judge_norm: DEREK R BROWN

condition: heart

condition: back

text:
Citation Nr: 0421000
Decision Date: 08/02/04    Archive Date: 08/09/04

DOCKET NO.  97-27 552	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for a heart disorder.

2.  Entitlement to service connection for arthritis of the
cervical spine, lumbar spine, and hands.

3.  Entitlement to service connection for stenosis of the
left subclavian artery.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Bredehorst, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1967 to January
1971.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 1996 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Newark, New
Jersey.

In January 1999, the veteran requested a personal hearing at
the RO in Philadelphia, Pennsylvania.  A travel board hearing
was subsequently scheduled for him at that office.  Although
he was notified of the date, time, and location, he failed to
appear.  Hence, the Board deems the request for a hearing to
have been withdrawn.  38 C.F.R. � 20.702(d) (2003).

During the course of the appeal, the veteran perfected
appeals concerning entitlement to service connection for
memory loss, anxiety/depression, and asbestosis.  A May 2002
rating decision granted service for those issues.  Since that
decision represents a full grant of the benefit sought with
regard to those issues, they are no longer before the Board
for consideration.  Grantham v. Brown, 114 F.3d 1156 (Fed.
Cir. 1977).

Service connection for stenosis of the left subclavian artery
is addressed in the remand portion of the decision.  That
portion of the appeal is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.  Consistent with
the instructions below VA will notify you of the further
action required on your part.

FINDINGS OF FACT

1.  There is no competent medical evidence to show that the
veteran's heart disorder is related to service.

2.  There is no competent medical evidence to show that
arthritis of the cervical spine, lumbar spine, and hands is
related to service.

CONCLUSION OF LAW

1.  A heart disorder was not incurred or aggravated during
active military service, and cardiovascular disease may not
be presumed to have been so incurred.  38 U.S.C.A. �� 1110,
5103, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.159,
3.303, 3.307, 3.309, 3.326 (2003).

2.  Arthritis of the cervical spine, lumbar spine, and hands
was not incurred or aggravated during active military
service, and it may not be presumed to have been so incurred.
38 U.S.C.A. �� 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
�� 3.102, 3.159, 3.303, 3.307, 3.309, 3.326 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107,
5126 (West 2002), VA has an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.  See also, 38 C.F.R. ��
3.102, 3.159, 3.326(a) (2003).

The United States Court of Appeals for Veterans Claims
(Court) in Pelegrini v. Principi, No. 01-944 (U.S. Vet.App.
June 24, 2004), held, in part, that the notice required by
38 U.S.C.A. � 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits.

The Board observes that substantially complete application
regarding the issues on appeal was received in June 1995.
The issues were denied in a June 1996 rating decision.

Correspondence dated in March 2001 satisfies the notice
provisions of the Act.  In this regard, the appellant was
informed of what specific evidence is needed to substantiate
his claim, which specific evidence the Secretary would seek
to obtain, and which specific evidence the claimant was
obligated provide.  Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002).

While it is clear that the timing of VA's VCAA notice was not
consistent with the chronological manner set forth in 38
C.F.R. � 3.159, a notice error such as this does not
necessarily result in prejudice to the veteran.

In Pelegrini, the Court found that the failure to provide the
notice until after a claimant received an initial unfavorable
AOJ determination would largely nullify the purpose of the
notice and, as such, prejudice the claimant by forcing him to
overcome an adverse decision, as well as substantially impair
the orderly sequence of claims development and adjudication.

There is no basis for concluding that harmful error occurs
simply because a claimant receives VCAA notice after an
initial adverse adjudication.  To do so would be far more
prejudicial to claimants, since to make an across-the-board
presumption of prejudicial error would result in numerous
remands and vacated adjudications, and nullify all of a
claimant's previously completed steps to perfect an appeal.
Clearly, this was not intended in the construction of 38
U.S.C.A. � 5103(a).

All the VCAA requires is that the duty to notify be satisfied
and that claimants be given the opportunity to submit
information and evidence in support of their claims.  Once
this has been accomplished, all due process concerns have
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384
(1993); see also 38 C.F.R. � 20.1102 (2003) (harmless error).

In the present case, the Board finds that any defect with
respect to the timing of the VCAA notice requirements was
harmless error.  While the notice provided to the appellant
was not given prior to the first AOJ adjudication of the
claim, the notice was provided by the AOJ prior to the
transfer and certification of the case to the Board, and the
content of the notice fully complied with the requirements of
38 U.S.C.A. � 5103 and 38 C.F.R. � 3.159(b).  In view of the
correspondence of record, the appellant was given every
opportunity to submit evidence and argument in support of his
claim, and to respond to VA notice and other correspondence
intended to help him develop his claim.

With regard to the duty to assist, VA and private medical
records were obtained and associated with the claims file.
In addition, the veteran was afforded a personal hearing in
November 1997 and provided VA examinations where necessary.
The veteran did not respond to the VCAA notice letter;
therefore, there is no indication that additional evidence
existed that was not already of record.  Hence, the Board
finds that any failure on VA's part in not fulfilling the
VCAA notice requirements prior to the RO's initial
adjudication of the claim is harmless.  See ATD Corp. v.
Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf.
38 C.F.R. � 20.1102.

As shown above, VA took appropriate steps to develop the
veteran's claim.  All things considered, and not withstanding
Pelegrini, the Board finds that in light of the totality of
the record, to decide the appeal would not be prejudicial
error.

Factual Background

Service medical records do not contain any complaints or
findings associated with a heart disorder or arthritis of the
cervical spine, lumbar spine, or hands.  The veteran reported
a one month history of chest pains in October 1969.  An
examination revealed that the veteran's heart was within
normal limits and it was determined that the pain was related
to a traumatic injury.  The other impression was questionable
functional symptoms of dyspnea.  At separation from active
duty neither a heart disorder, nor arthritis of the cervical
spine, lumbar spine or hands was diagnosed.

A fall on the stairs was noted in June 1970.  The record only
revealed that the veteran bruised his right foot.

Private medical records from Michael DiMarcangelo, M.D.,
indicated someone beat the veteran in December 1974.  He was
seen for complaints of a swollen and painful left hand.  X-
rays revealed a small metallic body that the veteran reported
was due to shrapnel. The diagnosis was contusion of the left
hand.  An October 1979 record contains the notation,
"ankylosing spondylitis, dx 10 years."  In November 1979,
he complained of diffuse pains particularly in his back; the
diagnosis was ankylosing spondylitis.

The veteran's sacroiliac joints were examined at Cooper
Medical Center in November 1979 and no significant
abnormalities were shown except for a very mild sclerotic
change in the ilial portion of the joint surface.  This was
judged to be of questionable clinical significance.

The veteran underwent an electrocardiogram at Cooper Medical
center in February 1993.  The finding was that the veteran's
heart was within normal limits.

Treatment records from the VA Medical Center (VAMC) in
Philadelphia dated from May to August 1995 include several
notations regarding neck pain and decreased range of motion.
The impression in June 1995, was that it was most likely that
the veteran's neck pain was secondary to a bilateral shoulder
problem rather than radiculopathy.  Still, cervical
radiculopathy could not be completely excluded.

A June 1995 VA discharge summary indicated the veteran was
admitted in May 1995 with a two and one half month history of
chest pain only with exertion.  The records noted that the
veteran had multiple risk factors for coronary artery disease
(CAD), but that his history was suggestive of unstable
angina.  An MRI was performed that revealed a left subclavian
vein stenosis.  An MRI of the cervical spine revealed
degenerative joint disease at multiple levels.

A September 1995 VA examination diagnosed hypertension,
cardiovascular disease, arteriosclerotic cardiovascular
disease, and osteoarthritis of the neck, hands and low back.

The veteran testified during a personal hearing in November
1997.  He stated that he always developed chest pains with
exertion while in service.  He believed he injured his back,
arms and chest artery by falling down ship ladders in
service.  He reported these incidents and that he
occasionally received light duty for a couple of days.   The
veteran did not remember how he injured his hands in service.

VAMC medical records dated form November 1997 to September
1999 included a diagnosis of CAD.

A statement received in January 1999 from the veteran's
brother indicated that the appellant was in good physical
condition when he entered the service, but after returning
from service, he complained of pain in the chest, back, and
neck.

At a January 2001 VA examination the veteran reported falling
from a ladder and sustaining a back injury.  A pertinent
diagnosis was not entered.

Analysis

Service connection is granted for disability resulting from
disease or injury incurred or aggravated in active military
service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  Service
connection is not granted for disease incurred or injury
sustained in service, but for disability resulting from
disease or injury in service.  Brammer v. Derwinski, 3 Vet.
App. 223 (1992).  To establish service connection, there must
be evidence of an etiologic relationship between a current
disability and events in service or an injury or disease
incurred there.  Rabideau v.  Derwinski, 2 Vet. App. 141, 143
(1992).  The requisite link between a current disability and
military service may be established, in the absence of
medical evidence that does so, by medical evidence that the
veteran incurred a chronic disorder in service and currently
has the same chronic disorder, or by medical evidence that
links a current disability to symptoms that began in service
and continued to the present.  Savage v. Gober, 10 Vet. App.
488, 498 (1997); 38 C.F.R. � 3.303.

The Board finds that weight of the evidence is against the
veteran's claim of entitlement to service connection for
arthritis of the cervical spine, low back and hands, since
all of elements to establish a claim for service connection
are not shown by the evidence.  Specifically, there was no
evidence of an inservice disease or injury that is related to
the veteran's current spine and hand disabilities aside from
the previously service-connected right fifth finger fracture
residuals.

The veteran contends that he had several falls in service
that led to his current back disorder, but he has no
recollection of how he may have injured his hands in service.
Service medical records did show treatment for one fall, but
the only complaint or injury noted was to a foot.  A medical
examination report indicated that there was no abnormalities
associated the veteran's spine or hands.

While the veteran's brother reports that the appellant
complained of back pain after separation from service, there
is no medical evidence to support a finding that an injury
occurred during service or that arthritis of the cervical
spine, lumbar spine, or hands was compensably disabling
within a year of separation from active duty.

The only injury of record regarding the veteran's hands
occurred post-service and was limited to the left hand.  The
Board is aware that a small metallic body in the hand was
revealed by x-ray and the veteran indicated at that time that
it was shrapnel; however, since no injury was reported in
service and the separation examination was absent any
findings, the preponderance of the evidence is against
concluding that the shrapnel became imbedded in service.

Moreover, diagnoses of the claimed disorders, which were not
made until many years after service, were not linked to
service by competent health care providers.  In the absence
of an injury or disease in service and an opinion linking the
current disorder to service, service connection is not
warranted.

Similarly, the Board finds that the evidence does not support
the veteran's contention that his heart disorder is related
to service.  The evidence reveals no indication that the
veteran had a heart disorder in service.  Notably, an
electrocardiogram as recent as 1993 did not reveal any
abnormalities related to the veteran's heart.  Since a heart
disorder was not diagnosed until years after service, there
is no basis for concluding that a relationship between the
two exists.  Indeed, there are no physicians of record who
made such a connection.

While it may be the veteran's sincere belief that his claimed
disorders are due to events that occurred in service, he is
not competent to establish a medical diagnosis or show
medical etiology merely by his own assertions.  Such matters
require medical expertise, which the appellant does not have.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).

In view of the going, the preponderance of the evidence is
against the veteran's claims of entitlement to service
connection for a heart disorder and arthritis of the cervical
spine, low back, and hands.  As a result, the benefit-of-the-
doubt doctrine is not for application and the claim is
denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for a heart disorder is denied.

Service connection for arthritis of the cervical spine,
lumbar spine, and hands is denied.

REMAND

The Board finds that additional development is needed before
the claim of service connection for stenosis of the left
subclavian artery may be considered.

Service medical records showed that the veteran was seen in
October 1969 with a one-month history of increasing chest
pain.  Pain was felt when the chest wall was pushed on.  The
impression was chest wall pain possibly secondary to past
trauma.  Since the record suggested an injury to the chest,
an opinion is necessary to determine the relationship between
the apparent injury in service and the post-service diagnosis
of left subclavian artery stenosis.

Accordingly, this case is REMANDED to the RO for the
following action:

1.  The RO should request the veteran to
identify all VA and non-VA healthcare
providers who have treated him for left
subclavian artery stenosis since August
2002 and ask him to sign the appropriate
releases.  Thereafter, the RO should
attempt to secure these records, and any
pertinent records obtained should be
associated with the claims file.  All
attempts to procure records should be
documented in the file.  If the RO cannot
obtain records identified by the veteran,
a written notation to that effect should
be placed in the file.  The veteran and
his representative are to be notified of
unsuccessful efforts in this regard.

2.  The RO must review the claims file
and ensure that all notification and
development action required by
38 U.S.C.A. �� 5100, 5102, 5103, 5103A
are fully complied with and satisfied.
See also 38 C.F.R. � 3.159; Quartuccio v.
Principi, 16 Vet. App. 183 (2002); the
Veterans Benefits Act of 2003.  The
veteran must be requested to submit any
pertinent evidence in his possession that
has not previously been submitted.

3.  Upon completion of the development
prescribed above, the appellant must be
afforded a vascular examination to
ascertain the nature and etiology of his
left subclavian artery stenosis.  All
tests and studies deemed necessary to
make this determination should be
ordered.  The claims folder must be made
available to the physician for review.

Any physician performing the vascular
examination should provide a detailed
review of the veteran's history, current
complaints, and the nature and etiology
of any left subclavian artery stenosis,
in accordance with the latest pertinent
AMIE worksheet.  The examiner must
specifically opine whether it is at least
as likely as not that left subclavian
artery stenosis is related to service.  A
complete rationale must be provided for
any opinion offered.

4.  The appellant must be given adequate
notice of the date and place of any
requested examination.  A copy of all
notifications must be associated with the
claims folder.  The veteran is hereby
advised that failure to report for a
scheduled VA examination without good
cause shown will have adverse effects on
this claim.

5.  The RO should review the examination
report to ensure that it is in complete
compliance with the directives of this
REMAND.  If the report is deficient in
any manner, the RO must implement
corrective procedures.

6.  Upon completion of the requested
development above, the RO should again
review the claim.  If additional evidence
or information received triggers a need
for further development, then such
development should be undertaken.  The RO
is advised that they are to make a
determination based on the law and
regulations in effect at the time of
their decision, to include any further
changes in VCAA and any other applicable
legal precedent.  If the benefit sought
on appeal remains denied, the veteran and
his representative should be provided a
supplemental statement of the case
(SSOC).  The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal.  A reasonable
period of time should be allowed for
response.

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

______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA
FORM
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2003
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4597
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CONTINUED

Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

VA
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series: legacy

judge_norm: D C SPICKLER

disposition: denied

condition: knee

disposition: remanded

text:
Citation Nr: 0422000
Decision Date: 08/11/04    Archive Date: 08/17/04

DOCKET NO.  02-13 674	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia

THE ISSUES

1.  Entitlement to an initial disability rating, in excess of
10 percent for degenerative joint disease of the right knee.

2.  Entitlement to an initial disability rating in excess of
10 percent for degenerative joint disease of the left knee.

3.  Entitlement to service connection for degenerative disc
disease of the thoracic spine.

REPRESENTATION

Appellant represented by:	Virginia Department of
Veterans Affairs

ATTORNEY FOR THE BOARD

Ambler T. Jackson, Law Clerk
INTRODUCTION

The veteran served on active duty from October 1970 to
October 1982.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2002 rating decision from the
Department of Veterans' Affairs (VA) Regional Office (RO) in
Roanoke, Virginia.

The issue of entitlement to service connection for
degenerative disc disease of the thoracic spine is addressed
in the REMAND portion of the decision below and is REMANDED
to the RO via the Appeals Management Center (AMC), in
Washington, DC.

FINDINGS OF FACT

1.  The VA has fully informed the veteran of the evidence
necessary to substantiate his claim and the VA has made
reasonable efforts to develop such evidence.

2.  Degenerative joint disease, of both the left and right
knee, is manifested by subjective complaints of pain,
weakness, swelling, stiffness, inflammation, instability,
locking, fatigue, flare-ups and lack of endurance.

3.  There is objective medical evidence of range of motion
limited by pain in each knee, to include limitation of
flexion to 90 degrees in each knee.

CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess
of 10 percent for degenerative joint disease of the left knee
have not been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107
(West 2002); 38 C.F.R. �� 3.102, 3.159, 4.1-4.7, 4.21, 4.40,
4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260,
5261 (2003).

2.  The criteria for an initial disability rating in excess
of 10 percent for degenerative joint disease of the right
knee have not been met.  38 U.S.C.A. �� 1155, 5103, 5103A,
5107 (West 2002); 38 C.F.R. �� 3.102, 3.159, 4.1-4.7, 4.21,
4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257,
5260, 5261 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that the Veterans Claims Assistance Act of
2000 (VCAA), now codified at 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002), is applicable to this
appeal.  This law redefines the obligations of VA with
respect to the duty to assist; the duty to obtain medical
opinion(s) where necessary; and it also includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.

In the present case, the veteran's application for
entitlement to service connection for a bilateral knee injury
was received in February 2001, and in May 2001, prior to
adjudication of the claim, the RO, via letter, provided the
veteran with information regarding VCAA.  Thereafter, in a
rating decision dated in April 2002, the RO awarded the
veteran service connection for degenerative joint disease of
the right knee and left knee, assigning a 10 percent
disability rating for each knee, effective February 2001.

The veteran appealed this rating decision in a notice of
disagreement received in May 2002.  In cases where a new
issue is raised in the notice of disagreement, such as in
this case where the veteran has appealed the assigned rating
for degenerative joint disease of the right knee and the left
knee, no further VCAA notice was required.  VAOPGCPREC 8-
2003, December 2003.

Factual Background

On VA examination dated in March 2002, the veteran related
his history of military service and the history of his
bilateral knee disability to the examiner.  His subjective
complaints included pain in both of his knees, as well as
weakness, swelling, stiffness, inflammation, instability,
locking, fatigue, flare-ups and lack of endurance.  The
veteran took medication for his symptoms; however, the
medication was not helpful.

The veteran's activities of daily living included the ability
to brush his teeth, dress himself, shower, cook, use a vacuum
and walk.  He was unable to drive his standard shift truck
due to the inability to push the clutch because of his
bilateral knee disability.  He was unable to shop, remove the
trash, operate a lawn mower or garden due to pain associated
with his bilateral knee disability.

On physical examination of the veteran's lower extremities,
his feet showed no sign of abnormal weight bearing and did
not wear any device.  His posture was stooped, his gait was
normal and he did not have limited function of standing or
walking.

Examination of the veteran's knee joints showed crepitus
bilaterally with tenderness on palpation anteriorly with no
heat, redness, swelling, effusion, drainage, abnormal
movement instability or weakness.  Range of motion was 90
degrees of flexion bilaterally; extension was to 0 degrees,
bilaterally; the Drawer test was normal; and McMurray's test
was negative.  His range of motion was limited by pain.

The veteran underwent an x-ray of his knees.  Views of the
right knee revealed degenerative spurring from the patella
without significant joint space narrowing.  There was very
mild narrowing of the medial femoral-tibial compartment.
Only minimum spurring was seen from the left patella.  There
was no fracture, dislocation or joint effusion seen on either
side.  There was no chondrocalcinosis.

The impression was mild degenerative joint disease, slightly
greater on the right knee than the left knee.  The final
diagnosis was degenerative joint disease of both knees,
status post knee injury.

Laws and Regulations

Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity.  Separate diagnostic codes identify the
various disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.
The percentage ratings in VA's Schedule for Rating
Disabilities represent, as far as can practicably be
determined, the average impairment in earning capacity
resulting from such disabilities and their residual
conditions in civil occupations.  See 38 C.F.R. � 4.1 (2003).

Where there is a question as to which of two ratings shall be
applied, the higher rating will be assigned if the disability
picture more nearly approximates the criteria required for
that rating.  Otherwise, the lower rating will be assigned.
See 38 C.F.R. � 4.7.

Where the question for consideration is propriety of the
initial evaluation assigned, as it is in this case,
evaluation of the medical evidence since the grant of service
connection and consideration of the appropriateness of
"staged rating" is required. See Fenderson v. West, 12 Vet.
App. 119 (1999).

When an evaluation of a disability is based on limitation of
motion, as in the present case, the Board must also consider,
in conjunction with the otherwise applicable diagnostic code,
any additional functional loss the veteran may have sustained
by virtue of other factors as described in 38 C.F.R. �� 4.40
and 4.45.  See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

Any reasonable doubt regarding a degree of disability will be
resolved in favor of the veteran.  See 38 C.F.R. � 4.3.

Analysis

At the time the RO granted service connection for
degenerative joint disease of the right and left knee, the
disabilities were rated under Diagnostic Code 5010.
Subsequently, the RO also considered the veteran's bilateral
knee disability under Diagnostic Codes 5257, 5260 and 5261.

Diagnostic Code 5257 assigns a 10 percent disability rating
where recurrent subluxation or lateral instability is slight.
A higher evaluation is warranted where recurrent subluxation
or lateral instability is moderate.

Diagnostic Code 5260 assigns a 10 percent disability rating
for limitation of flexion of the leg, where flexion is
limited to 45 degrees.  A higher evaluation is warranted
where flexion is limited to 30 degrees.

Diagnostic Code 5261 assigns a 10 percent disability rating
where limitation of extension of the leg is limited to 10
degrees.  A higher evaluation is assigned where limitation of
extension is limited to 15 degrees.

Diagnostic Code 5010 (of 38 C.F.R. Part 4 (2003)), arthritis
due to trauma, substantiated by x-ray findings, is rated
pursuant to the criteria found under 38 C.F.R. Part 4,
Diagnostic Code 5003 (2003) (degenerative arthritis).  This
code provides that compensation may be awarded (1) when
limitation of motion meets the schedular criteria for the
joint(s) affected and is objectively confirmed, such as by
swelling, muscle spasm, or satisfactory evidence of painful
motion; (2) when objectively confirmed limitation of motion
is not sufficient to warrant a compensable schedular
evaluation, 10 percent is assigned for each major joint or
minor joint group affected; (3) when there is no limitation
of motion, 10 or 20 percent will be assigned depending on the
degree of incapacity, if there is x-ray evidence of 2 or more
major joints or minor joint groups.  See Hicks v. Brown, 8
Vet. App. 417, 420 (1995).

A precedent opinion from VA's Office of General Counsel
(General Counsel) held that a veteran who has arthritis and
instability of the knee may be rated separately under Codes
5003 and 5257.  However, it was noted that a separate rating
must be based on additional disability.  Where a veteran did
not at least meet the criteria for a zero percent rating
under either Diagnostic Code 5260 or 5261, there was no
additional disability for which a rating might be assigned.
VAOPGCPREC 23-97. See Esteban v. Brown, 6 Vet. App. 259, 262
(1994).

Regarding Diagnostic Code 5257, during the March 2002 VA
examination, the examiner did not indicate that the veteran
experienced recurrent subluxation.  Therefore, consideration
under Diagnostic Code 5257 is improper for application in the
veteran's case.  Consideration under Diagnostic Code 5260 is
also improper, as VA examination noted that flexion was 90
degrees, bilaterally.  Application of Diagnostic Code 5261 is
not warranted because on VA examination, extension was not
limited or restricted.

Degenerative joint disease of both the right and left knee is
currently rated as 10 percent disabling under Diagnostic Code
5010.  In the Board's opinion, the objective medical evidence
of record does not support a higher disability rating.  The
VA examination revealed crepitus bilaterally with tenderness
on palpation; there was objective medical evidence of pain on
motion; and x-rays of the veteran's knees do show mild
degenerative joint disease.  The examination also revealed
objective medical evidence of range of motion limited by pain
and slight limitation of flexion.

A 10 percent evaluation is appropriate under Diagnostic Code
5010 for a major joint affected by limitation of motion due
to arthritis.  Pain on motion has been confirmed on VA
examination, dated in March 2002.  Accordingly, the Board
finds the current 10 percent disability rating most
appropriate for degenerative joint disease of the right knee
and the left knee, based on limitation of motion.
Consideration of functional loss due to pain has been
considered in arriving at this evaluation.  See 38 C.F.R. ��
4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204- 07.

Further, the Board finds that no higher evaluation can be
assigned pursuant to any other potentially applicable
diagnostic code.  See Butts v. Brown, 5 Vet. App. 532, 539
(1993).

Extraschedular Rating

The Board has considered extraschedular rating.  In an
exceptional case where the schedular standards are found to
be inadequate, the RO is authorized to refer the case to the
Chief Benefits Director or the Director, Compensation and
Pension Service for assignment of an extraschedular
evaluation commensurate with the average earning capacity
impairment.  38 C.F.R. � 3.321(b)(1).  The criterion for
referral is a finding that the case presents an exceptional
or unusual disability picture with related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical application of
regular schedular standards.  Although the Board is precluded
by regulation from assigning an extraschedular rating under
38 C.F.R. � 3.321(b)(1) in the first instance, the Board is
not precluded from considering whether the case should be
referred to the Director of VA's Compensation and Pension
Service.  In this case, the evidence of record does not
indicate that the veteran is frequently hospitalized for his
disability and there is no indication that the disability
markedly interferes with employment.  For this reason, the
Board finds no basis to refer this case for consideration of
an extraschedular rating.

Therefore, based on the objective medical findings, the Board
concludes that the preponderance of the evidence is against
the claim.  The benefit-of-the-doubt doctrine does not apply;
therefore, the claim for initial increased ratings, in excess
of 10 percent, for degenerative joint disease of the right
knee and the left knee must be denied.  See Gilbert v.
Derwinski, 1 Vet. App 49 (1990).

ORDER

Entitlement to an initial increased rating in excess of 10
percent for degenerative joint disease for the right knee is
denied.

Entitlement to an initial increased rating in excess of 10
percent for degenerative joint disease for the left knee is
denied.

REMAND

As discussed above, the Veterans Claims Assistance Act of
2000 (VCAA), now codified at 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002), is applicable to this
appeal.

In February 2001, VA received the veteran's claim for
entitlement to service connection for degenerative disc
disease of the thoracic spine.  On VA examination, dated in
March 2002, the veteran related to the examiner that he was
in receipt of Social Security disability benefits due to
arthritis of his thoracic spine.

The file does not reflect that the veteran's records
underlying the administration's award have been obtained.  38
U.S.C.A. � 5103A(b)(1) (West 2002); Murinscak v. Derwinski, 2
Vet. App. 363 (1992).  Therefore, under the circumstances of
this case, VA will not be able to completely satisfy the duty
to notify and assist the veteran in substantiating his claim
until the Social Security Administration records are obtained
by the RO, as proceeding with the adjudication of this appeal
without review of all relevant evidence may pose a risk of
prejudice to the veteran.  See, e.g., Bernard v. Brown, 4
Vet. App. 384 (1993).

Accordingly, this case is REMANDED for the following:

1.  The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
�� 5102, 5103, and 5103A (West 2002) are
fully complied with and satisfied.  See
also 38 C.F.R. � 3.159 (2003).

2.  The veteran should be contacted and
requested to provide the names, addresses
and approximate dates of treatment for
any health care providers, VA or non-VA
who have treated him for degenerative
disc disease of the thoracic spine.
After securing the necessary releases,
the RO should obtain copies of those
records that are not already in the
claims file and have them associated with
the claims folder.  All attempts to
procure records should be documented in
the file.  If the RO cannot obtain
records identified by the veteran, a
notation to that effect should be
inserted in the file.  The veteran and
his representative are to be notified of
unsuccessful efforts in this regard.

3.  The RO should obtain from the Social
Security Administration the records
pertinent to the veteran's claim for
Social Security disability benefits as
well as the medical records relied upon
concerning that claim.  Once those
records are received, they are to be
associated with the claims folder.

4.  The RO must review the claims file
and ensure that there has been full
compliance with all notification and
development action required by 38
U.S.C.A. �� 5102, 5103, and 5103A (West
2002) and 38 C.F.R. � 3.159 (2003), and
that all requested development has been
completed (to the extent possible) in
compliance with this REMAND.  If any
action is not undertaken, or is taken in
a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).

5.  Thereafter, the RO should
readjudicate this claim.  The RO is
advised that it is to make a
determination based on the law and
regulations in effect at the time of the
decision, to include any further changes
in VCAA and any other applicable legal
precedent.  If the benefits sought on
appeal remain denied, the veteran and his
representative should be provided a
supplemental statement of the case
(SSOC).  The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal.  The
requisite period of time should be
allowed for response.

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 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).

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

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA
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CONTINUED

Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

VA
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judge_norm: U R POWELL

text:
Citation Nr: 0423000
Decision Date: 08/20/04    Archive Date: 08/24/04

DOCKET NO.  03-11 290	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for left ear tinnitus.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Robert E. P. Jones, Counsel

INTRODUCTION

The veteran served on active duty from February 1941 to
October 1945.

This matter is before the Board of Veterans' Appeals (Board)
on appeal from a January 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Las Vegas, Nevada.

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

REMAND

The veteran asserts that he is entitled to service connection
for left ear tinnitus.  The veteran testified before the
undersigned Veterans Law Judge that he had been an anti-
aircraft gunner in World War II.  He asserted that when his
island was attacked by Japanese bombers he was exposed to the
noise of his 90-millimeter anti-aircraft gun for an extended
period.  The veteran reported that he noticed ringing in his
ear after the raid was over, and that he had experienced the
ringing ever since.

The Board notes that attempts to obtain the veteran's service
medical records were unsuccessful and the records are assumed
to have been destroyed by a fire at the National Personnel
Records Center (NPRC) in 1973.  The Board also notes that the
duty to assist obligations of VA are heightened when the
service medical records have been destroyed in the 1973 NPRC
fire, as is the case here.  O'Hare v. Derwinski, 1 Vet. App.
365, 367 (1991).  See Moore v. Derwinski, 1 Vet. App. 401
(1991) (duty to assist is particularly great in light of the
unavailability of service medical records).

The veteran's DD-214 confirms that the veteran was an anti-
aircraft gunner during World War II.

The Board finds that the duty to assist in this case requires
that the veteran be provided VA ear and audiological
examinations.

The veteran has provided the name of a doctor who treated him
immediately following service for his claimed left ear
disability.  While there appears to be little chance that
records of such treatment are still available, nevertheless,
a reasonable attempt should be made to obtain such records.

In light of these circumstances, the case is REMANDED to the
RO for the following action:

1.  The RO should contact the veteran and
request the names, addresses, and dates of
treatment or examination, of all health
care providers who have treated or examined
him for his claimed left ear tinnitus.  He
should be asked if he has any further
information about his treatment by Dr. Munn
in Detroit, Michigan (referred to in his
June 2002 claim).  After obtaining any
necessary authorization, the RO should
request copies of the records of such
identified treatment or examinations.  All
records obtained should be associated with
the veteran's claims file.

2.  When the above action has been
accomplished, the veteran should be
scheduled for VA audiological and ear
examinations.  The examiners should express
an opinion as to whether it is at least as
likely as not that the veteran has tinnitus
that is related to the veteran's military
service as an anti-aircraft gunner.  A
rationale for all opinions offered should
be furnished.

3.  The RO should then review the claims
file to ensure that all of the above
requested development has been completed.
In particular, the RO should ensure that
the VA examination reports comply fully
with the above instructions, and if they do
not, the RO should take corrective action.
See Stegall v. West, 11 Vet. App. 268
(1998).

4.  The RO should readjudicate the
veteran's claim considering all the
evidence of record.  If the benefit sought
on appeal is not granted to the veteran's
satisfaction, he should be furnished a
supplemental statement of the case and be
given an appropriate opportunity to respond
thereto.

Thereafter, the case should be returned to the Board, if
otherwise in order.  By this remand, the Board intimates no
opinion as to any ultimate outcome warranted.  The appellant
need take no action until he is otherwise notified by the RO.

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

_________________________________________________
	U. R. POWELL
	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) (2003).


judge_norm: MARK D HINDIN

text:
Citation Nr: 0424000
Decision Date: 08/30/04    Archive Date: 09/07/04

DOCKET NO.  03-07 423	)	DATE
	)
	)

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

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen a claim for service connection for a low back
disability.

2.  Whether new and material evidence has been submitted to
reopen a claim for service connection for a left knee
disability.

3.  Entitlement to an effective date earlier than November
15, 2000 for the grant of service connection for tinnitus.

4.  Entitlement to an effective date earlier than November
15, 20000 for the grant of a 10 percent rating for bilateral
hearing loss.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel

INTRODUCTION

The veteran served on active duty from January 1980 to August
1992.

This appeal comes before the Board of Veterans' Appeals
(Board) from an August 2001 rating decision of the Columbia,
South Carolina Regional Office (RO) of the United States
Department of Veterans' Affairs (VA).  In that decision, the
RO denied the veteran's requests to reopen claims for service
connection for a low back disability and a left knee
disability.

In the August 2001 rating decision, the RO granted service
connection for tinnitus, effective November 15, 2000.  Also
in that rating decision, the RO increased the disability
rating for bilateral hearing loss from 0 percent to 10
percent, effective November 15, 2000.  In December 2001, the
veteran wrote that he disagreed with the effective date of
November 15, 2000 for the grant of service connection for
tinnitus and for the increased rating for hearing loss.  The
RO has not issued a statement of the case in response to the
veteran's notice of disagreement with those issues.  The two
effective date issues must be remanded to the RO for the
issuance of a statement of the case.  38 U.S.C.A. � 7105; see
Manlincon v. West, 12 Vet. App. 238 (1999).

Reopened claims for service connection for low back and left
knee disabilities, and issues of earlier effective dates for
service connection for tinnitus and for a compensable rating
for hearing loss, are addressed in the REMAND portion of the
decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  The veteran did not appeal an April 1993 rating decision
denying service connection for a low back disorder described
as a strain.

2.  Evidence added to the record since the April 1993 denial
of service connection for a low back disorder, is so
significant that it must be considered in order to fairly
adjudicate the claim.

3.  The veteran did not appeal an April 1993 rating decision
denying service connection for a left knee disability.

4.  The veteran did not appeal a March 1996 rating decision
denying reopening of a claim for service connection for a
left knee disability.

5.  Evidence added to the record since March 1996, is so
significant that it must be considered in order to fairly
decide the claim for service connection for a left knee
disability.

CONCLUSIONS OF LAW

1.  The April 1993 rating decision denying service connection
for a low back disorder is final.  38 U.S.C.A. � 7105 (West
2002).

2.  Evidence submitted since the April 1993 rating decision
is new and material to the veteran's claim for service
connection for a low back disorder.  38 U.S.C.A. �5108 (West
2002); 38 C.F.R. � 3.156 (2001).

3.  The April 1993 rating decision denying service connection
for a low back disorder, and the March 1996 rating decision
denying reopening of a claim for service connection for a
left knee disorder, are final.  38 U.S.C.A. � 7105.

4.  Evidence submitted since the March 1996 rating decision
is new and material to the veteran's claim for service
connection for a left knee disorder.  38 U.S.C.A. �5108;
38 C.F.R. � 3.156 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Request to Reopen Claims for Service Connection for Disorders
of the Low Back and Left Knee

The Veterans Claims Assistance Act (VCAA) was enacted on
November 9, 2000.  Among other things, the VCAA eliminated
the well-grounded-claim requirement and modified the
Secretary's duties to notify and assist claimants.  Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. 106-419, 114
Stat. 1828 (Nov. 9, 2000) (codified at 38 U.S.C.A. �� 5100,
5102, 5103, 5106, 5103A, 5107, 5126) and amended by Pub. L.
108-183, 117 Stat. 2651 (Dec. 16, 2003).

The United States Court of Appeals for Veterans Claims
(Court) has also concluded that the VCAA was not applicable
where the appellant was fully notified and aware of the type
of evidence required to substantiate his claims and that no
additional assistance would aid in further developing his
claims.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).
When there is extensive factual development in a case, and
there is no reasonable possibility that any further
assistance would aid the appellant in substantiating his
claim, VCAA does not apply.  Wensch v. Principi, 15 Vet App
362 (2001); Dela Cruz; see also 38 U.S.C.A. � 5103A(a)(2)
(Secretary not required to provide assistance "if no
reasonable possibility exists that such assistance would aid
in substantiating the claim").

In view of the Board's favorable decisions, further
assistance is unnecessary to aid the appellant in
substantiating the claims decided in this decision.

In 1992, the veteran filed a claim for service connection for
disorders of the low back and left knee.  In an April 1993
rating decision, the RO denied service connection for those
disorders.  The veteran did not file a notice of disagreement
with that decision.

A rating decision becomes final when a claimant does not file
a notice of disagreement within one year after the decision
is issued.  38 U.S.C.A. � 7105.  Because the veteran did not
file a notice of disagreement with the April 1993 rating
decision, that decision became final.

In February 1996, the veteran submitted a request to reopen
the claim for service connection for a left knee disability.
In a March 1996 rating decision, the RO denied the request to
reopen the claim.  The veteran did not file a notice of
disagreement with the March 1996 rating decision, and that
decision became final.

In November 2000, the veteran submitted a request to reopen
the claim for service connection for a low back disorder.  In
June 2001, he submitted a request to reopen the claim for
service connection for a left knee disorder.

A final decision on a claim that has been denied shall be
reopened if new and material evidence with respect to that
claim is presented or secured.  38 U.S.C.A. � 5108.  The
Court has ruled that, if the Board determines that new
material evidence has been submitted, the case must be
reopened and evaluated in light of all the evidence, both new
and old.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

In 2001, VA revised the regulations pertaining to reopening
previously disallowed claims by submitting new and material
evidence.  66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (codified
at 38 C.F.R. � 3.156(a) (2003)).  The new regulation only
applies to claims made on or after August 29, 2001.  66 Fed.
Reg. 45,620 (Aug. 29, 2001).

As the veteran's requests to reopen his low back and left
knee claims were received before August 29, 2001, the older
version of the regulation applies.  Under that version, new
evidence means existing evidence not previously submitted to
agency decision makers which bears directly and substantially
upon the specific matter under consideration, and which is
neither cumulative nor redundant.  New evidence may be
considered material if the new evidence, by itself or in
connection with evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claim.  38 C.F.R. � 3.156 (2001).

In order to reopen a previously and finally disallowed claim,
there must be new and material evidence presented or secured
since the time that the claim was finally disallowed on any
basis (not only since the time that the claim was last
disallowed on the merits).  Evans v. Brown, 9 Vet. App. 273
(1996).

The April 1993 rating decision is the only final disallowance
of the veteran's claims for service connection for a low back
disorder.  Therefore, the Board will consider whether new and
material evidence regarding that claim has been submitted
since the April 1993 decision.  There were final
disallowances of the left knee claim in April 1993 and March
1996.  The Board will consider whether new and material
evidence regarding the left knee claim has been submitted
since the March 1996 decision.

Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R.
� 3.303 (2003).

Low Back Disability

The evidence regarding the low back disability that was
associated with the claims file prior to the April 1993
rating decision included service medical records and the
report of a VA medical examination in 1992.  The veteran's
service medical records reflect that he was seen for low back
pain in 1984, 1987, 1989, 1990, and in February, June, and
August 1991.  The onset of pain often followed physical
activity such as sports or lifting heavy objects.  Muscle
spasm was noted on some of the occasions.  X-rays taken in
February 1991 showed diminished disc space at L4-L5.

On VA examination in October 1992, the veteran reported
having intermittent low back pain.  His back was not painful
on the day of the examination.  The impression was
intermittent mechanical low back pain.

The RO denial was based on its conclusion that the low back
strains identified in service had resolved without any
residuals

The evidence regarding the low back disability that has been
added to the claims file since the April 1993 rating decision
includes private and VA medical records, and the veteran's
testimony at a hearing at the RO in January 2004.  Private
medical records show that the veteran was seen in 1995 for
low back pain after lifting something heavy.  X-rays taken at
a VA facility in 2001 showed narrowing of disc spaces at L4-
L5 and L5-S1.  At his January 2004 hearing, the veteran
reported that he had experienced episodes of low back pain
during service, and that such episodes had also occurred
since his separation from service.

The evidence that was available prior to the April 1993
rating decision did not show any low back symptoms other than
pain after separation from service.  The evidence that has
been added shows for the first time since service, X-rays
findings of disc space narrowing.  The new evidence contains
the first objective evidence of a back disability since
service.  It is so significant that it must be considered in
order to fairly adjudicate the service connection claims.
The evidence is new and material; therefore, the Board
reopens the claim.

Left Knee

The evidence regarding the left knee disability that was
associated with the claims file prior to the March 1996
rating decision included service medical records and the
report of the 1992 VA examination.  During service, the
veteran was seen in December 1988 for pain in both knees with
marching or running.  In April 1992, he sought treatment for
left knee pain after falling on stairs.  He had follow-up
treatment in May 1992.  On VA examination in October 1992,
the veteran reported having daily pain in his left knee.  On
examination, the knee was stable, and did not have effusion.

The evidence regarding the left knee disability that has been
added to the claims file since the March 1996 rating decision
includes VA medical records and testimony from the January
2004 hearing.

On VA examination in January 2001, the veteran reported that
his knee occasionally gave way, but an examination of the
knee was essentially normal, and X-rays were interpreted as
showing no "significant" arthritis or other abnormalities.
However, on VA outpatient treatment in May 2001, an
examination revealed grinding in the left knee.

At the hearing, the veteran reported that he had continued to
have intermittent pain in his left knee after the fall during
service.

The 2001 treatment note contains the initial post-service
finding of an abnormality on examination.  The veteran's
report of post-service episodes of the knee giving way is
also new.  The 1992 examination report did not include any
findings of abnormality in the knee.  At that time the only
reported symptom was pain.

The newly received evidence is so significant that it must be
considered to decide the claim for service connection for a
left knee disability.  It meets the standard to be considered
new and material.  Therefore, the left knee claim is
reopened.

ORDER

New and material evidence having been received, the claim for
service connection for a low back disability is reopened.

New and material evidence having been received, the claim for
service connection for a left knee disability is reopened.

REMAND

Under the VCAA, VA is obliged to provide an examination when
the record contains competent evidence that the claimant has
a current disability or signs and symptoms of a current
disability, the record indicates that the disability or signs
and symptoms of disability may be associated with active
service; and the record does not contain sufficient
information to make a decision on the claim.  38 U.S.C.A.
� 5103A(d) (West 2002).  The evidence of a link between
current disability and service must be competent.  Wells v.
Principi, 326 F.3d 1381 (Fed. Cir. 2003).

In the case of both the low back and the left knee claims,
the service medical records document symptoms during service.
The report of grinding in the left knee, and X-ray evidence
of disc space narrowing constitute competent evidence of a
current disability.  The veteran's report of a continuity of
symptoms since service constitutes competent evidence that
the current disabilities may be related to service.  See
Charles v. Principi, 16 Vet App 370 (2002).  A medical
opinion is needed to determine whether any current back or
left knee disability is related to service.  Id.  Although,
the veteran was afforded an examination of the left knee in
January 2001, that examination took place prior to the
finding of grinding and did not contain a conclusion as to
whether the veteran had a current left knee disability.

Because the veteran has submitted a notice of disagreement
with regard to the issues of earlier effective dates for the
grant of service connection for tinnitus and the grant of a
10 percent rating for bilateral hearing loss, the case must
be remanded in part to issue a statement of the case on those
issues.

Accordingly, this case is REMANDED for the following:

1.  The AMC or RO should schedule the
veteran for a VA examination to address
the likely etiology of any current
disorders of the low back and left knee.
The veteran's claims file should be
provided to the examiner for review.  The
examiner should provide opinions in
response to the following questions:

A. Is it at least as likely as not (50
percent probability or more) that any
current low back disorder is the result
of a disease or injury in service,
including the episodes of strain and X-
ray evidence of disc space narrowing,
noted during service?

B. Is it at least as likely as not that a
current left knee disability is related
to the April 1992 injury, or another
disease or injury noted during service?

The examiner should provide a rationale
for the opinions.

2.  The AMC or RO should issue a
statement of the case with regard to the
issues of entitlement to earlier
effective dates for the grant of service
connection for tinnitus and the grant of
a 10 percent rating for bilateral hearing
loss.  Only if the veteran submits a
timely substantive appeal will these
issues be further considered by the
Board.

3.  The AMC or RO should re-adjudicate
the claims for service connection for low
back and left knee disability.  If either
benefit remains denied, a supplemental
statement of the case should be issued.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The veteran has the right to submit
additional evidence and argument on the matter that 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).

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

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

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judge_norm: THOMAS J DANNAHER

text:
Citation Nr: 0425000
Decision Date: 09/10/04    Archive Date: 09/16/04

DOCKET NO.  01-08 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUE

Entitlement to waiver of recovery of overpayment of VA
pension benefits in the original amounts of $4,086.00 and
$5,346.00 (for a combined total of $9,432.00).

REPRESENTATION

Appellant represented by:	To be determined

ATTORNEY FOR THE BOARD

M. A. Herman, Counsel

INTRODUCTION

The veteran had active military service from February 1964 to
January 1967.

This matter comes before the Board of Veterans' Appeals
(Board) from decisions by the Nashville, Tennessee,
Department of Veterans Affairs (VA) Regional Office (RO)
Committee on Waivers and Compromises, which denied
entitlement to the two waivers sought on appeal.

The Board issued a decision in June 2003 that determined that
waiver of recovery of the overpayments, which had been
properly created, was not warranted.   The veteran appealed
this decision.  In March 2004, the United States Court of
Appeals for Veterans Claims (Court) granted a joint motion of
the parties and vacated the Board's June 2003 decision.

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

REMAND

In consideration of the March 2003 Joint Motion for Remand
and an examination of the claims folder, the Board finds the
case is not yet ready for appellate review.  The case is
REMANDED to the RO for the following action:

1.  Contact the veteran to determine
whether he wishes to be represented in
this appeal by Tony M. McGuire, Attorney
at Law, or the American Legion.  The
veteran should be furnished a copy of VA
Form 21-22, Appointment of Veterans
Service Organization as Claimant's
Representative, and VA Form 21-22a,
Appointment of Individual As Claimant's
Representative.  The veteran should be
asked to complete and submit the
appropriate form.

2.  The veteran should be re-issued copies
of the June 2001 and August 2001
Statements of the Case (SOC).  The RO
should ensure that a complete of the June
2001 SOC (all six original pages) is
furnished to the veteran.  The RO should
also ensure that the SOCs are sent to the
veteran's most recent mailing address,
which, as of March 2004, was 1161
Armstrong Avenue, Apartment 223-B,
Knoxville, TN, 37917.  Copies of the SOCs
should also be sent to the representative
or attorney established by the veteran.

3.  If additional evidence is received
from the veteran and the benefits sought
on appeal remain denied, the veteran and
his representative, if any, should be
provided a supplemental statement of the
case (SSOC).  The SSOC must contain notice
of all relevant actions taken on the claim
for benefits, to include a summary of all
evidence received since the June and
August 2001 Statements of the Case and
discussion of all pertinent laws and
regulations, including, but not limited to
the VCAA.  Allow an appropriate period of
time for response.

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 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).

_________________________________________________
	THOMAS J. DANNAHER
	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) (2003).