judge_norm: S L KENNEDY

condition: ptsd

text:
Citation Nr: 0532000
Decision Date: 11/25/05    Archive Date: 12/02/05

DOCKET NO.  99-20 072A	)	DATE
	)
	)

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

THE ISSUE

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Douglas E. Massey, Counsel

INTRODUCTION

The veteran served on active duty from July 1968 to February
1970.

This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from a June 1999 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in New Orleans, Louisiana, which denied service connection
for PTSD.

An October 2002 Board decision determined that new and
material evidence had been received to reopen a previously
denied claim for service connection for PTSD.  The Board then
undertook additional development and returned the case to the
RO in October 2003 for additional adjudication.  The Board
remanded the case again to the RO in September 2004 for
additional development.  The case was subsequently returned
to the Board for further appellate review.

The veteran also appealed the RO's decision denying his claim
of entitlement to nonservice-connected pension benefits.  In
a January 2004 rating decision, however, the RO granted his
claim for nonservice-connected pension benefits.  As this
determination constitutes a full grant of the benefits sought
as to that claim, it is no longer in appellate status.  See
Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997).

FINDINGS OF FACT

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

2.  The veteran did not engage in combat while serving in the
Republic of Vietnam during the Vietnam era.

3.  No competent evidence confirms that the veteran
experienced a stressful event in service to account for his
diagnosis of PTSD.

CONCLUSION OF LAW

PTSD was not incurred in or aggravated by service.  38
U.S.C.A. �� 1154, 1110, 5107 (West 2002 & Supp. 2005); 38
C.F.R. �� 3.102, 3.303, 3.304 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran is seeking service connection for PTSD.  In the
interest of clarity, the Board will initially discuss whether
this issue has been properly developed for appellate
purposes.  The Board will then address the issue on appeal,
providing relevant VA law and regulations, the relevant
facts, and an analysis of its decision.

I.  Veterans Claims Assistance Act of 2000

Prior to proceeding with an examination of the merits of the
claim, the Board must first determine whether the veteran has
been apprised of the law and regulations applicable to this
matter, the evidence that would be necessary to substantiate
the claim, and whether the claim has been fully developed in
accordance with the Veterans Claims Assistance Act of 2000
(VCAA) and other applicable law.  See 38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5107.

VA is required to provide notice of the VCAA to a claimant as
required by 38 U.S.C.A. �� 5103(a) and 38 C.F.R.
� 3.159(b)(1).  More specifically, VA is required to notify a
claimant of the evidence and information necessary to
substantiate a claim, whether the claimant or the VA is
expected to provide the evidence and request the claimant to
submit any other evidence in his or her possession that
pertains to the claim.  Id.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held that
a VCAA notice consistent with 38 U.S.C.A. � 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.  This new "fourth element" of
the notice requirement comes from the language of 38 C.F.R. �
3.159(b)(1).  See VAOPGCPREC 01-2004.

The Board finds that the notice requirements have been met in
this case.  The veteran was informed of the evidence needed
to substantiate his claim by means of a rating decision dated
in June 1999; a statement of the case (SOC) issued in
September 1999; Supplemental Statements of the Case (SSOC)
issued in January 2002, January 2004, and August 2005; as
well as a May 2001 letter by the RO and an October 2004
letter by the Appeals Management Center (AMC).  As a whole,
these documents satisfy the notice requirements of 38
U.S.C.A. � 5103.

The SOC and SSOCs notified the veteran of the relevant law
and regulations pertaining to his claim.  In addition, the
letters by the RO provided the veteran with information about
the new rights provided under the VCAA, including the
furnishing of forms and notice of incomplete applications
under 38 U.S.C.A.           � 5102, providing notice to
claimants of required information and evidence under 38
U.S.C.A. � 5103, and the duty to assist claimants under 38
U.S.C.A. � 5103A.  VA informed the veteran of the evidence it
already possessed, described the evidence needed to establish
the veteran's claim, and specifically identified what
evidence was needed from the veteran versus what evidence VA
would attempt to procure.  The Board thus finds that these
documents comply with the VA's revised notice requirements.
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

The Board notes that the veteran was not notified of the VCAA
prior to the initial adjudication of his claim by the RO, as
required by the recent Court decision in Pelegrini, supra.
However, the Board finds that any defect with respect to the
VCAA notice requirement in this case is harmless error, as
the content of the notice fully complies with the
requirements of 38 U.S.C. � 5103(a) and 38 C.F.R.
� 3.159(b).  In other words, the essential fairness of the
adjudication process has not been affected by the error as to
the timing of the AMC's notification letter.  See Mayfield v.
Nicholson, 19 Vet. App. 220 (2005).

The Board also finds that the RO fulfilled its duty to obtain
all relevant evidence with respect to the issue on appeal.
The Board notes that there does not appear to be any
outstanding medical records that are relevant to this appeal,
as the RO obtained all relevant medical records identified by
the veteran and his representative.  The RO also attempted to
verify the veteran's claimed in-service stressors.  In a
January 2003, the Headquarters of the United States Marine
Corps indicated that they were unable to identify any of the
veteran's stressors because of his failure to provide
specific information.  The veteran was then given another
opportunity to provide more specific details in order to
conduct a meaningful search.  In a January 2005 statement,
the veteran also stated that he had no additional medical
records.  Accordingly, the Board finds that no further action
is necessary to meet the requirements of the VCAA.

II.  Merits of the Claim

The veteran claims that he suffers from PTSD as a result of
stressors he experienced while serving in Vietnam.  In
particular, he claims that several friends were killed in
action and that he was present during numerous rocket and
mortar attacks.  For the reasons set forth below, the Board
finds that the preponderance of the evidence is against the
veteran's claim.

Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  Service
connection for PTSD requires the following three elements:
[1] a current medical diagnosis of PTSD (presumed to include
the adequacy of the PTSD symptomatology and the sufficiency
of a claimed in-service stressor), [2] credible supporting
evidence that the claimed in-service stressor(s) actually
occurred, and [3] medical evidence of a causal relationship
between current symptomatology and the specific claimed in-
service stressor(s).  See 38 C.F.R. � 3.304(f).

With respect to the first issue, the record shows that the
veteran has been diagnosed with PTSD.  In a March 1999
letter, a VA psychologist indicated that he had initially
evaluated the veteran in 1994 and diagnosed him with PTSD due
to his combat experiences.  Additional letters from the same
psychologist dated in August 2003 and August 2004 confirm
that the veteran has a diagnosis of PTSD as a direct result
of his service in Vietnam.  The psychologist also indicated
that the veteran was receiving psychopharmacological and
psychological treatment by VA for PTSD.  It thus appears that
the record contains a current diagnosis of PTSD.

Therefore, the central issue in this case is whether the
record contains credible supporting evidence that a claimed
in-service stressor actually occurred which supports the
diagnosis.  The evidence necessary to establish the
occurrence of a stressor during service varies depending on
whether the veteran was "engaged in combat with the enemy."
Hayes v. Brown, 5 Vet. App. 60, 66 (1993).  If it is shown
through military citation or other appropriate evidence that
a veteran engaged in combat with the enemy, and the claimed
stressors are related to combat, the veteran's lay testimony
regarding the reported stressors must be accepted as
conclusive evidence of their actual occurrence, provided the
testimony is found to be satisfactory, e.g., credible and
"consistent with the circumstances, conditions, or hardships
of such service."  In such cases, no further developmental or
corroborative evidence is necessary.  38 U.S.C.A. � 1154(b);
38 C.F.R. � 3.304(d).

In this case, no evidence shows that the veteran engaged in
combat with an enemy force.  His service personnel records
show that he served in Vietnam from March 26, 1969, to
February 2, 1970.  His records also show that he worked as a
Wireman, a Postal Clerk, and a Group Guard.  He was stationed
with the 13th Marine Air Base Squadron (MABS-13), Marine Air
Group - 13 (MAG-13), 1st Marine Aircraft Wing (MAW), Fleet
Marine Forces (FNF) and headquarters unit of a Marine Air
Group (H7MS-13, MAG-13, 1ST MAW, FMFPac).

During his service, he was not awarded the Combat Infantryman
Badge, the Purple Heart Medal, or any other award associated
with valor or heroism shown while engaged with an enemy
force.  In such cases, the record must contain service
records or other corroborative evidence that substantiates or
verifies the veteran's testimony or statements as to the
occurrence of the claimed stressor.  See West (Carlton) v.
Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet.
App. 91, 98 (1993).

However, no in-service stressor has been verified because the
veteran has failed to provide enough details concerning his
alleged stressors.  The veteran discussed his stressors at a
personal hearing held before the undersigned Veterans Law
Judge in July 2002.  At that time, the veteran indicated that
three of his friends had been killed in Vietnam.  He stated
that I.W. was killed in a rocket attack in Da Nang in April
1969, that M.M. was killed in 1968, and that E.L. was killed
by sniper fire in 1968.  However, the veteran stated that
both M.M. and E.L. were killed before he had actually arrived
in Vietnam in March 1969.  In addition, the veteran testified
that bases where he was stationed in Chu Lai and Da Nang came
under rocket and mortar attack approximately two to three
times a week.  He also reported that he had been shot at on
numerous occasions.  Furthermore, he reported rocket attacks
during courier trips from Chu Lai to Da Nang during a 30-day
temporary assignment that involved top secret clearance.

In a January 2003 letter, the Department of the Navy,
Headquarters United States Marine Corps determined that the
information provided by the veteran was insufficient for the
purpose of conducting any meaningful research.  It was noted
that they were unable to identify any of the individuals in
the veteran's claim as being killed in action, as none of the
names appear in the directory of names of individuals that
are on the Vietnam Veterans Memorial.  However, it was noted
that a M.M. was killed on October 7, 1966.

The Department of the Navy also noted that they have no means
by which to verify the incidents regarding rocket attacks
without knowing the specific dates of each attack, if there
were any casualties, and if so, the names of those
casualties.  It was also noted, however, that it was uncommon
for a veteran to have served in Vietnam without having been
rocketed or mortared during the time he served there.
Lastly, the Department of the Navy noted that the veteran's
records do not show that he participated in any special
operations and that he was not awarded the Combat Action
Ribbon.  His records show his primary duties as a Wireman, a
Postal Clerk, and a Group Guard.

The Department of the Navy noted that other information
concerning the unit to which the veteran was attached should
be contained in the command chronologies submitted by his
unit, and that those records should be requested from the
Marine Corps Historical Center, History and Museums Division,
in Washington, DC.

Thereafter, VA attempted to assist the veteran in the
development of his claim by requesting detailed information
about his alleged stressors.  In a questionnaire dated
January 2005, the only new information provided by the
veteran was that a P.F.C. R.L. was killed in 1969.  However,
the veteran did not discuss the circumstances surrounding his
death, particularly whether he had actually witnessed his
death.  A report from the internet notes that R.F.L. was
killed on December 28, 1969, in Quang Tin, South Vietnam,
when his aircraft made a crash landing.  No other information
was provided.

In a statement received in January 2005, C.B. indicated that
he had served in the Marine Corps and was stationed in
Vietnam from November 1968 to December 1969.  C.B. indicated
that he first met the veteran in the Spring of 1969 and that
they quickly become good friends.  C.B. reported that rocket
and mortar attacks often took their toll.  He related one
incident in which a gunnery Sergeant and a Corporal were
killed during one such attack because they did not make it to
their bunker on time.  However, C.B. did not provide the date
of the attack or the names of the two casualties.  C.B. also
explained that P.F.C. R.L. arrived in their outfit and that
he, R.L., and the veteran had become good friends.  C.B.
explained that he was the first to return home in December
1969 and that the veteran had told him in a letter that R.L.
had been killed.  However, C.B. did not discuss the details
of R.L.'s death.

After carefully reviewing the record, the Board finds that
the veteran has not provided credible supporting evidence
that a claimed in-service stressor actually occurred.  The
determination of the sufficiency (but not the existence) of a
stressor is exclusively a medical determination for mental-
health professionals, who are "experts" and "presumed to know
the DSM requirements applicable to their practice and to have
taken them into account in providing a PTSD diagnosis."
Cohen, 10 Vet. App. at 140.  In this case, although the
veteran has been diagnosed with PTSD as a result of his
experiences in Vietnam, the Board finds no credible evidence
which verifies any of his claimed stressors.

The Board notes that the veteran's stressors concerning the
deaths of I.W., M.M., and E.L. have not been verified.  In
its January 2003 letter, the Department of the Navy
determined they were unable to identify any of the
individuals in the veteran's claim as being killed in action.
Although the Department of the Navy confirmed that a M.M. was
killed on October 7, 1966, his death occurred approximately
five months before the veteran arrived in Vietnam in March
1969.  Indeed, the veteran himself acknowledged that M.M. and
E.L. were killed before he actually arrived in Vietnam.

The Board also finds that the veteran's stressor concerning
the death of R.L. is insufficient to support his claim.  The
veteran recently added as one of his stressors that a R.L.
was killed in 1969.  Indeed, the record confirms that a
R.F.L. was killed on December 28, 1969, in Quan Tin, South
Vietnam, when his aircraft made a crash landing.  However,
the veteran never indicated that he witnessed the crash
landing that resulted in R.L.'s death and he related no other
information surrounding the circumstances of R.L.'s death
other than he knew the individual.  C.B. also stated that he
was not in Vietnam at the time of R.L.'s death.  Instead, he
merely indicated that he, R.L., and the veteran were close
friends in Vietnam and that the veteran had told him about
R.L.'s death in a letter after returning home from Vietnam.
Since the veteran has not provided any pertinent information
regarding R.L.'s death as one of his claimed stressors,
including whether he was a witness to the crash, the Board
finds that this stressor has not been verified for purposes
of this claim.

In addition, the Board notes that the Department of the Navy
was unable to confirm that bases where the veteran was
stationed in Chu Lai and Da Nang came under rocket and mortar
attack.  The Department of the Navy determined that the
information provided by the veteran was insufficient for the
purpose of conducting any meaningful research.  Specifically,
the Department noted that they had no means by which to
verify the incidents regarding rocket attacks without knowing
the specific dates of each attack, if there were any
casualties, and if so, the names of those casualties.
Unfortunately, the veteran never provided a specific date and
was unable to identify any casualties.  See Fossie v. West,
12 Vet. App. 1, 6-7 (1998) (holding no duty to assist where
veteran's statements concerning in-service stressors were too
vague to refer to ESG).  Thus, the veteran's claimed
stressors of incoming rocket and mortar rounds while
stationed at Chu Lai and Da Nang have not been verified.

The Board has also considered the veteran's claimed stressor
involving rocket attacks during courier trips from Chu Lai to
Da Nang during a 30-day temporary assignment that involved
top secret clearance.  However, the Department of the Navy
noted that the veteran's records do not show that he
participated in any special operations and that he was not
awarded the Combat Action Ribbon.  Instead, records show his
primary duties as a Wireman, a Postal Clerk, and a Group
Guard.  See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991)
(determining the credibility of evidence is a function for
the Board); Hayes v. Brown, 5 Vet. App. 60, 69- 70 (1993),
citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992) (VA
decision makers have the responsibility to assess the
credibility of evidence and determine the degree of weight to
give the evidence).

The Board thus concludes that the veteran has failed to
provide enough information with which to verify any of his
claimed in-service stressors.  In Fossie, 12 Vet. App. at 6-
7, the Court denied the veteran's PTSD claim and held that
there was no duty to assist where veteran's statements
concerning in-service stressors were too vague to refer to
the U.S. Army and Joint Services Environmental Support Group.
In Wood, 1 Vet. App. at 193, the Court also held that if a
veteran wishes help in developing his claim, he cannot
passively wait for it in those circumstances where he may or
should have information that is essential in obtaining
putative evidence.  In light of the veteran's inability to
provide the necessary details concerning his claimed
stressors, specifically the approximate dates of rocket and
mortar attacks, the names of any casualties, and the
circumstances of their deaths, the Board has no choice but to
deny his claim.

In the absence of confirmation of a stressful incident which
supports a diagnosis of PTSD, the diagnosis of PTSD contained
in the record is not supported by a verified stressor.
"Just because a physician or other health care professional
accepted the veteran's description of his Vietnam experiences
as credible and diagnosed the appellant as suffering from
PTSD does not mean that the BVA was required to grant service
connection for PTSD."  Wilson v. Derwinski, 2 Vet. App. 614,
618 (1992).  " The BVA [is] not bound to accept the
appellant's uncorroborated account of his Vietnam
experiences...."  Swann v. Brown, 5 Vet. App. 229, 233
(1993); Wood, 1 Vet. App. at 192.

In conclusion, as the veteran has failed to produce credible
supporting evidence that a claimed stressor actually
occurred, the Board finds that the preponderance of the
evidence is against the veteran's claim of entitlement to
service connection for PTSD.  While the veteran may well
believe that his PTSD is related to service, as a layperson
without medical expertise, he is not qualified to address
questions requiring medical training for resolution, such as
a diagnosis or medical opinion as to etiology.  See Grottveit
v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2
Vet. App. 492 494-95 (1991) (laypersons are not competent to
render medical opinions).  Hence, there is not an approximate
balance of positive and negative evidence to which the
benefit-of-the-doubt standard applies, and the appeal is
denied.

ORDER

Service connection for post-traumatic stress disorder is
denied

____________________________________________
	S. L. Kennedy
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: JEFF MARTIN

disposition: denied

condition: back

text:
Citation Nr: 0601000
Decision Date: 01/12/06    Archive Date: 01/19/06

DOCKET NO.  03-12 388	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon

THE ISSUE

Entitlement to an increased evaluation for residuals of
cervical spine injury with degenerative joint disease and
radiating arthralgia to the right shoulder, currently
evaluated as 40 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

A. P. Simpson, Counsel

INTRODUCTION

The veteran served on active duty from January 1974 to July
1978.

This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a February 2003 rating decision of the
Portland, Oregon, Department of Veterans Affairs (VA)
Regional Office (RO).  The RO continued the 40 percent
evaluation for residuals of cervical spine injury with
degenerative joint disease and radiating arthralgia to the
right shoulder.

The Board remanded the claim for adjudicative action, and the
case has been returned to the Board for further appellate
review.

FINDING OF FACT

Residuals of cervical spine injury with degenerative joint
disease and radiating arthralgia to the right shoulder is
manifested by severe limitation of motion of the cervical
spine and slight to moderate functional impairment in the
right upper extremity.

CONCLUSION OF LAW

The criteria for an evaluation in excess of 40 percent for
residuals of cervical spine injury with degenerative joint
disease and radiating arthralgia to the right shoulder have
not been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West
2002 &. Supp. 2005); 38 C.F.R. �� 4.40, 4.45, 4.59, 4.71a,
Diagnostic Code 5293 (2002).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes
obligations on VA in terms of its duty to notify and assist
claimants.  When VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and the representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. �
3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183
(2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004) (Pelegrini II), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide;
and that (4) VA will request that the claimant provide any
evidence in his possession that pertains to the claim.

The Board finds that the VCAA notice requirements have been
satisfied by the January 2003 letter and by the discussions
in the February 2003 rating decision, the April 2003
statement of the case, and the February 2005 supplemental
statement of the case.  The Board will not go into whether
the letters informed the veteran of the evidence necessary to
substantiate his claim, as it is clear he has actual
knowledge.  For example, he states that the service-connected
disability is worse than the current evaluation contemplates.
That statement, if true, would substantiate his claim for
increase.  The rating decision, statement of the case, and
supplemental statement of the case explained to the veteran
why an evaluation in excess of 40 percent was not warranted.
This told him the specific symptoms that were needed for the
higher evaluations.

As to informing the veteran of which information and evidence
he was to provide to VA and which information and evidence VA
would attempt to obtain on his behalf, VA informed him that
it would make reasonable efforts to help him get the evidence
necessary to support his claim, such as medical records,
employment records, or records from other federal agencies.
It stated that the veteran would need to give it enough
information about the records so that it could obtain them on
his behalf.  It told him that if he had received treatment
from VA, he should let it know and it would obtain those
records for him.  It also stated that if he had received
private medical treatment, he should provide permission to VA
so that it could obtain those records.  While the letter did
not inform him that he should submit any evidence in his
possession that pertains to the claim, such was implied.
Specifically, the veteran was told that the VA needed
evidence that his disability had worsened.  It stated that if
he had received treatment at VA or privately, he should
inform VA.  It told him he could submit lay statements from
people who had knowledge of his condition.  It then stated,
"You should provide this evidence we've requested from you
as soon as possible."  This essentially informed the veteran
that he should submit any evidence in his possession that
pertained to the claim.  Thus, any failure on the part of VA
to specifically inform him of such is harmless error.  See
Bernard v. Brown, 4 Vet. App. 384 (1993).

VA must also 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; 38 C.F.R. � 3.159 (2005).  VA has
obtained VA treatment records and provided the veteran with
an examination in connection with his claim.  The veteran has
stated he has received treatment from VA only.

For the foregoing reasons, the Board concludes that all
reasonable efforts were made by VA to obtain evidence
necessary to substantiate the claim.  The evidence of record
provides sufficient information to adequately evaluate the
claim, and the Board is not aware of the existence of any
additional relevant evidence which has not been obtained.
Therefore, no further assistance to the veteran with the
development of evidence is required, nor has the delayed
notice of the VCAA resulted in any prejudice to the veteran.
38 U.S.C.A. � 5103A(a)(2); 38 C.F.R. � 3.159(d); see Mayfield
v. Nicholson, 19 Vet. App. 103 (2005).

II.  Decision

Service connection for cervical spine injury with
degenerative changes at C4-C7 and bilateral shoulder pain was
granted by means of a May 1994 rating decision and assigned a
20 percent evaluation.  In September 1995, the veteran filed
a claim for increase, and was granted a 40 percent evaluation
in a May 1996 rating decision.  The service-connected
disability has been reclassified as residuals of cervical
spine injury with degenerative joint disease and radiating
arthralgia to the right shoulder.

The veteran asserts that he warrants an evaluation in excess
of 40 percent for the service-connected disability.  He
states he has pain on a daily basis in his neck and into the
right shoulder area.  He also stated that he tires easily
with repetitive use.

Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.  38
U.S.C.A. � 1155; 38 C.F.R. Part 4 (2005).  Separate
diagnostic codes identify the various disabilities.  VA has a
duty to acknowledge and consider all regulations which are
potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589
(1991).

The veteran filed his claim for increase on September 17,
2002.  The criteria for evaluating diseases or injuries of
the spine were amended on September 23, 2002, and again in
September 2003.  In VAOPGCPREC 3-2000 (April 2003), VA's
General Counsel held that when a provision of the VA rating
schedule is amended while a claim for an increased rating
under that provision is pending, a determination as to
whether the intervening change is more favorable to the
veteran should be made.  If the amendment is more favorable,
that provision should be applied to rate the disability for
periods from and after the effective date of the regulatory
change; and the prior regulation should be applied to rate
the veteran's disability for periods preceding the effective
date of the regulatory change.  Id.

Prior to September 2002, Diagnostic Code 5293, which
addressed intervertebral disc syndrome, provided for a
40 percent evaluation for severe intervertebral disc syndrome
with recurring attacks and intermittent relief.  38 C.F.R.
� 4.71a, Diagnostic Code 5293 (2002).  Evidence of pronounced
intervertebral disc syndrome with persistent symptoms
compatible with sciatic neuropathy, characteristic pain,
demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to the site of the diseased
disc and with little intermittent relief warranted a 60
percent rating.  Id.

As of September 2002, intervertebral disc syndrome was
evaluated either on the total duration of incapacitating
episodes over the past 12 months or by combining under
38 C.F.R. � 4.25 separate evaluations of its chronic
orthopedic and neurologic manifestations along with
evaluations for all other disabilities, whichever method
resulted in the higher evaluation.  The criteria are as
follows, in part:

With incapacitating episodes having a
total duration of at least 6 weeks
during the past 12 months - 60 percent
disabling.

With incapacitating episodes having a
total duration of at least 4 weeks but
less than 6 weeks during the past
12 months - 40 percent disabling.

38 C.F.R. � 4.71a, Diagnostic Code 5293 (September 2002).
For purposes of evaluations under 5293, an incapacitating
episode is a period of acute signs and symptoms due to
intervertebral disc syndrome that requires bed rest
prescribed by a physician and treatment by a physician.  Id.
at Note (1).  "Chronic orthopedic and neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that are
present constantly, or nearly so.  Id.

When evaluating on the basis of chronic manifestations,
evaluate orthopedic disabilities using evaluation criteria
for the most appropriate orthopedic diagnostic code or codes.
Id. at Note (2).  Evaluate neurologic disabilities separately
using evaluation criteria for the most appropriate neurologic
diagnostic code or codes.  Id.

As of September 2003, the relevant criteria are as follows,
in part:

Unfavorable ankylosis of the entire
spine - 100 percent disabling.

Unfavorable ankylosis of the entire
cervical spine - 40 percent disabling.

Forward flexion of the cervical spine 15
 degrees or less - 30 percent disabling.

38 C.F.R. � 4.71a, Diagnostic Codes 5235 to 5243 (September
2003).  As of September 2003, the criteria for evaluating
intervertebral disc syndrome did not change but the cite
changed to 38 C.F.R. � 4.71a, Diagnostic Code 5243.

For VA compensation purposes, normal forward flexion of the
cervical spine is zero to 45 degrees, extension is zero to
45 degrees, left and right lateral flexion are zero to 45
degrees, and left and right lateral rotation are zero to 80
degrees.  Id.  The combined range of motion refers to the
sum of the range of forward flexion, extension, left and
right lateral flexion, and left and right rotation.  Id.
The normal combined range of motion of the cervical spine is
340 degrees.  Id.  The normal ranges of motion for each
component of spinal motion provided in this note are the
maximum that can be used for calculation of the combined
range of motion.  Id.

The Court has emphasized that evaluation of musculoskeletal
disabilities also includes consideration of functional loss
due to pain on motion, weakened movement, excess
fatigability, diminished endurance, or incoordination, and of
impairment of the veteran's ability to engage in ordinary
activities, including employment.  38 C.F.R. �� 4.10, 4.40,
4.45, 4.59 (2004); DeLuca v. Brown, 8 Vet. App. 202 (1995).

When all the evidence is assembled, VA is 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 (1990).

The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against the
grant of an evaluation in excess of 40 percent for residuals
of cervical spine injury with degenerative joint disease and
radiating arthralgia to the right shoulder.  The Board notes
that it has not considered the veteran's disability under the
former Diagnostic Code 5290, which addresses limitation of
motion of the cervical spine, as the highest evaluation under
that Diagnostic Code is 30 percent and would not assist the
veteran in obtaining a higher evaluation.  See 38 C.F.R.
� 4.71a, Diagnostic Code 5290 (2002).

Considering the veteran's disability under the former
Diagnostic Code 5293, the Board finds that the preponderance
of the evidence is against a finding that the veteran's
disability picture meets the criteria for a 60 percent
evaluation for intervertebral disc syndrome.  For example,
both the December 2002 and October 2003 VA examination
reports show that deep tendon reflexes were equal at the
biceps and triceps of both upper extremities.  Strength in
those muscles was 5/5, and sensation was intact throughout.
There was no visible atrophy in the upper extremities.  This
is evidence against a finding that the veteran has absent
neurological findings appropriate to the site of the diseased
disc.  The veteran has complained of severe pain in his right
shoulder, which is contemplated by the 40 percent evaluation,
as that evaluation contemplates severe intervertebral disc
syndrome.  The October 2003 VA examination report shows the
examiner determined that the veteran's right shoulder pain
was a classic symptom for referred pain from the cervical
spine.  He described the fatigue due to nerve root irritation
as being moderate.  No medical professional has stated the
veteran has muscle spasms, and the veteran has not stated
such either.

The Board finds that the clinical findings do not establish
intervertebral disc syndrome that is any more than severe in
degree.  Again, there is no evidence of muscle spasms.  The
veteran has pain in his right shoulder, but his deep tendon
reflexes are equal in both arms, his strength is 5/5, and
sensation was intact.  The preponderance of the evidence is
against a finding that the veteran meets the criteria for an
evaluation in excess of 40 percent under the former
Diagnostic Code 5293.

Now considering the amended criteria, the preponderance of
the evidence is also against a finding that the veteran would
warrant an evaluation in excess of 40 percent.  At the time
of the December 2002 VA examination, the veteran stated that
he had to quit work in construction because of his neck and
right arm problems.  The amended criteria under Diagnostic
Code 5243 evaluate intervertebral disc syndrome based upon
"incapacitating episodes."  The veteran has not stated that
he has had any incapacitating episodes associated with the
service-connected disability.  Thus, there is a lack of
evidence that he has had six weeks of incapacitating episodes
during the last year.  Accordingly, the preponderance of the
evidence is against a finding that the veteran meets the
criteria under the 60 percent evaluation.  See 38 C.F.R.
� 4.71a, Diagnostic Code 5243.

If the service-connected disability is considered under the
part of the regulation where the veteran's orthopedic
symptoms are evaluated separately from the neurological ones,
the service-connected disability would still not warrant any
more than a 40 percent evaluation.  Based upon the veteran's
limitation of motion of the cervical spine, he would warrant
a 30 percent evaluation under Diagnostic Code 5237.  See
38 C.F.R. � 4.71a, Diagnostic Code 5237 (2005).  In order for
him to warrant an evaluation in excess of 40 percent, the
evidence would need to establish that the veteran had
neurological findings that would warrant a 30 percent
evaluation.  See 38 C.F.R. � 4.25 (2005).  The neurological
findings associated with the service-connected disability
have been reported to be in the veteran's right upper
extremity.  Under the Diagnostic Codes 8510, which address
peripheral neuropathy in the shoulder and elbow movements, it
provides a 20 percent evaluation for mild incomplete
paralysis and a 40 percent evaluation for moderate incomplete
paralysis of the major arm (the veteran is right handed as
shown in the service medical records).  See 38 C.F.R.
� 4.124a, Diagnostic Codes 8510.  While the veteran has pain
in his right arm, there were no neurological deficits found
in the right upper extremity when the veteran was examined in
December 2002 and October 2003.  The deep tendon reflexes
were equal on both sides.  Strength was 5/5, and sensation
was intact.  Such findings would, in no way, reach the level
of a finding of moderate incomplete paralysis of the involved
nerve.  Thus, the service-connected residuals of cervical
spine injury with degenerative joint disease and radiating
arthralgia to the right shoulder would not warrant an
evaluation in excess of 40 percent if the orthopedic symptoms
were evaluated separately from the neurological symptoms.
See 38 C.F.R. � 4.71a, Diagnostic Code 5243, Note (2).

Additionally, an increased evaluation may be based on either
actual limitation of motion or the functional equivalent of
limitation of motion due to less or more movement than
normal, weakened movement, excess fatigability,
incoordination, and pain on movement.  See DeLuca, 8 Vet.
App. 202 (discussing 38 C.F.R. �� 4.40, 4.45).  As stated
above, the veteran is at the maximum evaluation for
limitation of motion of the cervical spine.  The 40 percent
evaluation under Diagnostic Code 5237 would require that the
cervical spine be ankylosed, which has not been shown.  The
functional impairment of veteran's right upper extremity has
been described as mild to moderate, which the Board finds is
contemplated in the 40 percent evaluation.  The veteran's
overall functional impairment, as described in the clinical
records, is indicative of no more than severe functional
impairment due to pain or any other factor and thus no more
than a 40 percent evaluation is warranted.

The veteran is competent to report his symptoms, and the
Board does not doubt the sincerity of the veteran's belief
that his service-connected disability has worsened.  However,
the objective clinical findings do not support his assertions
for the reasons stated above.  The preponderance of the
evidence is against a finding that the service-connected
residuals of cervical spine injury with degenerative joint
disease and radiating arthralgia to the right shoulder
warrants any more than a 40 percent evaluation.  Therefore,
the benefit-of-the-doubt rule does not apply.  Gilbert,
1 Vet. App. at 55.

Review of the record reveals that the RO has not considered
referral of this case to the Under Secretary for Benefits or
the Director, Compensation and Pension Service for the
assignment of an extraschedular rating under 38 C.F.R.
� 3.321(b)(1) (2005).  This regulation provides that to
accord justice in an exceptional case where the schedular
standards are found to be inadequate, the field station is
authorized to refer the case to the Under Secretary or the
Director, Compensation and Pension Service for assignment of
an extraschedular evaluation commensurate with the average
earning capacity impairment.  The governing criteria for such
an award is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards.

The Board finds that the evidence does not show that this
case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards.  At the December 11, 2002 VA examination, the
veteran stated he had to quit his job as a construction
worker because of the pain due to the service-connected
disability and because of a seizure disorder.  A December 2,
2002, VA outpatient treatment report shows that the veteran
reported he had stopped working in construction due to the
seizure disorder and made no mention of his service-connected
disability.  Even if part of the veteran's reason of quitting
his job was due to the pain from the service-connected
disability, the Board finds that the 40 percent evaluation
contemplates the veteran's disability picture and concludes
that referral of this case to the Under Secretary or the
Director, Compensation and Pension Service, for assignment of
an extraschedular evaluation is not warranted.

ORDER

An increased evaluation for residuals of cervical spine
injury with degenerative joint disease and radiating
arthralgia to the right shoulder is denied.

________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JAMES L MARCH

condition: gi

text:
Citation Nr: 0602000
Decision Date: 01/24/06    Archive Date: 01/31/06

DOCKET NO.  98-00 567	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon

THE ISSUE

Entitlement to service connection for a stomach disorder, to
include as due to exposure to herbicides.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant/Veteran and his wife

ATTORNEY FOR THE BOARD

Kristi Barlow, Counsel

INTRODUCTION

The veteran served on active duty from April 1966 to April
1986, including honorable service in the Republic of Vietnam
from June 1967 to June 1968, and again from December 1968 to
February 1969.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a June 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon, which denied the benefit sought on appeal.
The Board first considered this appeal in December 2003 and
remanded it for additional development.  All requested
development has been performed, but the benefit sought
remains denied.  As such, this appeal is properly returned to
the Board for further appellate consideration.

FINDINGS OF FACT

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

2.  The veteran does not have a diagnosed stomach disorder.

3.  The veteran does not have a stomach disorder that began
during active service or as a result of his service in the
Republic of Vietnam.

CONCLUSION OF LAW

A stomach disorder was not incurred in service or presumed to
have been incurred as a consequence of active service.
38 U.S.C.A. �� 1110, 1112, 1113 1116, 1131, 1133 (West 2002);
38 C.F.R. �� 3.303, 3.307, 3.309 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Before assessing the merits of the appeal, VA's duties under
the Veterans Claims Assistance Act of 2000 (VCAA) must be
examined.  The VCAA provides that VA shall apprise a claimant
of the evidence necessary to substantiate his/her claim for
benefits and that VA shall make reasonable efforts to assist
a claimant in obtaining evidence unless no reasonable
possibility exists that such assistance will aid in
substantiating the claim.

In letters dated in October 2001, April 2004, and February
2005, VA notified the veteran of the information and evidence
needed to substantiate and complete his claim, including what
part of that evidence he was to provide and what part VA
would attempt to obtain for him.  See 38 U.S.C.A. � 5103(a);
38 C.F.R. � 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).  The letters also generally advised the
veteran to submit any additional information in support of
his claim.  See Pelegrini v. Principi, 18 Vet. App. 112
(2004).  Thus, the Board finds that VA met its duty to notify
the veteran of his rights and responsibilities under the
VCAA.

With respect to the timing of the notice, the Board points
out that the United States Court of Appeals for Veterans
Claims (Court) held in Pelegrini that a VCAA notice, as
required by 38 U.S.C. Section 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits.  In
this case, the appealed AOJ decision was pending at the time
the VCAA was enacted and, as such, notice prior to that
decision was not possible.  The Court acknowledged in
Pelegrini that some claims were pending at the time the VCAA
was enacted and that proper notice prior to the initial AOJ
decision was impossible.  The Court specifically stated in
Pelegrini that it was not requiring the voiding or
nullification of any AOJ action or decision, only finding
that appellants are entitled to VCAA-content-complying
notice.  Thus, the timing of the notice in this matter does
not nullify the rating action upon which this appeal is based
and the Board specifically finds that the veteran was not
prejudiced by the post-AOJ decision notice because he was
given sufficient time to submit and/or identify any and all
evidence necessary to substantiate his claim.  Under these
circumstances, the Board finds that the notification
requirements of the VCAA have been satisfied as to both
timing and content.

The Board also finds that VA has complied with the VCAA's
duty to assist by aiding the veteran in obtaining evidence,
affording him a physical examination, obtaining a medical
opinion as to the etiology and severity of his complaints of
a stomach disability, and by affording him the opportunity to
give testimony before a Decision Review Officer at the RO in
August 2000.  The veteran elected not to give testimony
before the Board and does not contend that there is
additional evidence to substantiate his claim.  Thus, the
Board finds that VA has done everything reasonably possible
to notify and to assist the veteran and that no further
action is necessary to meet the requirements of the VCAA.

The veteran avers that he has a stomach problem as a result
of eating contaminated food during his service in the
Republic of Vietnam and/or due to direct exposure to Agent
Orange during his service in Vietnam.  He testified before a
Decision Review Officer in August 2000 that his stomach
problem began shortly after his discharge from service and
that it has not been identified by medical personnel.  Both
the veteran and his wife credibly testified that the veteran
experienced stomach pain periodically that was not related to
the ingestion of food, but that it began sometimes when the
veteran's emotions were high.

Service medical records show that the veteran did not
complain of any stomach problems on periodic examinations nor
did he list stomach trouble in his medical history upon
retirement examination in December 1985.  The only mention of
stomach complaints during service was in March 1970 when the
veteran related feeling nauseated when preparing food.  It
was noted that he did not enjoy his work in food service and
was suspected of having a psychological gastrointestinal
reaction.  Another record dated in March 1970, however,
states that the veteran had acute gastroenteritis.

The veteran sought VA compensation benefits promptly upon his
discharge from service, but not mention that he had stomach
problems.  Upon VA examination in September 1986, the veteran
did not complain of stomach problems.  A VA examination
report dated in February 1988 is also void of any complaints
of stomach problems.  Treatment records for this same
timeframe do not include complaints of stomach pain.

The veteran submitted his request for VA compensation
benefits for a stomach problem in March 1997.  At a VA social
and industrial survey interview in April 1997, he stated that
he experienced very painful stomach pain about once every
month and a half.  In August 1997, the veteran's wife
submitted a statement reflecting her observation that the
veteran's stomach pain was not brought on by ingestion of
food or by activities.  The veteran's wife also stated that
the veteran was often unsure of whether the pain started in
his stomach or in his back.

Current treatment records reflect occasional complaints of
stomach pain that radiates into the back, crampy stomach pain
in the mid-morning, a notation of treatment for irritable
bowel syndrome, and possible diverticulitis of the colon.
Examination reports have consistently shown the veteran to be
obese without abdominal tenderness, organomegaly or masses in
the abdomen.  In September 2001, the veteran underwent a
complete evaluation to begin treatment at a VA medical
facility and there is no mention in the examination report of
either complaints of a stomach problem or findings of a
stomach disorder.

The veteran underwent VA examination in March 2005.  The
examiner reviewed the veteran's claims file, including
treatment records and service medical records, and examined
and interviewed the veteran.  The veteran complained of
cramping that began in either 1986 or 1987, and pain that was
so severe as to cause him to almost pass out.  The veteran
related that the pain began in his back and radiated around
to his chest; he denied any nausea, vomiting, diarrhea,
constipation, or abdominal pain.  Following a complete
evaluation, the examiner found no symptoms of a
gastrointestinal disease and opined that the veteran's pain
seemed to be related to lifting.  The examiner also opined
that the veteran's current complaints of pain were not
related to the one instance of gastroenteritis noted in the
service medical records.

Service connection for VA compensation purposes will be
granted for a disability resulting from disease or personal
injury incurred in the line of duty or for aggravation of a
preexisting injury in the active military, naval or air
service.  See 38 U.S.C.A. �� 1110, 1131; 38 C.F.R.
� 3.303(a).  When a veteran seeks service connection for a
disability, due consideration shall be given to the
supporting evidence in light of the places, types, and
circumstances of service, as evidenced by service records,
the official history of each organization in which the
veteran served, the veteran's military records, and all
pertinent medical and lay evidence.  See 38 U.S.C.A. � 1154;
38 C.F.R. � 3.303(a).  The mere fact of an in-service injury
is not enough; there must be evidence of a chronic
disability resulting from that injury.  If there is no
evidence of a chronic condition during service, or an
applicable presumptive period, then a showing of continuity
of symptomatology after service is required to support the
claim.  See 38 C.F.R. � 3.303(b).  Evidence of a chronic
condition must be medical, unless it relates to a condition
to which lay observation is competent.  See Savage v. Gober,
10 Vet. App. 488, 495-498 (1997).  If service connection is
to be established by continuity of symptomatology, there
must be medical evidence that relates a current condition to
that symptomatology.  Id.

With regard to disabilities a veteran attributes to exposure
to Agent Orange, the law provides that for veterans who
served in the Republic of Vietnam during the period
beginning on January 9, 1962, and ending May 7, 1975,
service connection may be presumed for certain diseases
enumerated by statute and regulations that become manifest
within a particular period, if any such period is
prescribed.  See 38 U.S.C.A. � 1116; 38 C.F.R. � 3.309(e).
If a veteran is found to have been exposed and/or presumed
to have been exposed to an herbicide agent during active
service in the Republic of Vietnam, the following diseases
shall be service-connected if the requirements of 38 C.F.R.
� 3.307(a)(6) are met even though there is no record of such
disease during service, provided further that the rebuttable
presumption provisions of 38 C.F.R. � 3.307(d) are also
satisfied:  chloracne or other acneform disease; Type II
diabetes; Hodgkin's disease; chronic lymphocytic leukemia;
multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute
peripheral neuropathy; porphyria cutanea tarda; prostate
cancer; respiratory cancers; and, soft-tissue sarcoma.  See
38 C.F.R. � 3.309(e).

In June 2002, VA gave notice under the authority granted by
the Agent Orange Act of 1991, that it had determined that a
presumption of service connection based on exposure to
herbicides used in the Republic of Vietnam during the
Vietnam Era was not warranted for the following conditions:
hepatobiliary cancers, nasal and nasopharyngeal cancer, bone
cancers, breast cancer, cancers of the female reproductive
system, urinary bladder cancer, renal cancer, testicular
cancer, leukemia, reproductive effects (abnormal sperm
parameters and infertility), Parkinson's disease, chronic
persistent peripheral neuropathy, lipid and lipoprotein
disorders, gastrointestinal and digestive disease (other
than diabetes mellitus), immune system disorders,
circulatory disorders, respiratory disorders (other than
certain respiratory cancers), skin cancer, cognitive and
neuropsychiatric effects, gastrointestinal tract tumors,
brain tumors, amyloidosis, and any other condition for which
the Secretary of VA has not specifically determined a
presumption of service connection is warranted.  See 67 Fed.
Reg. 42600 (June 24, 2002) (emphasis added).

Given the evidence as outlined above, the Board finds that
the veteran does not have a disability for which VA
compensation benefits may be awarded.  Although he has
periodic complaints of abdominal pain, his treatment records
do not include a diagnosed stomach disability and the VA
examination report clearly states that there are no current
symptoms of a gastrointestinal disease.  It is important to
point out that pain is not in and of itself a disability.
See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed.
Cir. 2001) (absent a disease or injury incurred during
service, the basic compensation statutes cannot be
satisfied).  Therefore, because there is no diagnosed stomach
disability, service connection for such a disorder must be
denied.

The Board fully acknowledges the veteran's assertion that he
believes he may have developed a stomach disorder as a result
of exposure to Agent Orange.  Although he served in Vietnam
in 1967, 1968, and 1969, and is presumed to have been exposed
to herbicides including Agent Orange, absent medical evidence
of either a disease presumed to be a result of that exposure
or a medical opinion linking a current disability to exposure
to herbicides, the veteran's claim must be denied.

ORDER

Service connection for a stomach disorder, to include as due
to exposure to herbicides, is denied.

____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: ALAN S PEEVY

disposition: remanded

text:
Citation Nr: 0603000
Decision Date: 02/02/06    Archive Date: 02/15/06

DOCKET NO.  04-26 316	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for cold injury
residuals to both feet.

2.  Entitlement to service connection for chronic
onychomycosis of both feet.

ATTORNEY FOR THE BOARD

Alexander B. Barone, Associate Counsel

INTRODUCTION

The veteran had active service from November 1951 to October
1953.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2003 rating determination
of a Regional Office (RO) of the Department of Veterans
Affairs (VA).  A notice of disagreement was received in
February 2004, a statement of the case was issued in May
2004, and a substantive appeal was received in July 2004.

The case is being remanded to the RO via the Appeals
Management Center (AMC), in Washington, DC.

REMAND

Review of the veteran's pleadings shows that in advancing his
appeal he uses the terms residuals of cold injury and
onychomycosis interchangeably.  In one statement, he asserts
that onychomycosis is a result of cold injury.

The veteran's service medical records were apparently
destroyed in the 1973 fire at the National Personnel Records
Center (NPRC).  However, the veteran's DD Form 214 does
confirm that he served in Korea.  The veteran reported
receiving treatment at the Schofield Clinic beginning in
1953, but he has not furnished any information which would
allow VA to request such records.  He has also not furnished
any supporting statements from fellow servicemembers or other
informants with knowledge of the claimed disorders since
service.  The Board hereby emphasizes to the veteran the
potential significance of furnishing such information to the
RO in connection with his claims.

Current medical records do show a diagnosis of onychomycosis,
but such records are silent as to whether or not this
disorder is likely related to the claimed conditions of the
veteran's service as opposed to some other cause.  The
question presented appears to be medical in nature, and
neither the Board nor the veteran are shown to be medically
trained so as to be competent to address such questions.
Under the circumstances, the Board finds that further
development of the medical evidence is necessary to allow for
eventual informed appellate review.

Accordingly, this matter is REMANDED to the RO for the
following actions:

1.  The veteran should again be requested
to furnish identifying information
regarding the claimed treatment at the
Schofield Clinic beginning in 1953 as
well as any supporting statements from
individuals with knowledge of the claimed
disorders during and since service.

2.  Regardless of whether or not the
veteran responds to the request outlined
in the above paragraph 1, the veteran
should be afforded an appropriate VA
examination to determine the current
nature and etiology of the claimed
residuals of cold injury and
onychomycosis.  The claims folder should
be made available to the examiner for
review in connection with the
examination.  All examination findings
should be clearly reported.  Any
residuals of cold injury to the feet
should be reported, and the examiner
should specifically indicate whether
onychomycosis is a residual of cold
injury.  The examiner should also
indicate whether it is at least as likely
as not (a 50% or higher degree of
probability) that the veteran's
onychomycosis is causally related to the
claimed conditions of the veteran's
service (wet socks and boots for
prolonged periods in extreme cold
weather).

3.  After completion of the above, the RO
should review the expanded record and
determine if the benefits sought can be
granted.  The veteran should be furnished
an appropriate supplemental statement of
the case and be afforded an opportunity
to respond.  Thereafter, the case should
be returned to the Board for appellate
review.

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

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2005).

______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2005).


judge_norm: D C SPICKLER

text:
Citation Nr: 0604000
Decision Date: 02/10/06    Archive Date: 02/22/06

DOCKET NO.  02-14 246	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for degenerative joint
disease of the cervical spine, with multiple chronic disc
herniation and radicular impingement.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

E. Ward, Counsel

INTRODUCTION

The veteran had active service for a period from October 1971
to retirement in September 1995.

This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from a rating decision of the Waco,
Texas, Regional Office (RO) of the Department of Veterans
Affairs (VA).

The Board has recharacterized the issue as degenerative joint
disease of the cervical spine with multiple chronic disc
herniation and radicular impingement (hereinafter cervical
spine disorder), to more accurately reflect the medical
findings of record.

The issue of an increased rating for the service-connected
degenerative joint disease of the lumbar spine, which the
veteran appears to be raising in an April 2002 notice of
disagreement has not yet been addressed by the RO and is
referred for appropriate action.

When this matter was first before the Board in October 2003,
the case was remanded for further development. In compliance
with the remand, additional medical evidence has been
received and a supplemental statement of the case has been
issued. The appeal is ready for adjudication.

FINDINGS OF FACT

1.  All pertinent notification and indicated evidentiary
development have been completed.

2.  There is no evidence of cervical spine pathology in
service or within the first post-service year, and the
currently diagnosed degenerative joint disease of the
cervical spine with multiple chronic disc herniation and
radicular impingement was first demonstrated years after
separation, and is not shown to be related to service, or to
a service-connected disability.

CONCLUSION OF LAW

Degenerative joint disease of the cervical spine with
multiple chronic disc herniation and radicular impingement
was not incurred in or aggravated by active military service
and may not be presumed to have been incurred or aggravated
therein. 38 U.S.C.A. �� 1101, 1110, 1112, 1113 (West 2002);
38 C.F.R. �� 3.303, 3.307, 3.309 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000), [codified at 38 U.S.C.A.
�� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)] and
the regulations implementing the VCAA are applicable to the
appellant's claim.

The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. They also require VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the appellant provide any
evidence in the claimant's possession that pertains to the
claim.

The record reflects that through the rating decision,
statement of the case and supplements thereto, and RO
correspondence, in particular VCAA letters dated in December
2001, October 2003 Board Remand, and a VCAA notification
letter dated in March 2004, the appellant has been informed
of the evidence and information necessary to substantiate the
claim, the information required from him in order for VA to
obtain evidence and information in support of the claim, and
the assistance that VA would provide in obtaining evidence.
Since the appellant was informed of the evidence that would
be pertinent to the claim and requested to submit such
evidence or provide the information necessary to enable the
RO to obtain such evidence, the Board believes that the
appellant was on notice of the fact that he should submit any
pertinent evidence in his possession. Therefore, the Board is
satisfied that VA has complied with the notification
requirements of the VCAA and the implementing regulations.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002);
Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

VA has a duty to assist the appellant in obtaining evidence
necessary to substantiate the claim, unless no reasonable
possibility exists that such assistance would aid in that
endeavor. 38 U.S.C.A. � 5103A (West 2002). The Board finds
that the RO has obtained, or made reasonable efforts to
obtain, all records or other evidence that might be relevant
to the appellant's claim. The service medical records and all
identified post-service treatment records have been
associated with the claims file, the appellant has been
afforded VA examination, and the Board has obtained medical
opinion pertinent to the claim.

In sum, the appellant has had ample notice of what is
required to substantiate the claim. The Board finds that no
reasonable possibility exists that any further assistance
would aid in substantiating the claims. 38 U.S.C.A. � 5103A.
Therefore, a decision on the merits at this stage, without
remand for any additional development, is not prejudicial to
the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993).

II. Factual Background

The service medical records reflect that on September 1971
enlistment examination, and subsequent reenlistment
examinations, no defects were noted relevant to the cervical
spine or neck. Discharge examinations, including March 1995
retirement examination, likewise reflect no cervical spine
abnormalities.

In September 1975, the veteran filed claims for compensation
listing a series of disabilities including the lower back and
kidney, left knee, hands, fingers, and right ankle. He did
not allege any disability in the cervical spine or neck at
that time.

A November 1995 rating decision granted service connection
for several disabilities including arthritis of the lumbar
spine and arthritis of the left knee, both evaluated as 10
percent disabling effective from October 1, 1995, and for
rhinitis claimed as sinus headaches, noncompensably rated
effective from October 1, 1995. A December 1997 rating action
increased the rating for the lumbar spine disability from 10
to 20 percent.

In a July 2001 claim, the veteran asserted a burning pain
from the neck down the left arm and leg for the prior year.
He asserted that his treating VA physician, Dr. Dickson, told
him that the results of electromyography (EMG) and nerve
conduction (NCV) testing showed that arthritis from the lower
back progressed up the spine into the neck, causing pain, and
that this would be documented in his VA medical file. He
asserted claims for arthritis of the back inclusive of the
neck, left arm, and leg.

VA outpatient treatment notes dated from August 2000 to July
2001 include September 2000 VA radiology examination report
reflecting mild degenerative changes in the lower cervical
spine, and scoliosis of the thoracic spine convexed to the
left, thoracic spine otherwise unremarkable. Various notes
from Dr. Dickson over this period also reflects the veteran's
complaints of neck pain, and that Dr. Dickson had informed
the veteran of the results of a magnetic resonance imaging
(MRI) report. There is no opinion by Dr. Dickson on the
etiology of the neck condition.

An October 2000 private EMG report indicated that findings
were non-diagnostic and that absent sensory responses could
be technical, and clinical correlation was needed. A June
2001 private MRI report reflects assessment of congenitally
narrow AP diameter of the spinal cord, mild cervical
spondylosis without appearance of impingement on the exiting
C7 nerve root, and mild facet degenerative joint disease. At
C7-T1 there was facet joint degenerative joint disease with
mild overgrowth but no significant impingement on spinal cord
or individual nerve roots.

On September 2001 VA examination as a new patient at another
VA facility, the veteran reported a history of chronic low
back pain, with radiation down the left lower extremity,
presently stable. Complaints were also of pain, of one year's
onset, in the left posterior neck, radiating to the left
upper extremity with intermittent paresthesias and weakness
of the left arm. Assessment included degenerative joint
disease of the cervical spine with left cervical
radiculopathy, and chronic low back pain presumably due to
degenerative joint disease.

In a December 2001 statement, the veteran asserted that his
upper neck problems were aggravated by being required to do
physical exercises on many surfaces such as fields, grass,
sand dirt without any barriers other than a "poncho"
between him and the ground. He also stated that the manner of
doing push-ups caused strain on his back over his 24 years of
military service, causing his current back conditions.

Additional VA outpatient treatment notes from September 2001
onward show continuing treatment for the stated back and
other disabilities.

In a March 2002 rating action, the RO denied service
connection for degenerative joint disease and multiple
chronic disc herniation with radicular impingement at C6-7,
cervical spine. The RO found no evidence of cervical spine
complaints or disability in service or after service for many
years, and no basis on which to relate the current disability
to service or to a service-connected disability.

In his September 2002 VA Form 9, substantive appeal, the
veteran maintained that the type of sit-ups required during
military service caused his neck disability, and that these
style sit-ups had since been discontinued by the military as
part of the physical fitness test. He submitted copies of the
military physical fitness tests (PFTs) reflecting a change in
the positions to be maintained while performing sit-ups, and
indicated his belief that the policy governing the change in
PFTs was due to their ability to cause injuries such as his,
although he had no proof of the reasons for the change in the
PFTs.

In an October 2003 Remand, the Board ordered re-examination
with opinion.

The veteran was examined on March 2004 VA examination
pursuant to the Board's remand, with noted review of the
claims folders by the examiner. The veteran reported being in
the marines for 24 years, recalled no problems with his neck
while in the marines, and denied any neck injuries before,
during, or after military service. He reported gradual onset
of neck pain beginning in 2000. The examiner indicated by way
of history that 2001 x-ray findings showed mild degenerative
changes and an MRI showed cervical spondylosis at C6-7. The
examiner noted that on VA consultation, surgery was not felt
to be warranted. Treatment was by physical therapy, over-the-
counter medications, and TENS unit. X-rays of the lumbar
spine, left knee, and cervical spine confirmed findings of
mild to moderate degenerative disk changes of the cervical
spine with limitation of motion. The examiner also noted that
loss of lordosis in the upper cervical spine may be related
to muscle spasm or positioning. Examination was negative for
radiculopathy by history or on examination. Diagnoses
included cervical spondylosis, with degenerative disc and
degenerative arthritic changes noted on imaging studies.

The examiner opined that it is less than likely that the
veteran's cervical arthritis is degenerative in origin.
Reasons for this opinion were noted as (1) service medical
records do not show any treatment for neck symptoms
indicative of degenerative joint disease; (2) the veteran
denied any neck problems while on active duty, and history
and available records indicate onset of neck pain was
approximately five years after military service; (3) the
veteran's contention that sit-ups during military service
caused the neck condition was not consistent with the lack of
symptoms in service, and (5) the examiner knew of no medical
literature that related such exercises to cervical
degenerative joint disease.

The VA examiner also opined that current x-rays do not show
degenerative joint disease of the knee, and there is no
history or examination indicative of degenerative joint
disease of the knee. Further, it was noted that current mild
degenerative joint disease of the lumbar spine is reflected
in history and on examination. There was no alteration in
gait or other body mechanics due to the lumbar or knee
conditions, and the examiner opined that it was less likely
that they had any causative relationship to the veteran's
current cervical degenerative joint disease. Also noted were
the veteran's service-connected mild degenerative joint
disease of the lumbar spine, and left knee sprain.

In an August 2004 statement, the veteran indicated he had no
additional information to provide. In a November 2004
supplemental statement of the case, the denial of service
connection was confirmed. In subsequent statements, most
recently dated in December 2004, and in a December 2005
written brief presentation, the veteran and his
representative contend that service connection is warranted
for the cervical spine disability.

III.  Analysis

Service connection is granted for disability resulting from
disease or injury incurred in or aggravated by active duty.
38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303 (2005).

Additionally, service connection may be granted for any
disease initially diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease or injury was incurred in service. 38 C.F.R.
� 3.303(d).

Service connection for certain chronic disorders, including
arthritis, may be presumed to have been incurred in service
if demonstrated to a compensable degree within 1 year after
separation from service.  38 U.S.C.A. �� 1101, 1112, 1113;
38 C.F.R. �� 3.307, 3.309.

Direct service connection may not be granted without medical
evidence of a current disability, medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury.  See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996)
(table).

In the present case, the service medical records are
completely devoid of any complaints, diagnoses, or treatment
for cervical spine disability. In September 1995, when the
veteran filed several claims for compensation, including for
lumbar spine disability, he did not allege any disability to
his cervical spine. It was only in 2000, approximately five
years later, after onset of cervical spine pathology, that he
asserted this disability as etiologically related to sit-ups
he did in service, or as related to the service-connected
degenerative joint disease of the lumbar spine and left knee.

The record reflects no objective medical evidence of cervical
spine pain or disability during service, or any arthritis
within the first post-service year. It was not until
approximately 5 years after retirement from military service
that cervical spine pathology had its onset. Although the
veteran asserts in his July 2001 claim that his treating VA
physician, Dr. Dickson, attributed the cervical spine
disorder to military service, review of Dr. Dickson's
treatment records reveals no notations supporting this
assertion.

The evidence reflects a March 2004 VA examination and opinion
finding no etiological relationship between the current
cervical spine condition and the veteran's military service
or service-connected disabilities. This opinion was provided
after review of the veteran's C File. The VA examiner noted
that it was not until 2000, some five years post-service,
that the veteran reported onset of cervical spine symptoms
later diagnosed as degenerative joint disease. Thus the
examiner concluded after a thorough review of the objective
medical evidence of record, that the current cervical
disorder is unrelated to any incident of the veteran's
military service, and likewise, unrelated to the service-
connected lumbar spine and left knee disabilities. The
examiner provided sound bases and rationale for the
conclusions, and further indicated that there is nothing in
the medical literature to support the veteran's assertions
that sit-ups in the PFTs cause neck disability. The Board
finds the VA opinion to be of great probative value, and
finds nothing in the record to contradict that assessment.
See Hayes v. Brown, 5 Vet. App. 60, 69 (1993); Wood v.
Derwinski, 1 Vet. App. 190, 192- 93 (1992).

The Board recognizes the veteran's statements and has
reviewed the copies of the military performance tests
provided. The Board finds nothing in these records to support
the veteran's contentions as to the etiology of the current
cervical spine disorder. The veteran's statements are not
competent evidence since laypersons are not qualified to
render a medical diagnosis or an opinion concerning medical
causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992).

The Board has considered the benefit-of-the-doubt doctrine.
However, as the preponderance of the evidence is against the
claim, that doctrine is not applicable to the instant appeal.
38 U.S.C.A � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49,
55-57 (1991).

ORDER

Service connection for degenerative joint disease of the
cervical spine, with multiple chronic disc herniation and
radicular impingement, is denied.

____________________________________________
	D. C. Spickler
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: SHANE A DURKIN

judge_role: Veterans Law Judge

text:
Citation Nr: 0605000
Decision Date: 02/22/06    Archive Date: 03/01/06

DOCKET NO.  04-00 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina

THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for
arthritis of the left knee.

2.  Entitlement to a rating in excess of 10 percent for
postoperative residuals of cartilage removal from the left
knee.

3.  Entitlement to a rating in excess of 10 percent for
arthritis of the left hip.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

D. L. Wight, Counsel

INTRODUCTION

The veteran served on active duty from January 1956 to
December 1959 and from October 1962 to July 1969.

This case comes to the Board of Veterans' Appeals (Board) on
appeal of rating decisions rendered by the Columbia, South
Carolina, Regional Office (RO) of the Department of Veterans
Affairs (VA).

The veteran was scheduled for videoconference hearing before
the Board in January 2006; however, prior to the hearing, the
veteran submitted a statement indicating that he did not wish
to have a hearing.

REMAND

By rating decision in September 2003, the RO awarded service
connection for arthritis of the left knee, evaluated as 10
percent disabling, and continued a 10 percent evaluation for
postoperative residuals of cartilage removal from the left
knee.  Thereafter, the veteran's representative submitted a
September 2003 statement expressing disagreement with the
disability evaluations assigned for both disabilities.  While
the RO subsequently issued a statement of the case and
supplemental statements of the case addressing the rating for
residuals of cartilage removal from the left knee, these
documents do not address the claim for a higher evaluation
for arthritis of the left knee.  As the September 2003 notice
of disagreement also placed the issue of a higher evaluation
for arthritis of the left knee in appellate status, the
matter must be remanded for the originating agency to issue a
statement of the case.  See Manlincon v. West, 12 Vet. App.
238, 240-41 (1999).

The most recent medical evidence presently associated with
the claims folders consists of VA outpatient treatments
records dated prior to October 2004 and VA examination
reports dated in September and December 2004.  In a statement
received in June 2005, the veteran indicated that he had
undergone a total knee replacement in April and that he had
complications following the surgery.  He further indicated
that records were available from the Dorn VA Medical Center
in Columbia, South Carolina.  The procurement of such
pertinent medical reports is required.

In light of the veteran's recent surgery, the Board is of the
opinion that a new VA examination would be probative in
determine the current severity of the veteran's service-
connected left knee and hip disabilities.  The "duty to
assist" requires a "thorough and contemporaneous medical
examination" that is sufficient to ascertain the current
level of disability, and accounts for its history.  Floyd v.
Brown, 9 Vet. App. 88, 93 (1995).  This medical examination
must consider the records of prior medical examinations and
treatment in order to assure a fully informed decision.
Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).

Accordingly, this case is REMANDED to the RO or the Appeals
Management Center in Washington, D.C., for the following
actions:

1.  The originating agency should obtain
the names and addresses of all medical
care providers who have treated the
veteran for left knee and/or left hip
disabilities since October 2004.  After
securing the necessary release, the
originating agency should obtain these
records.  In any event, it should obtain
pertinent treatment records from the Dorn
VA Medical Center in Columbia, South
Carolina.

2.  The originating agency should furnish
to the veteran a statement of the case
addressing the issue of entitlement to a
higher evaluation for arthritis of the
left knee.  The veteran should be
properly notified of the requirements to
perfect an appeal with respect to this
issue.

3.  The RO should arrange for the veteran
to be afforded a VA examination to
determine the current degree of severity
of his left knee and hip disabilities.
The veteran should be notified of the
date, time, and place of the examination
in writing.  The claims folder, to
include a copy of this Remand, must be
made available to and be reviewed by the
examiner.  All indicated studies,
including X-rays and range of motion
studies in degrees, should be performed.

In reporting the results of range of
motion testing, the examiner should
identify any objective evidence of pain
and to the extent possible, the examiner
should assess the degree of severity of
any pain.

The extent of any incoordination,
weakened movement and excess fatigability
on use should also be described by the
examiner.  If feasible, the examiner
should assess the additional functional
impairment due to weakened movement,
excess fatigability, or incoordination in
terms of the degree of additional range
of motion loss of the left knee and left
hip.

The examiner should also express an
opinion concerning whether there would be
additional limits on functional ability
on repeated use or during flare-ups (if
the veteran describes flare-ups), and, to
the extent possible, provide an
assessment of the functional impairment
on repeated use or during flare-ups.  If
feasible, the examiner should assess the
additional functional impairment on
repeated use or during flare-ups in terms
of the degree of additional range of
motion loss.

The examiner also should provide an
opinion concerning the degree of severity
of any instability or subluxation of the
left knee.  The examiner should also
determine if the knee locks and if so the
frequency of the locking.

The examiner should also provide an
opinion concerning the impact of the
disabilities on the veteran's ability to
work.

The supporting rationale for each opinion
expressed must also be provided.

4.  Thereafter, the originating agency
should review the claims folders and
ensure that the requested development has
been conducted and completed in full.  If
any development is incomplete,
appropriate corrective action is to be
implemented.

5.  The originating agency should also
undertake any other development it
determines to be warranted.

6.  Then, the originating agency should
readjudicate the issues on appeal based
on a de novo review of the record.  If
the benefits sought on appeal are not
granted to the veteran's satisfaction,
the originating agency should issue a
supplemental statement of the case and
afford the veteran and his representative
an appropriate opportunity to respond.

Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate.  By this remand, the Board
intimates no opinion as to any final outcome warranted.  The
veteran need take no action until he is otherwise notified.

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

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2005).

_________________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2005).