pulling sensation in his lower back and abdomen which he
attributed to a bilateral inguinal hernia repair in February
1999.  He also complained of headaches which he attributed to
the spinal anesthetic he received.  The examiner noted his
history was inconsistent and difficult to follow and that the
veteran contradicted himself during the interview.  Physical
examination revealed healed, nontender umbilical and
bilateral inguinal hernia incisions.  The examiner's
impression was status post bilateral inguinal and umbilical
hernia repairs with no evidence of recurrence.  It was noted
the main symptoms described were localized to the lower back
and were musculoskeletal in origin.

During neurology examination the veteran reported that prior
to his February 1999 surgery he had only occasional
headaches, approximately one to two per year, but that since
then he had unremitting severe pain that was only partially
relieved by treatment.  He stated there was no postural
component to the headaches, but that they were accompanied by
dizziness, nausea, and vomiting.  He also described
unremitting back pain since the operation.  The examiner
noted that an April 1999 treatment note indicated a 10-year
history of one to two migraine headaches per month.
Funduscopic examination revealed normal disc and vessels.
There was paraspinal tenderness with guarding to the right
lumbar region, but straight leg raise testing was negative.

The examiner's impression was that the veteran's headaches
were not consistent with spinal headaches and were unlikely
(less that 50 percent) a result of his hernia repair in
February 1999.  It was noted that accounts contemporaneous to
that procedure indicate the headache immediately following
surgery resolved without treatment and that the headache
pattern had worsened since then.  The headaches were noted to
be most consistent with chronic daily headaches secondary to
symptomatic medication overuse, including Tramadol and
caffeine which began around the time of the surgery.  The
examiner also stated that the veteran's back pain was most
likely musculoskeletal in nature and that since there were
reports of back pain in 1977 it was possible the pain existed
before the surgery.  It was noted that even if this were not
the case there was no mechanism that would have led from the
surgery or spinal anesthesia to this sort of back pain.  It
was the examiner's opinion that it was unlikely (less that 50
percent) his back pain was a result of his hernia repair in
February 1999.

Analysis

VA statutory law provides that compensation may be paid for a
qualifying additional disability or qualifying death, not the
result of the veteran's willful misconduct, caused by
hospital care, medical or surgical treatment, or examination
furnished the veteran when the proximate cause of the
disability or death was: (A) carelessness, negligence, lack
of proper skill, error in judgment, or similar instance of
fault on the part of VA in furnishing the hospital care,
medical or surgical treatment, or examination; or (B) an
event not reasonably foreseeable.  38 U.S.C.A. � 1151 (West
2002).

A recently enacted VA final rule provided regulations, in
essence, codifying the requirements for benefits under
38 U.S.C. 1151(a).  This change became effective September 2,
2004.  69 Fed. Reg. 46426 (Aug. 3, 2004) (including the
codification of 38 C.F.R. � 3.361 which applies to such
claims filed on or after October 1, 1997, and revising
38 C.F.R. � 3.358 to state that the section only applied to
claims filed before October 1, 1997).  A review of the record
reveals that the veteran submitted his initial claim for
compensation in February 2001.

Regulations now provide that benefits under 38 U.S.C.
1151(a), for claims received by VA on or after October 1,
1997, for additional disability or death due to hospital
care, medical or surgical treatment, examination, training
and rehabilitation services, or compensated work therapy
program, require actual causation not the result of
continuance or natural progress of a disease or injury for
which the care, treatment, or examination was furnished,
unless VA's failure to timely diagnose and properly treat the
disease or injury proximately caused the continuance or
natural progress.  The additional disability or death must
not have been due to the veteran's failure to follow medical
instructions.  38 C.F.R. � 3.361.

It must be shown that the hospital care, medical or surgical
treatment, or examination caused the veteran's additional
disability or death and that (i) VA failed to exercise the
degree of care that would be expected of a reasonable health
care provider or that (ii) VA furnished the hospital care,
medical or surgical treatment, or examination without the
veteran's or, in appropriate cases, the veteran's
representative's informed consent.  To establish the
proximate cause of an additional disability or death it must
be shown that there was carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on VA's part in furnishing hospital care, medical or surgical
treatment, or examination.  Whether the proximate cause of a
veteran's additional disability or death was an event not
reasonably foreseeable is in each claim to be determined
based on what a reasonable health care provider would have
foreseen.  The event need not be completely unforeseeable or
unimaginable but must be one that a reasonable health care
provider would not have considered to be an ordinary risk of
the treatment provided.  In determining whether an event was
reasonably foreseeable, VA will consider whether the risk of
that event was the type of risk that a reasonable health care
provider would have disclosed in connection with the informed
consent procedures of 38 C.F.R. � 17.32.  Id.

VA's General Counsel, in a precedent opinion, has held that
when a new regulation is issued while a claim is pending
before VA, unless clearly specified otherwise, VA must apply
the new provision to the claim from the effective date of the
change as long as the application would not produce
retroactive effects.  VAOPGCPREC 7-2003 (Nov. 19, 2003).  In
addition, the Board may consider regulations not considered
by the agency of original jurisdiction if the claimant is not
prejudiced by the Board's action in applying those
regulations in the first instance.  VAOPGCPREC 16-92 (Jul.
24, 1992); VAOPGCPREC 11-97 (Mar. 25, 1997).

Although the record in this case reveals the RO did not
consider 38 C.F.R. � 3.361 prior to the transfer of the case
for appellate review, the Board finds this new regulation
merely codified the existing statutory provisions of
38 U.S.C.A. � 1151.  The language of the new regulation is in
no way liberalizing and is not significantly different from
the standard considered in the re-adjudication of the
veteran's claim.  Therefore, the Board finds the veteran is
not prejudiced by this decision.  See VAOPGCPREC 16-92;
VAOPGCPREC 11-97; Bernard v. Brown, 4 Vet. App. 384 (1993).

The U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has 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).

The United States Court of Appeals for Veterans Claims
(Court) has held that where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence is required.  Grottveit v. Brown, 5 Vet. App. 91
(1993); see also Espiritu v. Derwinski, 2 Vet. App. 492
(1992).  The Court has also held that the Board must
determine how much weight is to be attached to each medical
opinion of record.  See Guerrieri v. Brown, 4 Vet. App. 467
(1993).  VA is free to favor one medical opinion over another
provided it offers an adequate basis for doing so.  See Owens
v. Brown, 7 Vet. App. 429 (1995).

Based upon the evidence of record, the Board finds
entitlement to compensation for an additional disability as a
result of bilateral inguinal and umbilical hernia repairs is
not warranted.  An October 4, 1999, VA treatment report noted
that an upper gastrointestinal series did not indicate any
cause for the veteran's symptoms and the examiner found there
were no active surgical issues.  The record shows the veteran
was adequately informed of the risks associated with the
February 1999 procedure and that he provided his consent.
There is no probative evidence demonstrating any present or
additional gastrointestinal or genitourinary disabilities
were incurred as a result of VA treatment.

The Board further finds that the April 2004 VA medical
opinions are persuasive that the veteran's headaches and low
back problems are not proximately due to his February 1999
surgery.  These opinion are also consistent with the November
2000 private medical examination provided by the veteran
indicating chronic headaches of unclear etiology that did not
appear to represent a spinal headache.  There is no probative
evidence demonstrating that any present or additional
headache or low back disability was the result of VA
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of VA in
furnishing medical care nor was any additional disability due
to an event not reasonably foreseeable.

Although the veteran believes he has residuals disabilities
because of bilateral inguinal and umbilical hernia repairs,
he is not a licensed medical practitioner and he is not
competent to offer opinions on questions of medical causation
or diagnosis.  Grottveit, 5 Vet. App. 91.  Therefore, the
veteran's claim for compensation under the provisions of
38 U.S.C.A. � 1151 must be denied.

When all the evidence is assembled VA is then responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim in which case the claim is denied.  Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the
evidence is against the veteran's claim.

ORDER

Entitlement to compensation under the provisions of
38 U.S.C.A. � 1151 for residuals of bilateral inguinal and
umbilical hernia repairs, claimed to have been incurred as a
result of treatment on February 16, 1999, is denied.

____________________________________________
	Gary L. Gick
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: KEITH W ALLEN

disposition: granted

text:
Citation Nr: 0518000
Decision Date: 07/01/05    Archive Date: 07/14/05

DOCKET NO.  02-07 044A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York

THE ISSUES

1.  Entitlement to service connection for post-traumatic
stress disorder (PTSD).

2.  Entitlement to service connection for heart disease,
claimed as secondary to PTSD.

REPRESENTATION

Appellant represented by:	Military Order of the Purple
Heart of the U.S.A.

ATTORNEY FOR THE BOARD

J. Fussell, Counsel

INTRODUCTION

The veteran had active service from September 1978 to August
1979.

This appeal to the Board of Veterans' Appeals (Board) arose
from a November 1999 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Buffalo, New York.

Unfortunately, further development of the evidence is needed
before the Board can decide the claim for service connection
for heart disease, allegedly secondary to PTSD.  So this
claim is being REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC.  VA will notify the veteran
if further action is required on her part concerning this
claim.  The Board, however, will immediately decide her claim
for PTSD.

FINDINGS OF FACT

1.  The evidence as a whole, including indications of
behavioral changes, confirms the veteran was assaulted while
in the military.

2.  There is probative medical evidence of record indicating
the veteran has PTSD from that assault in service.

CONCLUSION OF LAW

The veteran's PTSD was incurred in service.  38 U.S.C.A.
� 1131 (West 2002); 38 C.F.R. � 3.304(f) (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002), was signed into law on November
9, 2000.  Implementing regulations are codified at
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326 (2004).  The
VCAA requires that VA notify the veteran of the type of
evidence needed to substantiate her claim, including
apprising her of whose specific responsibility - hers or
VA's, it is for obtaining the supporting evidence.  The VCAA
also requires that VA give her an opportunity to submit any
relevant evidence in her possession, and that VA assist her
in obtaining evidence necessary to substantiate her claim,
but VA is not required to provide this assistance if there is
no reasonable possibility that it would aid in substantiating
the claim.  Charles v. Principi, 16 Vet. App. 370, 373-74
(2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87
(2002).

During this appeal, 38 C.F.R. � 3.304(f) was amended,
effective March 7, 2002, to preclude denying a claim for
service connection for PTSD based on an alleged personal
assault in service unless the veteran was first notified of
types of
non-service records that might corroborate such a stressor
and be given the opportunity to submit such evidence.  In
this case, such notice and opportunity were given to the
veteran.  In any event, the evidence that is available is
sufficient to grant her claim, so the duty to notify has no
bearing on the outcome of this claim.  Likewise, no further
development is required to comply with the VCAA or the
implementing regulations since this claim is being granted,
regardless, so any additional development - even if
requested - would be merely inconsequential.  See, e.g.,
Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004)
("Pelegrini II"); Mayfield v. Nicholson, No. 02-1077 (U.S.
Vet. App. April 14, 2005).  So the Board will proceed to
address the merits of this claim for PTSD.

However, discussion of whether there has been compliance with
the VCAA with respect to the claim for service connection for
heart disease, secondary to the PTSD, will be deferred until
completion of the development concerning that claim
on remand.

Governing Laws and Regulations

Service connection may be granted for current disability
resulting from an injury sustained or a disease contracted
while on active duty in the military.  38 U.S.C.A. � 1131; 38
C.F.R. � 3.303(a); see, too, Hickson v. West, 12 Vet. App.
247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999);
Rose v. West, 11 Vet. App. 169, 171 (1998); Watson v. Brown,
4 Vet. App. 309, 314 (1993).

Service connection may be granted, as well, for any disease
initially diagnosed after discharge from service when all of
the evidence, including that pertinent to service,
establishes the disease was incurred in service.  38 C.F.R.
� 3.303(d); see also Godfrey v. Brown, 7 Vet. App. 398, 406
(1995).

In determining whether service connection is warranted for a
disability alleged, VA is responsible for considering
evidence both for and against the claim.  If the evidence, as
a whole, supports the claim or is in relative equipoise
(i.e., about evenly balanced), then the veteran prevails.
Conversely, if the preponderance of the evidence is against
the claim, then it must be denied.  See 38 C.F.R. � 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49 (1990);
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

As indicated in 38 C.F.R. � 3.304(f), service connection for
PTSD, in particular, requires medical evidence diagnosing the
condition in accordance with 38 C.F.R. � 4.125(a) of this
chapter; 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.  Although service connection may be established
based on other in-service stressors, the following provisions
apply for specified in-service stressors as set forth below:

(3) If a PTSD claim is based on in-service
personal assault, evidence from sources other than
the veteran's service records may corroborate the
veteran's account of the stressor incident.
Examples of such evidence include, but are not
limited to:  records from law enforcement
authorities, rape crisis centers, mental health
counseling centers, hospitals, or physicians;
pregnancy tests or tests for sexually transmitted
diseases; and statements from family members,
roommates, fellow service members, or clergy.
Evidence of behavior changes following the claimed
assault is one type of relevant evidence that may
be found in these sources.  Examples of behavior
changes that may constitute credible evidence of
the stressor include, but are not limited to:  a
request for a transfer to another military duty
assignment; deterioration in work performance;
substance abuse; episodes of depression, panic
attacks, or anxiety without an identifiable cause;
or unexplained economic or social behavior
changes.  VA will not deny a PTSD claim that is
based on in-service personal assault without first
advising the claimant that evidence from sources
other than the veteran's service records or
evidence of behavior changes may constitute
credible supporting evidence of the stressor and
allowing him or her the opportunity to furnish
this type of evidence or advise VA of potential
sources of such evidence.  VA may submit any
evidence that it receives to an appropriate
medical or mental health professional for an
opinion as to whether it indicates that a personal
assault occurred.

Analysis

The veteran's military medical and personnel records do not
mention an assault, but she has steadfastly maintained that
she was sexually assaulted during service.  She also says
that, subsequently, when transferred to another military
post at her request because of that assault, her military
supervisor then sexually manipulated her.  She contends
that, following the assault, she sought treatment for a
variety of complaints and her performance of her duties
steadily declined, such that she eventually received an
early discharge.

The veteran's service medical records (SMRs) reveal that she
began having problems in about December 1978, so about 3
months after she started serving on active duty.  She had
what were described as a variety of somatic complaints, and
in particular she complained of chest pain.  She was
hospitalized several times from January to February 1979,
including at Walter Reed Army Hospital for chest pain.  But
after objective clinical evaluation and workup, doctors
concluded there was no organic basis for her complaint.

Other records from service, though, show the veteran
underwent individual counseling from January to June 1979.
A January 1979 report of this counseling indicates she was
having difficulty coping with stress from her home, family,
and money problems.  But the report also states she had
stress on her job due to coarse language of male
crewmembers.  She has stated this particular abuse was in
response to her having unofficially complained of having
been assaulted.

A May 1979 report of a mental status evaluation indicates
the veteran had a long history of somatic complaints,
primarily chest pain, and had a strong desire to be
discharged from the military.  It was believed she did not
have any bona fide psychiatric disease, and the impression
was that she was immature and had a dependent personality
and, therefore, should be separated from service because of
unsuitability.  She subsequently was discharged from the
military in August 1979.

The veteran has also stated that following military service
her personal life was in upheaval, including having abused
alcohol as a form of self-medication.  The earliest
evidence, after service, that she sought psychiatric
treatment is in 1999.

Lauri Fairbanks-Doane, D.O., reported in September 2004 that
she had treated the veteran in 1999 and the diagnoses were
PTSD, anxiety, and depression.  Dr. Fairbanks indicated
these psychiatric disorders were the direct result of the
abusive experiences the veteran had in service, including
multiple sexual abuses.

In August 2000 a friend of the veteran reported that the
veteran had related to her the incident of having been
sexually assaulted during service and the subsequent
problems this had caused in her personal life.  Another
acquaintance, who is a nurse, further corroborated this in
August 2000 - stating the veteran continued to have
numerous psychiatric problems, including distrust of others,
difficulty with intimacy, nightmares, alcohol abuse, and
flashbacks.

Yet another acquaintance stated in August 2000 that she had
helped the veteran seek treatment in Alcoholics Anonymous
and counseling at a rape crisis center.  But according to
her, the veteran still has nightmares.

In January 2001, a Clinical Social Worker (CSW) reported
having treated the veteran since November 1999.  The
relevant diagnoses were alcohol dependence (in remission),
dysthymic disorder, personality disorder, and PTSD.

Another CSW reported in January 2004 that the veteran had
symptoms of agitation, anxiety, and sleep disturbance from
nightmares due to life-threatening situations and betrayals.
Specifically listed was a rape attempt in service that
reportedly had completely altered her life.

Also on file is an April 2000 report of an extensive and in-
depth psychological evaluation by a private psychologist.
Several different psychological tests were administered.
The veteran reported having PTSD and depression due to being
sexually assaulted during service.  After service she had
been sexually molested by a chiropractor (although other
evidence on file suggests this may not have been an actual
molestation, but instead a flashback).  Reportedly, one of
the more viable diagnoses following psychological testing
was PTSD.  In summary, the testing clearly supported a
diagnosis of PTSD as a result of trauma she had experienced
during service.

It has been held that "[a]n opinion by a mental health
professional based on a
post-service examination of the veteran cannot be used to
establish the occurrence of the stressor."  See Cohen v.
Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet.
App. 389 (1996).  But in YR v. West, 11 Vet. App. 393 (1998),
the Court clarified these quoted categorical statements were
made in the context of discussing PTSD diagnoses other than
those arising from a personal assault.

Because VA has provided for special evidentiary-development
procedures, including interpretation of behavior changes by a
clinician and interpretation in relation to a medical
diagnosis, for personal-assault cases, the above categorical
statements in Cohen and Moreau, and other cases where they
may have been echoed, are not operative.  Moreover, the
existence of an in-service stressor does not have to be
proven by the "preponderance of the evidence" because this
would be inconsistent with the benefit of the doubt, or
equipoise, doctrine contained in 38 U.S.C. � 5107(b).  YR v.
West, 11 Vet. App. 393, 399 (1998).

The comments contained in the publication of the final
version of � 3.304(f) state, in part, that "... a
determination as to whether a stressor occurred is a factual
question that must be resolved by VA adjudicators.
Nonetheless, an opinion from an appropriate medical or
mental health professional could be helpful in making that
determination.  Such an opinion could corroborate the
claimant's account of the stressor incident.  In certain
cases, the opinion of such a professional could help
interpret the evidence so that the VA decisionmaker can
better understand it.  Opinions given by such professionals
are not binding upon VA, but instead are weighed along with
all the evidence provided."  67 Fed.Reg. 10330
(March 7, 2002) (publication of the final version of
38 C.F.R. � 3.304(f)(3)).

"In diagnosing PTSD, doctors typically rely on the
unverified stressor information provided by the patient.
Therefore, a doctor's recitation of a veteran-patient's
statements is no more probative than the veteran-patient's
statements made to VA.  [Consequently], VA is not required
to accept a doctor's diagnosis of PTSD due to a personal
assault as proof that the stressor occurred or that the PTSD
is service connected.  If, however, VA finds that a doctor's
diagnosis of PTSD due to a personal assault is ... 'competent
and credible' and there is no evidence to the contrary in
the record, in all likelihood, such an opinion would
constitute competent medical evidence."  67 Fed.Reg. 10330,
10330 - 31 (March 7, 2002) (publication of the final version
of 38 C.F.R. � 3.304(f)(3)).

Here, all the medical opinions on file are to the effect
that the veteran has PTSD due to a sexual assault in
service.  There is no countervailing, or contrary,
medical opinion suggesting otherwise.  So the dispositive
issue centers on the probative value of this evidence with
respect to the actual occurrence of the assault.

Given the veteran's rather sudden development of symptoms of
a psychiatric nature during service - albeit thought to
only be somatic complaints, the rapid decline in her
performance of her duties and responsibilities
contemporaneous to that, and, at a minimum, the verbal abuse
she complained of during service, as well as the consistency
of the history she has related since service, taken together
with further evidence of behavioral changes immediately
after service, in the form of alcohol abuse, the Board
concludes the evidence is in equipoise concerning whether
she was assaulted in service as alleged.  And she is given
the benefit of the doubt that she was.  38 C.F.R. � 3.102.

Accordingly, since there also is probative medical evidence
confirming the veteran currently has PTSD and, of equal or
even greater significance, that she acquired this
psychiatric condition as a result of the assault in service,
service connection for PTSD is warranted.  Boyer v. West,
210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking
disability benefits must establish . . . the existence of a
disability [and] a connection between the veteran's service
and the disability . . .").  Also found at Maggitt v. West,
202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209
F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West,
13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d
1304, 1308 (Fed. Cir. 1998).

ORDER

The claim for service connection for PTSD is granted.

REMAND

The veteran initially filed a claim for, in part, service
connection for a heart condition in 1979 - which at the time
she alleged was incurred during service.  The RO notified her
in February 1980 that her chest pains during service were
apparently acute and transitory, responded to treatment, and
therefore did not cause chronic residual disability.  No such
residuals were recorded in the report of her military
separation examination.  She also was told that no further
action would be taken unless she submitted evidence
confirming she now had residuals of heart disease that had
existed since her discharge from service.  See 38 C.F.R.
� 3.303(b) and Savage v. Gober, 10 Vet. App. 488, 495-498
(1997) (discussing what type of evidence is needed to prove
chronicity of disease or injury in service or continuity of
symptomatology after service).  The RO, however, did not
inform her of her appellate rights when notifying her of that
decision.  When a veteran does not receive timely notice
following a denial, the 1-year statutory period for timely
appealing a decision does not begin to accrue.  Rather, it is
tolled until she receives the requisite notice.  See Best v.
Brown, 10 Vet. App. 322, 325 (1997) (for a VA decision to
become final and binding on a veteran, she must first receive
written notification of the decision); see also Tablazon v.
Brown, 8 Vet. App. 359, 361 (1995), citing Hauck v. Brown, 6
Vet. App. 518 (1994) (where an appellant never received
proper notification of a decision denying her claim, the
usual one-year limit for timely appealing the decision does
not begin to accrue (i.e., "run")).  The written notification
also must explain the reasons and bases for the decision
and apprise the veteran of her procedural and appellate
rights, in the event she disagrees with the decision and
elects to appeal.  See 38 U.S.C.A. � 5104(a); 38 C.F.R. ��
3.103, 19.25.

When, though, the veteran did not respond to the RO's request
for this additional supporting information, the RO determined
under 38 C.F.R. � 3.158 that she had abandoned her claim.
"Furthermore, this regulation requires no further action by
the VARO until a new claim is received.  Once a claim has
been abandoned under 38 C.F.R. � 3.158, [VA] need not advise
a claimant of [her] appellate rights."  Hurd v. West, 13
Vet. App. 449, 452 (2000).

In her present appeal, the veteran is seeking service
connection for heart disease solely on the basis that it is
secondary to her now service-connected PTSD.  This is a new
claim, as it alleges a different basis of entitlement.  Cf.
Spencer v. Brown, 4 Vet. App. 283 (1993).  Although the
veteran complained of chest pain during service, and there is
some evidence that a murmur was detected while she was
on active duty in the military, the actual existence of heart
disease is not shown during service or within the one-year
presumptive period following her discharge.  38 U.S.C.A.
�� 1101, 1112, 1113, 1137; 38 C.F.R. �� 3.307, 3.309.

But in a claim, as here, for secondary service connection,
the actual presence of the disability during service (or even
within the presumptive period after service) is not required.
Rather, all that need be proven is that the veteran now has
the disability and that it is proximately due to or the
result of her just recently service-connected PTSD.  38
C.F.R. � 3.310(a).  Also, 38 U.S.C.A. � 1110 and 38 C.F.R.
� 3.310(a) permit secondary service connection if there is
probative medical evidence indicating the heart disease has
been chronically aggravated by the PTSD, but in this latter
situation compensation is limited to the degree of disability
(and only that degree) over and above the degree of
disability existing prior to the aggravation.  See Allen v.
Brown, 7 Vet. App. 439, 448 (1995).

There is evidence on file that the veteran, at some point in
time after she was discharged from the military, received
Worker's Compensation.  It is unclear, though, whether this
was in any manner related to her alleged heart disease.
So this matter must be clarified, and if heart disease indeed
played a role, then records pertaining to this award must be
obtained.  See Murincsak v. Derwinski, 2 Vet. App. 363
(1992).

A review of the claims file also suggests the veteran may
have received relevant VA treatment.  As VA has notice of the
possible existence of such records and their possible
relevance to this appeal, they must be obtained.  See Bell v.
Derwinski, 2 Vet. App. 611 (1992) and 38 C.F.R. � 3.159(c)(2)
(2004).

As well, records show the veteran may have sought or received
still additional treatment for heart disease from private
doctors - that is, since the most recent clinical evidence
in September 2004 that is on file.  So she should be given
the opportunity to ensure that all of her relevant private
clinical records have been obtained.

Besides this, a VA examination would help to clarify whether
the veteran now has heart disease and, if she does, its'
etiology.  38 U.S.C.A. � 5103A(d); 38 C.F.R. � 3.159(c)(4).

Accordingly, the claim for heart disease is remanded to the
RO (via the AMC) for the following development and
consideration:

1.  Contact the veteran and request that she
state whether she has received any treatment,
evaluation or hospitalization from VA since
service for heart disease.  If she has, request
that she provide the approximate dates of such
treatment and the names of the facilities where
she received the treatment.  Then obtain these
records.  If attempts to obtain them are
unsuccessful, notify the veteran in accordance
with the VCAA.

2.  Also ask the veteran to clarify whether all
of her relevant private clinical records are on
file.  And with respect to any such records that
are not on file, request that she complete and
return the appropriate releases (VA Form 21-
4142s) for the medical records of each private
care provider since military service.

Upon receipt of the appropriate releases, request
all private treatment records indicated, if any,
and associate all received with the file.  If any
request for private treatment records is
unsuccessful, notify the veteran appropriately.
38 U.S.C.A. � 5103A(b)(2) (West 2002); 38 C.F.R.
� 3.159(e) (2004).

*This should include, but is not limited to,
requesting that the veteran submit copies of all
relevant records in her possession that she has
not previously submitted.

3.  As well, request that the veteran provide all
identifying information concerning any Worker's
Compensation claims she has filed since her
discharge from the military in August 1979,
including the claim number or other identifying
information as well as all clinical sources
involved in treatment or evaluation relevant to
such claim.  Obtain any worker's compensation
decision and all associated records.

4.  Schedule the veteran for an appropriate VA
examination to obtain a medical opinion indicating
whether it is at least as likely as not (i.e., 50
percent or greater probability) that any heart
disease she currently has is proximately due to or
the result of her PTSD.  (Note:  this includes
indicating whether it is at least as likely as not
that her PTSD has chronically aggravated any
current heart disease, but only to the extent
above and beyond the level of impairment existing
prior to the aggravation.

Discuss the rationale of the opinion, whether
favorable or unfavorable.  If however, no opinion
can be rendered, please explain why this is not
possible.

It is absolutely imperative that the examiner has
access to and reviews the claims folder for the
veteran's pertinent medical history.

All necessary testing should be done and the
examiner should review the results of any testing
prior to completion of the examination report.  If
an examination form is used to guide the
examination, the submitted examination report
should include the questions to which answers are
provided.

5.  Review the claims file.  If any development is
incomplete, including if the examination report
does not contain sufficient information in
response to the questions posed, take corrective
action.  38 C.F.R. � 4.2 (2004); Stegall v. West,
11 Vet. App. 268 (1998).

6.  Then readjudicate the claim for service
connection for heart disease - secondary to the
PTSD - in light of any additional evidence
obtained.  If the benefit sought remains denied,
prepare a Supplemental Statement of the Case
(SSOC) and send it to the veteran and her
representative.  Give them time to respond.

Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate.  The veteran need take no
further action until he is further informed.  No inference
should be drawn regarding the final disposition of the claim
as a result of this action.  She has the right to submit
additional evidence and argument concerning the claim 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).

______________________________________________
	Keith W. Allen
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: K OSBORNE

disposition: denied

text:
Citation Nr: 0519000
Decision Date: 07/13/05    Archive Date: 07/20/05

DOCKET NO.  02-01 657	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a disability rating in excess of 20 percent
for residuals of a right ankle fracture, to include
degenerative joint disease.

REPRESENTATION

Appellant represented by:	New Jersey Department of
Military and Veterans' Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Rebecca Feinberg, Associate Counsel
INTRODUCTION

The veteran served on active duty from November 1939 to
August 1945.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an August 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey.

In February 2003, the veteran testified before the
undersigned Acting Veterans Law Judge at the RO.  A
transcript of the hearing is associated with the claims file.

FINDING OF FACT

The service-connected right ankle disability results in
marked limitation of motion with pain and complaints of
instability.

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent have not
been met for the service-connected residuals of a right ankle
fracture.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �
4.71a, Diagnostic Code 5003, 5010, 5262, 5271 (2004).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

A VCAA notice letter consistent with 38 U.S.C. � 5103(a) and
38 C.F.R. � 3.159(b) must:  (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim.  See Pelegrini v. Principi, 18
Vet. App. 112 (2004).

The veteran has been provided with a copy of the appealed
August 2001 and July 2002 rating decisions, December 2001
statement of the case (SOC), and July 2002 and March 2005
supplemental statements of the case (SSOCs) that discussed
the pertinent evidence, and the laws and regulations related
to a claim for an increased rating.  Moreover, these
documents essentially notified him of the evidence needed by
the veteran to prevail on his claim.

In addition, in February 2002, and May and August 2004
letters, the RO notified the veteran of the evidence needed
to substantiate his claim, and offered to assist him in
obtaining any relevant evidence.  These letters gave notice
of what evidence the appellant needed to submit and what
evidence VA would try to obtain.  The veteran was also
invited to submit "any" additional information to the RO.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002);
Pelegrini, supra.

In light of the foregoing, the Board finds that the rating
decision, SOC, SSOCs, and notice letters dated in February
2002, and May and August 2004 complied with the specific
requirements of Quartuccio (identifying evidence to
substantiate the claims, the relative duties of VA and the
claimant to obtain evidence, and affording him an opportunity
to submit all pertinent evidence pertaining to his claims
that he might have); and Charles v. Principi, 16 Vet.
App. 370 (2002) (identifying the document that satisfies VCAA
notice).

The Court's decision in Pelegrini, supra, held in part that a
VCAA notice, as required by 38 U.S.C.A. � 5103(a), should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits.  In the present case, regarding the current issue
on appeal, a substantially complete application was received
in February 2001.  Thereafter, The RO issued rating decisions
in August 2001 and July 2002.  In February 2002, and May and
August 2004, the RO provided notice to the veteran regarding
what information and evidence is needed to substantiate his
claim on appeal, as well as what information and evidence
must be submitted by the veteran, what information and
evidence will be obtained by VA, and the need for the veteran
to submit pertinent evidence pertaining to his claim, after
initial AOJ adjudication of his claim.

The Board observes that the claimant has been provided with
every opportunity to submit evidence and argument in support
of his claim, and to respond to VA notices.  Therefore,
notwithstanding Pelegrini, to decide the appeal would not be
prejudicial error to the veteran.  In this regard, throughout
this appeal process, VA has made reasonable efforts to obtain
relevant records adequately identified by the veteran.
Specifically, VA has associated with the claims folder all of
the veteran's current VA outpatient treatment records and
afforded him two VA examinations, the reports of which are
associated with the claims file.  The veteran was also
afforded a Board hearing in February 2003.  The veteran has
not identified any additional evidence pertinent to his
claim, not already of record, and there are no additional
records to obtain.  Moreover, as noted above, the veteran has
been informed of the type of evidence necessary to
substantiate his claim, as well as the respective
responsibilities of himself and VA as it pertains to his
claim.  Therefore, the Board finds that any error in the
timing of the veteran's notification of the VCAA constituted
harmless error.

Given the foregoing, the Board concludes that VA has
satisfied the notice and assistance provisions as found in
the VCAA.  Consequently, an adjudication of the appeal at
this juncture is proper.  Certainly, no useful purpose would
be served in remanding this matter for yet more development.
Such a remand would result in unnecessarily imposing
additional burdens on VA, with no additional benefit flowing
to the veteran.  The Court of Appeals for Veterans Claims has
held that such remands are to be avoided.  See Winters v.
West, 12 Vet. App. 203 (1999) (en banc), vacated on other
grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir.
2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  In fact, the
Court has stated, "The VCAA is a reason to remand many, many
claims, but it is not an excuse to remand all claims."
Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc).

II.  Factual Background

December 2000 and February 2001 VA outpatient records show
the veteran had seen an orthopedist for right ankle pain
where he had nonunion of the right foot after trauma.  The
orthopedist recommended a molded ankle/foot orthosis brace.
He was given shoes.  The veteran was evaluated for
instability, which was improved with the use of the brace.
He had a varus positioning of the right calcaneal region and
needed orthopedic shoes and knee high support hose.  X-rays
showed degenerative joint disease.  Examination showed
swelling of the lateral right malleolar with varus
positioning of the heel and calcaneus.  He was previously
told he had a nonunion.  Currently he had pain medially and
posteriorly.  The veteran had 10 degrees of dorsiflexion and
30 degrees of plantar flexion, which was not painful.  The
assessment was right ankle instability, controlled with a
brace, and degenerative joint disease.

In March 2001, the veteran underwent VA examination.  He
could walk approximately one block at a time at a slow pace
with a limp.  He used a plastic brace for support around the
ankle to help stabilize the ankle.  He stated that the ankle
was unstable without the brace.  He used Advil to help manage
the pain.  Physical examination demonstrated moderate to
severe swelling of the right ankle.  Plantar flexion was from
0 to 20 degrees.  Dorsiflexion was from 0 to 10 degrees with
mild laxity of the right ankle joint.  There was tenderness
around the right ankle joint.  The diagnostic impression was
moderate to severe degenerative joint disease of the right
ankle, confirmed by x-ray.  The veteran clearly demonstrated
a moderate degree of fatigability and mild instability of the
right ankle.  He was prone for progression of his symptoms.

An October 2001 VA clinical record shows the veteran
complained of continuous right ankle pain.  Lately it was
worse and with every step.  He had pain on both sides of the
right ankle with difficulty going up and down steps.  There
was chronic swelling of both malleoli, right with tenderness
on pressure.  There was no warmth or redness.  There was pain
on range of motion of the ankle, which was half of what was
normal.

In February 2003, the veteran testified before the
undersigned at the RO.  The veteran testified that he walked
with a cane, which he used due to his service-connected right
ankle disability.  He reported that he also wore a brace on
his right ankle.  He related that his right ankle was sore
all the time, especially with stairs.  He stated that he had
constant swelling of the ankle.  He related that with the
brace on, he did not have much give up or down in his range
of motion.  Without the brace, he had more movement, but
stated that it hurt much more when he stepped on it.  The
brace also stabilized the ankle and kept the veteran from
turning it or losing his balance.

The veteran testified that the examining physician grabbed
his foot and bent it up and down telling him that he had more
range of motion.  He did not have the range of motion when he
walked because he wore the brace.  Only if the veteran walked
on uneven ground did his ankle have a tendency to go over.
It turned if he did not have the brace on.  He was able to
walk 50 feet before he had to stop.  His ankle would tire.

In September 2004, the veteran underwent VA examination.  He
had chronic pain in the right ankle region.  He described
deep achy pain with stiffness and instability.  The veteran
used a cane and a brace to stabilize the right ankle.  He
could walk 50 to 75 feet at a time.  He had particular
difficulty with steps.  He took Tylenol and other over-the-
counter medications for the pain.  He did not have flares, as
he had constant pain.

On examination, there was severe swelling of the right ankle.
Plantar flexion was from 0 to 10 degrees, and dorsiflexion
was from 0 to 15 degrees.  There was instability of the
talofibular ligament on the right side of a moderate
severity.  The impression was a history of clear degenerative
joint disease of the ankle by x-rays.  There was a moderate
to severe reduction in endurance.

III.  Analysis

Disability ratings are based upon schedular requirements that
reflect the average impairment of earning capacity occasioned
by the state of a disorder.  38 U.S.C.A. � 1155.  Separate
rating codes identify the various disabilities.  38 C.F.R.
Part 4 (2004).  In determining the level of impairment, the
disability must be considered in the context of the entire
recorded history, including service medical records.  38
C.F.R. � 4.2 (2004).  An evaluation of the level of
disability present must also include consideration of the
functional impairment of the veteran's ability to engage in
ordinary activities, including employment.  38 C.F.R. � 4.10
(2004).  Also, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating.  Otherwise, the lower
rating will be assigned.  38 C.F.R. � 4.7 (2004).

The veteran is currently assigned a 20 percent rating under
the criteria of 38 C.F.R. � 4.71a, Diagnostic Code (DC) 5010-
5262 (2004).

Under DC 5010, arthritis, due to trauma, substantiated by x-
ray findings, is to be rated as arthritis degenerative.

Under DC 5003, arthritis, degenerative (hypertrophis or
osteoarthritis) established by x-ray findings will be rated
on the basis of limitation of motion under the appropriate
diagnostic codes for the specific join or joints involved (DC
5200 etc.).  When however, the limitation of motion of the
specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is for
application for each such major joint or group of minor
joints affected by limitation of motion, to be combined, not
added under diagnostic code 5003.  Limitation of motion must
be objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion.  In the
absence of limitation of motion, rate as below:  With x-ray
evidence of involvement of 2 or more major joints or 2 or
more minor joint groups, with occasional incapacitating
exacerbations, a 20 percent rating is assigned.  With x-ray
evidence of involvement of 2 or more major joints or 2 or
more minor joint groups, a 10 percent rating is assigned.
Note 1 indicates that the 20 percent and 10 percent ratings
based on x-ray findings above, will not be combined with
ratings based on limitation of motion.  Note 2 states that
the 20 percent and 10 percent ratings based on x-ray
findings, above, will not be utilized in rating conditions
listed under diagnostic codes 5013 to 5024, inclusive.
38 C.F.R. � 4.71a, DC 5003 (2004).

In the veteran's case, DC 5003 refers to 38 C.F.R. � 4.71a,
DC 5271 (2004), which provides rating criteria for limited
motion of the ankle.  Moderate limitation of motion warrants
a 10 percent rating, and marked limitation of motion warrants
a 20 percent rating.  Id.  Here, the Board notes that the
veteran's right ankle is already assessed as 20 percent
disabling, the maximum allowed under DC 5271.  Therefore, his
right ankle disability does not warrant an increase under
this code.

The Board notes that 38 C.F.R. �� 4.40 and 4.45 (2003) and
DeLuca v. Brown, 8 Vet. App. 202 (1995), require us to
consider the veteran's pain, swelling, weakness, and excess
fatigability when determining the appropriate disability
evaluation for a disability using the limitation-of-motion
diagnostic codes.  Within this context, a finding of
functional loss due to pain must be supported by adequate
pathology, and evidenced by the visible behavior of the
claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).
However, under Spurgeon v. Brown, 10 Vet. App. 194 (1997),
the Board is not required to assign a separate rating for
pain.  With respect to the requirements of DeLuca, supra, the
Board notes that the veteran already receives the maximum
schedular rating for range of motion of the ankle.  See
Diagnostic Code 5271.  Therefore, application of DeLuca, if
it was required, will not increase the veteran's assigned
disability rating.

Under 38 C.F.R. � 4.71a, DC 5262 (2004), which rates
impairment of the tibia and fibula, malunion warrants a 10
percent disability rating with slight knee or ankle
disability, a 20 percent disability rating with moderate knee
or ankle disabling, and a 30 percent disability rating with
marked knee or ankle disability.  A 40 percent rating is
warranted for nonunion of the tibia and fibula with loose
motion, requiring a brace.  Id.  Under DC 5262, the veteran's
right ankle disability also does not warrant an increased
rating.  In this respect, there is no evidence of any
malunion or nonunion of the tibia or fibula.  .

The Board has also considered all other potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or
not they have been raised by the veteran, as required by
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  After a
careful review of the available diagnostic codes and the
medical evidence of record, the Board finds that diagnostic
codes other than Diagnostic Code 5262 do not provide a basis
to assign an evaluation higher than the 20 percent rating the
veteran receives.  Specifically, the veteran has never been
diagnosed with ankylosis of the ankle and his disability is
not analogous to ankylosis in plantar flexion between 30 to
40 degrees or in dorsiflexion between 0 to 10 degrees.  Thus,
the next higher 30 percent rating under DC 5270, ankle
ankylosis, is not warranted.

In sum, the evidence shows that the veteran's right ankle
disability is manifested by at most marked limitation of
motion, which warrants a 20 percent rating.  While the
veteran complains of instability of the right ankle, there is
no applicable diagnostic code which allows for a higher
rating based on ankle instability.  Thus, the Board finds
that the preponderance of the evidence is against the claim
for a rating in excess of 20 percent for the service-
connected right ankle disability.  In making this
determination, the Board has considered the benefit-of-the
doubt doctrine but finds that it is inapplicable.  38
U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).

ORDER

A disability rating in excess of 20 percent for residuals of
a right ankle fracture, to include degenerative joint
disease, is denied.

____________________________________________
	K. OSBORNE
	Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: MARK F HALSEY

condition: psychiatric

text:
Citation Nr: 0521000
Decision Date: 08/03/05    Archive Date: 08/17/05

DOCKET NO.  02-07 748	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California

THE ISSUE

Entitlement to service connection for an acquired psychiatric
disability.

REPRESENTATION

Appellant represented by:	California Department of
Veterans Affairs

ATTORNEY FOR THE BOARD

Carole R. Kammel, Counsel

INTRODUCTION

The veteran served on active duty from October 1956 to July
1957.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California, wherein the RO denied the veteran's
application to reopen a previously denied claim of
entitlement to service connection for a psychiatric
disability.

In a March 2003 decision, the Board found that new and
material evidence had been received to reopen the claim for
service connection for an acquired psychiatric disability and
took additional development with respect to the claim.  In
August 2003, the Board remanded the veteran's claim to the RO
for additional development to include, but not limited to, a
VA examination.

FINDINGS OF FACT

1.  The veteran's September 1956 pre-enlistment examination
did not note any psychiatric disorder.

2.  The veteran was diagnosed with a personality disorder,
described as passive-aggressive reaction (with paranoid
trends) during service.

3.  The veteran does not have an acquired psychiatric
disorder attributable to military service.

CONCLUSION OF LAW

The veteran does not have an acquired psychiatric disorder
that is the result of disease or injury incurred in or
aggravated by active military service.  38 U.S.C.A. �� 1101,
1111, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. ��
3.303, 3.307, 3.309 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's service medical records contain his September
1956 pre-enlistment examination report, which was negative
for any psychiatric problems.  Upon psychiatric evaluation,
the veteran was found to have been "normal."  In May 1957,
the veteran was evaluated prior to court-martial proceedings.
It was noted that the veteran was admitted to the sick list
with a diagnosis of passive-aggressive reaction on the
recommendation of the staff psychiatrist who had previously
seen the veteran.  The veteran had been referred to the
hospital for evaluation prior to his trial by court martial
for a long series of offenses.  A detailed history of the
veteran's behavior in service as well as his personal and
family history prior to entering service was provided.  After
a period of observation, it was concluded that the veteran
suffered from a severe personality disorder best described as
a passive-aggressive reaction (with paranoid trends) and that
this disability had been of long duration, but that it had
not been aggravated by service conditions.  A June 1957
separation examination report reflects that the veteran was
found to have passive aggressive reaction, but no disability
was considered disqualifying.

Post-service private and VA clinical and examination reports
contain findings, including a January 1994 assessment of
anxiety; a January 1994 assessment of questionable impotence
vs. questionable psychological problems regarding ejection; a
June 1994 diagnosis of major depression; a July 1994
diagnosis of major depression with schizophrenic features,
paranoid; an August 1994 notation of best diagnosis of
adjustment reaction to current stress.  A September 1994
Social Security Disability determination reflects that the
veteran was awarded disability benefits as a result of
depression, a May 1995 diagnosis of bipolar disorder, and a
March 1996 diagnosis of mixed bipolar disorder with
incongruent psychotic features.  Additionally, an April 2001
letter from the veteran's psychologist, R. H. M., Psy.D.,
reflects that it was more likely as not that the veteran's
"psychiatric condition" exited prior to his military
service, and that his difficulties would have to have been
aggravated or exacerbated by the close social contact of
military service with his unit and the military structure.
It was the opinion of Dr. M. that the veteran's passive
aggressive nature was intensified by service.  Overall, Dr.
M. concluded that the veteran had clear and unequivocal
situations from his military service (which would not
necessarily have affected a person without the predisposing
character problems) that would certainly have been responded
to negatively by an individual with his background,
perceptions, and dearth of coping skills.

Pursuant to an August 2003 Board remand, the veteran was
examined by VA in February 2005.  At that time, the examiner
indicated that he had reviewed the veteran's entire claims
file, to include the service medical records and the April
2001 report of R. H. M., Psy.D..  After a mental status
evaluation of the veteran, the VA examiner entered diagnoses
of moderately severe bipolar disorder and paranoid
personality disorder with passive aggressive features.  The
VA examiner concluded that the veteran suffered from a severe
personality disorder, which had clouded the ability of
various clinicians to accurately diagnose his situation.  The
examiner indicated that the veteran had a severe paranoid
personality disorder, which was a preexisting condition and
which had predisposed his responses to military situations.
In this regard, the VA examiner related that when the veteran
was faced with military discipline, he reacted by running
away and acting out behaviorally in an attempt to gain his
end.  Thus, it was the VA examiner's opinion that the veteran
had a preexisting personality disorder which was not
permanently aggravated by military service.  The VA examiner
further opined that the veteran used his symptoms of
personality disorder to manipulate situations such as his
service, occupational history, as well as Social Security
disability and VA benefits.  The examiner determined that it
was extremely unlikely that the veteran's long history of
personality problems could be traced back to his military
service experiences.  The examiner indicated that the
difficulties the veteran experienced in service were an
artifact of his personality disorder interfacing with
military discipline.

In order to establish service connection for a claimed
disability, the facts, as shown by evidence, must demonstrate
that a particular disease or injury resulting in a current
disability was incurred during active service or, if
preexisting active service, was aggravated therein.  38
U.S.C.A. � 1131 (West 2002); 38 C.F.R. � 3.303(a) (2004).
Service connection may be granted for any disease diagnosed
after discharge when all of the evidence establishes that the
disease was incurred in service.  To establish a showing of
chronic disease in service, there is required a combination
of manifestations sufficient to identify the disease entity,
and sufficient observation to establish chronicity at the
time.  If chronicity in service is not established, a showing
of continuity of symptoms after discharge is required to
support the claim.  38 C.F.R. � 3.303 (2004).  When chronic
disability, such as a psychosis, is manifested to a
compensable degree within one year of separation from
qualifying service, the disability will be presumed to have
been incurred in or aggravated by active military service.
38 C.F.R. �� 3.307, 3.309.

A veteran is presumed in sound condition except for defects
noted when examined and accepted for service.  Clear and
unmistakable evidence that the disability existed prior to
service and was not aggravated by service will rebut the
presumption of soundness.  38 U.S.C.A. � 1111 (West 2002);
VAOPGCPREC 3-2003.  A pre-existing disease will be considered
to have been aggravated by active service where there is an
increase in disability during service, unless there is a
specific finding that the increase in disability is due to
the natural progression of the disease.  38 U.S.C.A. � 1153
(West 2002); 38 C.F.R. � 3.306 (2004).

In VAOGCPREC 3-2003, VA General Counsel held that the
presumption of soundness is rebutted only where clear and
unmistakable evidence shows that the condition existed prior
to service and where clear and unmistakable evidence shows
that it was not aggravated by service.  The General Counsel
concluded that 38 U.S.C.A. � 1111 requires VA to bear the
burden of showing the absence of aggravation in order to
rebut the presumption of sound condition.

Personality disorders are not diseases or injuries for VA
compensation purposes, and disability resulting from them may
not be service connected, except where caused or aggravated
by service-connected disability.  38 C.F.R. �� 3.303,
3.310(a), 4.127 (2004).

It is clear from the evidence that the veteran suffers from
an acquired psychiatric disorder, but the evidence is equally
clear that that disorder did not have its origins either
before or during military service.

At that outset, the Board notes that a psychiatric disability
was not "noted" on the veteran's pre-enlistment examination
in September 1956.  38 U.S.C.A. � 1111.  Consequently, the
veteran is presumed to have been in sound condition at entry,
at least as far as a psychiatric disability is concerned.
Furthermore, it is clear that no psychiatric disorder was
documented in the veteran's service medical records other
than a personality disorder.  The in-service notations show
that the personality disorder was best described as passive-
aggressive reaction (with paranoid trends).  In this case,
both service medical personnel and the VA examiner in
February 2005 concluded that the only chronic problem
experienced by the veteran during service was a personality
disorder.  While R. H. M., Psy.D., the veteran's
psychologist, has opined that the appellant had a
"psychiatric condition" prior to service which was
aggravated by the close social contact of military service,
he did not provide a diagnosis of the exact "psychiatric
condition" nor did he review the claims file in support of
his opinion.  In addition, Dr. M. did not provide any
rationale for his opinion nor did he bolster it with specific
references from the veteran's service medical records.  In
fact, it appears that the "condition" to which Dr. M.
referred was the personality disorder noted in service.

In contrast, the February 2005 VA examiner opined, after an
entire review of the claims file to specifically include the
April 2001 opinion of R. H. M., Psy.D. and the service
medical records, that the only problem during service was a
personality disorder.  The examiner buttressed his opinion
with specific references to the service medical records.  In
this regard, the VA examiner opined that when the veteran was
faced with military discipline, he reacted by running away
and acting out behaviorally in attempt to gain his end, which
was to be discharged from service.  Accordingly, the Board
finds that the greater weight of the evidence supports the
conclusions of the service medical personnel and the VA
examiner in February 2005 that the only problem experienced
by the veteran during service was a personality disorder.
However, the Board notes, and as stated above, a personality
disorder is not an injury or disease that is cognizable
within the meaning of VA legislation or for VA compensation
purposes.  38 C.F.R. �� 3.303, 4.127 (2004). Thus, a
personality disorder is not a disability warranting service
connection under VA applicable law. 38 C.F.R. � 3.303(c)
(2004).  In light of the foregoing, based on assessment of
all the evidence of record, the Board concludes that the
veteran's personality disorder is not a compensable disease
or injury for VA purposes.

In addition, regarding the post-service diagnoses of bipolar
disorder and major depression, the Board notes that these
psychiatric diagnoses are also not attributable to the
veteran's military service.  In this regard, there is no
competent medical evidence showing that psychiatric
disability other than a personality disorder is attributable
to the veteran's period of military service.  As noted above,
even Dr. M. indicated that it was the veteran's "passive
aggressive nature" that was intensified by the veteran's
military service, strongly suggesting that it was a
personality disorder to which Dr. M. referred when he
concluded that the veteran's difficulties would have to have
been aggravated or exacerbated by military structure.  In
other words, the greater weight of the evidence indicates
that a psychiatric disability other than a personality
disorder was not demonstrated until well after military
service and has not been attributed to the veteran's military
service by competent medical authority.  Additionally, a
psychosis was not shown within a year of the veteran's
separation.  38 C.F.R. �� 3.307, 3.309.

In light of the foregoing, the Board concludes that the
totality of the medical evidence of record does not show that
the appellant has a chronic acquired psychiatric disability
that is attributable to military service.  Specifically, the
Board notes that the appellant's diagnosed personality
disorder is not a disability warranting service connection
under VA applicable law.  38 C.F.R. � 3.303(c) (2004). In
addition, there is no competent evidence of record showing
that any acquired psychiatric disorder is traceable to the
veteran's period of military service.

In adjudicating the appellant's claim, the Board has
considered the applicability of the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(VCAA) (codified as amended at 38 U.S.C.A. �� 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002)).  The Board has
considered the final regulations that VA issued to implement
these statutory changes.  See Duty to Assist, 66 Fed. Reg.
45,620-32 (Aug. 29, 2001) (codified as amended at 38 C.F.R ��
3.102, 3.156(a), 3.159 and 3.326(a)).  These regulations
apply to any claim for benefits received by VA on or after
November 9, 2000, as well as to any claim filed before that
date but not decided by the VA as of that date.  A discussion
of the pertinent VCAA and regulatory provisions follows.

The VCAA, among other things, modified VA's duties to notify
and assist claimants by amending 38 U.S.C.A. � 5103 ("Notice
to claimants of required information and evidence") and
adding 38 U.S.C.A. � 5103A ("Duty to assist claimants").  The
VCAA's notice requirements include the requirement to notify
an applicant of any information necessary to complete an
application for benefits.  In this case, the appellant's
application is complete.  There is no outstanding information
such as proof of service, type of benefit sought, or status
of the veteran, needed to complete the application.

Where a substantially complete application is filed, VA is
required to notify the claimant of the evidence needed to
substantiate the claim for benefits.  In this case, the RO
sent letters to the veteran, dated in May 2001 and February
2004.  These letters instructed the veteran as to the
information and evidence needed to substantiate his claim for
service connection for an acquired psychiatric disability.
He was also told what was needed from him and what VA would
do to assist him.  He was also informed to identify each
source where pertinent evidence could be obtained.  The
letters advised the veteran that VA must make reasonable
efforts to assist him in getting evidence, including such
things as records from any person, agency, or company who had
records that might have been helpful with his appeal.  In
addition, in a March 2002 statement of the case and an April
2005 supplemental statement of the case, the RO informed the
veteran that to substantiate his service connection claim the
evidence must demonstrate that he has a current disability
that began in or was made worse during his military service
or an event in service that caused disability.

Thus, the RO has satisfied the requirement to notify the
claimant of which portion of the information and evidence, if
any, is to be provided by the claimant and which portion, if
any, would be obtained by the Secretary on behalf of the
claimant.  38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. �
3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In summary, the Board finds that no additional notice is
required under the provisions of 38 U.S.C.A. � 5103 and
38 C.F.R. � 3.159(b).  Although the RO's February 2004 letter
informing the veteran of the notice required by the VCAA was
not provided until after the RO adjudicated his claim in June
2001, by a May 2001 letter, "the appellant [was] provided
the content-complying notice to which he [was] entitled."
Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004).
Consequently, the Board does not find that the February 2004
notice under the VCAA requires a remand to the RO.  Nothing
about the evidence or any response to the RO's notification
suggests that the case must be re-adjudicated ab initio to
satisfy the requirements of the VCAA.

The Board also finds that the requirements under VCAA's duty-
to-assist provisions of 38 U.S.C.A. � 5103A have been
satisfied.  The VCAA requires that VA make reasonable efforts
to assist the claimant in obtaining evidence necessary to
substantiate the claim for the benefit sought, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim.  38 U.S.C.A. � 5103A(a) (West
2002); 38 C.F.R. � 3.159(c), (d)).  In this case, in August
2003, the Board remanded the veteran's claim to the RO for
additional development to include, but not limited to,
scheduling the appellant for an additional VA examination to
determine the etiology of any acquired psychiatric
disability.  The veteran was examined by VA in February 2005.
The appellant has not identified any outstanding evidence
which could be used to support the issue on appeal.
Consequently, VA has satisfied the duty to assist.

ORDER

Service connection for an acquired psychiatric disorder is
denied.

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

 Department of Veterans Affairs