judge_norm: CHARLES E HOGEBOOM

benefit: reduction

condition: headache

text:
Decision Date: 08/07/95				Archive Date:
08/04/95
DOCKET NO.  93-18 893	)	DATE
	)

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

THE ISSUE

Entitlement to restoration of a 100 percent rating for
epilepsy, grand mal, with headaches from March 1, 1990, to
June 17, 1991.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Christine E. Puffer, Associate Counsel
INTRODUCTION

The veteran had active service from March 1973 to July 1976.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1989 rating decision of
the Department of Veterans Affairs (VA) Houston, Texas,
Regional Office (RO).

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in essence, that the RO was incorrect
in reducing his rating for epilepsy, grand mal, with
headaches.  He maintains that this condition never improved,
but, rather, had worsened over the years.  He reports that
he has been receiving 100 percent disability benefits from
the Social Security Administration since 1976, and had been
found to be unemployable by that agency.  Although a 100
percent total rating based on individual unemployability due
to service connected disability has been granted, the
veteran is seeking entitlement to a 100 percent rating for
the interim period between when his rating was reduced and
he was granted a total rating for unemployability.  It is
requested that all reasonable doubt be resolved in favor of
the veteran.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file.  Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the evidence supports the
restoration of a 100 percent evaluation for the period from
March 1, 1990, to June 17, 1991, for epilepsy, grand mal,
with headaches.

FINDINGS OF FACT

1.  All evidence necessary for an equitable adjudication of
the instant claim has been obtained by the RO.
2.  By rating decision of December 1989, the RO reduced the
veteran's evaluation for epilepsy, grand mal, with
headaches, from 100 percent, which had been in effect since
July 1976, to 60 percent, effective from March 1, 1990.

3.  The RO, by its December 1989 rating action, did not take
into account regulations pertaining to the stabilization of
disability evaluations when it reduced the evaluation for
the veteran's epilepsy, grand mal, with headaches.

CONCLUSION OF LAW

Restoration of a 100 percent evaluation for the veteran's
epilepsy, grand mal, with headaches, effective from March 1,
1990, to June 17, 1991, is warranted.  38 U.S.C.A. �� 1155,
5107 (West 1991); 38 C.F.R. �� 3.343, 3.344, 4.1, 4.2,
4.124a, Diagnostic Code 8910 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran was granted service connection for epilepsy,
grand mal, with headaches, rated as 100 percent disabling
pursuant to 38 C.F.R. � 4.124a, Diagnostic Code 8910, by
rating action of August 1976.  By rating decision of
December 1989, the veteran's rating was reduced from 100
percent to 60 percent, effective March 1, 1990, under 38
C.F.R. � 3.105(e).  Evidence reportedly reviewed in this
decision included a statement from a neurologist, an August
1989 VA neurology examination, as well as prior examination
reports.  It was noted that neurological examination had
always been within normal limits, and that at prior
examinations the veteran had inconsistently reported the
frequency of the seizures he suffered.  The decision
concluded that, considering all evidence of record, that the
severity of the veteran's service-connected disorder more
closely related to a 60 percent schedular evaluation.

The Board has reviewed the rating decision of December 1989,
as well as subsequent correspondence from the RO, the
statement of the case, and the evidence of record at the
time of the noted rating decision to determine whether the
RO considered the applicable regulations with respect to the
reduction of ratings for disabilities such as epilepsy.  In
cases involving reduction of a rating for such diseases,
specific requirements must be met prior to any reduction.
Brown v. Brown, 5 Vet.App. 413, 419 (1993).  Because the
veteran's rating reduction was from a total schedular rating
that had been in effect for more than five years, 38 C.F.R.
� 3.343 and 38 C.F.R. � 3.344(a) and (b) were for
application.  These regulations together provide that,
unless all the evidence of record establishes that a
veteran's condition has undergone sustained material
improvement, a total disability rating that has existed for
five years or more may not be reduced on any one
examination.  Dofflemyer v. Derwinski, 2 Vet.App. 277, 280
(1992).  A rating action that fails to taking into account
applicable statutory or regulatory commands is void ab
initio.  Schafrath v. Derwinski, 1 Vet.App. 589, 595-6
(1991).

The United States Court of Veterans Appeals (Court) has
cited four requirements that must be satisfied prior to a
rating reduction: the entire records of examinations and
medical-industrial history must be reviewed to ascertain
whether the recent examination is full and complete; the
examination must be at least as full and complete as that on
which payments were initially authorized or continued;
ratings on account of diseases subject to temporary and
episodic improvement, including epilepsy, will not be
reduced on the basis of any one examination, except where
all evidence of record clearly warrants the conclusion that
sustained improvement has been demonstrated; and, although
material improvement in the disability is clearly reflected,
the rating action will consider whether the evidence makes
it reasonably certain that the improvement will be
maintained under the ordinary conditions of life.  38 C.F.R.
�� 3.343(a), 3.344(a); Brown, 5 Vet.App. at 419.  A finding
of material improvement must be supported by a comparison of
the veteran's previous and current condition.  Karnas v.
Derwinski, 1 Vet.App. 308, 310-11 (1991).

Although the December 1989 rating action indicates that all
evidence of record was considered, the factual recitation
focused almost exclusively on an August 1989 VA neurological
examination.  The only references to other evidence
suggested that the veteran had inconsistently reported the
frequency of his seizures, that neurological examination was
always within normal limits, and that there was no real
evidence to substantiate seizures at all.  No other
evidence, such as the history of the veteran's disability or
the circumstances surrounding the veteran's alleged
improvement, was cited or discussed.  As such, the record
provides no basis to conclude that the RO determined that
the veteran had demonstrated material improvement in his
service-connected disorder.

As noted, the December 1989 adverse rating action states
that there was no real evidence to substantiate the presence
of seizures at all.  However, the Board observes that the
claims folder contains a notation from the RO indicating
that the examination reports were of limited use as the
veteran could not be expected to have a seizure during the
examination.  In a November 1989 response to an RO request
for VA hospitalization for observation of the veteran to
determine whether he actually suffered from seizures, the VA
neurology clinic director reported that a hospitalization
would accomplish little unless prolonged (lasting weeks to
months) and, even then, it would be impossible to exclude a
diagnosis of epilepsy.  The necessity of ascertaining the
true nature and frequency of epileptiform attacks under the
ordinary conditions of life via the use of neurological
observation and consistent lay testimony is emphasized in
the VA's rating schedule.  38 C.F.R. � 4.121.

The August 1989 VA neurology examination report itself
states that the only available VA records were current
through 1976.  There is no indication that the veteran's
claims folder was reviewed, despite the fact that the
veteran had an extensive history of medical treatment.  No
history of the veteran's disability was recited, although
some of the veteran's historical treatment records were
available.  As each disability must be viewed in relation to
its history and examination reports must be interpreted in
light of the disability's entire recorded history, the
examination report itself was incomplete and inadequate for
rating purposes.  See 38 C.F.R. � 4.1, 4.2.  Given that this
inadequate examination report appears to have been reviewed
in a vacuum, or at least without apparent comparison to
historical medical data, the rating action did not satisfy
the requirement that an actual change, much less that
material improvement, in the veteran's neurological
condition had occurred prior to modifying his compensation
rating, in violation of 38 C.F.R. �� 3.343, 3.344, 4.13.

Where, as here, there is doubt as to whether a veteran's
condition has materially improved, the rating should be
continued pending reexamination.  See Kitchens v. Brown, No.
93-256, slip op. at 7 (U.S. Vet. App. Jan. 19, 1995).  The
rating decision reducing the veteran's evaluation was based
on evidence garnered from a single examination that was,
itself, deficient.  The RO did not record whether material
improvement has been demonstrated and whether the evidence
made it reasonably certain that such improvement would be
maintained under the ordinary conditions of life.  There
was, for example, no indication that the veteran had
regained employability.  As such, the rating reduction was
rendered in violation of 38 C.F.R. �� 3.343, 3.344.
Dofflemeyer v. Derwinski, 2 Vet.App. 277, 280 (1992); see
also Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990).

Further, it does not appear that the RO complied with VA
regulations in issuing the adverse December 1989 rating
decision, despite citing the relevant regulation.  Where, as
here, the RO determines that a rating reduction is
appropriate, the rating agency should issue a rating
proposing the reduction prior to issuing a second rating
action implementing the reduction.  The RO in this case
issued a single rating action reducing the veteran's rating.
See 38 C.F.R. � 3.105(e).  Although the veteran was informed
that he had 60 days to submit additional evidence, and such
evidence was submitted, the Board is unable to determine
from the reduction notification letter whether the veteran
was informed of his right to a predetermination hearing as
required under 38 C.F.R. � 3.105(h).

The statement of the case issued by the RO in April 1990 did
not include any discussion of the application of 38 C.F.R.
�� 3.343, 3.344.  The VA is required to follow its own
regulations.  Browder v. Derwinski, 1 Vet.App. 204, 205
(1991).  In view of the totality of the evidence of record,
the rating determination of December 1989 must be deemed
void ab initio as not in accordance with law, requiring
retroactive reinstatement of the veteran's 100 percent
evaluation from March 1, 1990, to June 17, 1991, the period
of time for which a total rating has not otherwise been
restored.  Brown v. Brown, 5 Vet.App. 413, 422 (1993);
Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991).

ORDER

Restoration of a 100 percent evaluation for the veteran's
epilepsy, grand mal, with headaches, is granted, effective
from March 1, 1990, to June 17, 1991.

		_____________________________________________
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988.  Veterans' Judicial Review Act, Pub. L.
No. 100-687, � 402 (1988).  The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.

- 2 -


series: legacy

judge_norm: GARY L GICK

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
Decision Date: 09/28/95		Archive Date: 01/17/96

DOCKET NO.  93-21 522	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for an anxiety disorder.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

John J. Crowley, Associate Counsel

REMAND

The veteran served on active duty from May 1965 to October
1968.  This case is currently before the Board of Veterans'
Appeals (Board) on appeal from a December 1992 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO).

At a hearing held before the undersigned in September 1993,
the representative for the veteran requested that he be
examined to determine the extent of his current psychiatric
disability.

The VA has a duty to assist a veteran in the development of
facts pertinent to well-grounded claims.  38 U.S.C.A.
� 5107(a) (1994).  The United States Court of Veteran's
Appeals (Court) has held that the duty to assist includes the
duty to obtain pertinent records and to obtain thorough and
contemporaneous VA examinations, examinations by specialists
who have access to the recorded history.  Counts v. Brown, 6
Vet.App. 473 (1994); Hyder v. Derwinski, 1 Vet.App. 221
(1991); Greene v. Derwinski, 1 Vet.App. 121 (1991); Littke v.
Derwinski, 1 Vet.App. 90 (1990).

In Colvin v. Derwinski, 1 Vet.App. 171 (1991), it was held
that the Board may not substitute its own judgment for
independent medical evidence.  The undersigned believes that
additional medical information is necessary to make a fully
informed decision on the veteran's current claim.
Accordingly, the case is REMANDED for the following
development:

1.  The veteran should be asked to
identify all sources of treatment for his
psychiatric disorder.  The RO should
obtain treatment records from all sources
identified which are not already of
record.

2  The RO should schedule the veteran for
VA psychiatric examination.  The claims
folder should be made available to the
examiner for review in conjunction with
the examination of the veteran.  The
examiner should be specifically requested
to review the historical data in the
claims folder, to include not only the
prior examination reports and clinical
records, but also the veteran�s letters
and testimony, in order to obtain a true
picture of the progress of his
psychiatric disorder.  The examiner
should also elicit a detailed history of
the onset of psychiatric symptoms from
the veteran.  The examiner should provide
an opinion as to the etiology of the vet-
eran's psychiatric disability, to include
an opinion as to whether it is at least
as likely as not that this disability is
related to the veteran's active service.
The examiner should indicate the basis
for the opinion and fully explain the
rationale for the opinion.

Thereafter, the RO should review the veteran's claim or
claims.  If the benefits sought on appeal are not granted to
the veteran's satisfaction, the RO should issue a supple-
mental statement of the case.  The veteran and his
representative should be provided an opportunity to respond.
The case should then be returned to the Board for further
appellate consideration, if otherwise in order.

	GARY L. GICK
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a deter-
mination.  This proceeding has been assigned to an individual
member of the Board.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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)
(1994).
- 2 -


judge_norm: JACQUELINE E MONROE

disposition: denied

condition: cancer

text: New and material evidence not having been submitted to reopen the veteran’s claim for service connection for basal cell carcinoma, to include squamous cell carcinoma, the benefit sought on appeal is denied.

text:
Decision Date: 09/18/95		Archive Date: 01/17/96
DOCKET NO.  93-18 521	)	DATE
	)
	)

On appeal from the decision of the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida

THE ISSUE

Whether new and material evidence has been submitted to
reopen a claim for service connection for basal cell
carcinoma, to include squamous cell carcinoma.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

Nancy R. Kegerreis, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1955 to November
1962.

This matter comes before the Board of Veterans' Appeals
(Board) from a September 1991 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which denied entitlement to service
connection for basal cell carcinoma on the basis that new and
material evidence had not been presented to reopen the claim.
Subsequently, at the veteran�s request, the RO expanded the
issue to include squamous cell carcinoma.

During the course of this appeal, the veteran appears to have
raised the issue of a claim for entitlement to a total
disability rating due to individual unemployability or
pension, which has not been adjudicated.  This claim is
referred to the RO for development and adjudication.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, essentially, that his basal and
squamous cell carcinomas are either a part of his original,
service-connected, condition of melanoma or are secondary to
melanoma.  He states that he was stationed at an Air Force
base in Bermuda for 26 months, during which time he spent
half of his working hours outside in the hot sun, and that he
had not been exposed to intense sunlight either before or
after military service.  He adds that recent medical
discoveries reveal a �high plausibility� that solar exposure
damages a particular gene, resulting in a predisposition to
skin carcinoma later on in life.  Although he acknowledges
that his melanoma has not recurred, he believes that the same
solar exposure which caused the melanoma was also the causal
factor in the other types of skin carcinoma, which have
developed in recent years.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that new and material evidence to reopen the
claim for service connection for service connection for basal
cell carcinoma, to include squamous cell carcinoma, has not
been submitted.

FINDINGS OF FACT

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

2.  The RO denied service connection for basal cell carcinoma
in December 1980.  The veteran did not appeal the denial.

3.  The veteran attempted to reopen his claim in June 1991,
but the RO confirmed its initial denial in September 1991 and
September 1992.

4.  The evidence submitted in connection with the request to
reopen the claim is either duplicative of evidence already of
record at the time of the prior denial, or, where new, does
not bear directly and substantially on the matters under
appeal.

CONCLUSIONS OF LAW

1.  The RO�s unappealed December 1980 decision denying
service connection for basal cell carcinoma is final.
38 U.S.C.A. � 7105(c) (West 1991); 38 C.F.R. ��  20.302,
20.1103 (1994).

2.  Evidence received subsequent to the December 1980 RO
decision is not new and material, and the claim for service
connection for basal cell carcinoma, to include squamous cell
carcinoma, has not been reopened.  38 U.S.C.A. �� 5108, (West
1991); 38 C.F.R. � 3.156, 20 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board notes that the veteran's claim is well grounded
within the meaning of 38 U.S.C.A. � 5107(a) (West 1991).
That is, the Board finds that he has presented a claim which
is plausible.  The Board is also satisfied that all relevant
and available facts have been properly developed.  No further
assistance to the veteran is required to comply with the duty
to assist mandated by 38 U.S.C.A. � 5107(a).

I.  Background

The veteran has an extensive history of multiple skin cancers
throughout his adult life.  In June 1957, while in the
military, he was found to have an eosinophilic granuloma of
the bone in the right parietal area of the skull.  The tumor
was excised and the veteran given radiation therapy to the
operative site.  The residual skull defect was considered to
be minor and not disabling, and the veteran was found fit for
full duty.  In May 1962, also during the veteran�s military
service, a mole on the medial aspect of the left knee was
excised.  Although initial pathological reports were
controversial, it was eventually concluded that the diagnosis
should be malignant melanoma.  Four other suspicious skin
nodules were excised in August 1962 and reported as benign.

By rating decision of May 1963, the veteran was granted
service connection for a scar on the left thigh, post
operative removal of maligant melanoma, evaluated as
noncompensable, from December 1962.  Following receipt of the
Medical Board findings and proceedings of the Physical
Evaluation Board pertaining to the veteran, a June 1963
rating decision confirmed the prior decision.

Following service, in October 1973, the veteran had tumors
excised from his nose and upper eyebrow.  Pathological
diagnoses were (1) squamous cell carcinoma, Grade II, with
cutaneous horn formation, nose; and (2) basal cell carcinoma,
upper eyebrow.  In October 1980, the veteran was admitted to
the VA Medical Center in Tampa, Florida, where he underwent
excision of basal cell carcinoma of the left pinna, with full
thickness skin graft.

In December 1980, the RO considered the above-cited evidence
in adjudicating the veteran�s claim for an increased rating
for his service-connected skin condition.  However, it was
determined that there was no relationship between the basal
cell carcinoma of the left pinna then demonstrated and the
malignant melanoma of the left thigh which was removed in
1962.  Accordingly, the veteran�s status post excision of
basal cell carcinoma of the left pinna was deemed nonservice-
connected.  The veteran did not appeal that determination.

Evidence more recently associated with the veteran�s claims
folder reveals that the veteran had an anaplastic cancer
removed from his right temple, which was determined to be a
poorly differentiated squamous cell carcinoma.  Additionally,
he has been treated for a squamous cell cancer in the right
side of the neck, and a basal cell carcinoma of the right
nose.

II.  Analysis

The December 1980 rating decision which denied service
connection for a psychiatric disorder became final when the
veteran did not file a notice of disagreement within one year
of the date he was notified of the unfavorable determination.
See 38 U.S.C.A. � 7105(b)(1),(c) (West 1991); 38 C.F.R.��
20.302, 20.1103 (1994); Person v. Brown, 5 Vet.App. 449, 450
(1993).  Under governing law and regulations, the claim upon
which an unappealed RO decision is based may not be reopened
and reconsidered in the absence of new and material evidence.
38 U.S.C.A. � 5108 (West 1991); 38 C.F.R. �� 3.156(a) (1994).

New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with the evidence previously
assembled is so significant that it might be considered in
order to fairly decide the merits of the claim.
38 C.F.R. � 3.156 (1994); Cox v. Brown, 5 Vet.App. 95, 98
(1993).  In order for a claim to be reopened and the entire
record reviewed, the evidence must be "new" and "material."
38 U.S.C.A. � 5108 (West 1991).  See Manio v. Derwinski,
1 Vet.App. 140, 145 (1991).

In Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), the
United States Court of Veterans Appeals stated that new
evidence is not merely cumulative of other evidence on the
record.  To be material, evidence must be relevant and
probative.  Rule 401 of the Federal Rules of Evidence defines
relevant evidence as "[e]vidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence."  It must also be of
sufficient weight or significance such that there is a
reasonable possibility that the new evidence, in combination
with previous evidence, would change the outcome.  See, e.g.,
Yabut v. Brown, 6 Vet.App.79, 82 (1993).

The United States Court of Veterans Appeals has held that
when determining whether new and material evidence has been
submitted to warrant reopening under 38 U.S.C.A. � 5108,
consideration must be given to all of the evidence submitted
since the last final denial on the merits.  See Glynn v.
Brown, 6 Vet.App. 523, 529 (1994).  Accordingly, the Board
has reviewed all of the evidence submitted relevant to the
issue of service connection for basal cell carcinoma, to
include squamous cell carcinoma, since the December 1980 RO
decision.

As noted above, the evidence of record at the time of the
December 1980 denial consisted primarily of the veteran�s
service medical records, and the summary of a VA
hospitalization in October 1980 for excision of the basal
cell carcinoma of the left pinna with full thickness skin
graft.  None of those records contain any reference to basal
cell or squamous cell carcinoma, or indicate that a
relationship exists between either condition and the
malignant melanoma the veteran suffered in service.  Since
that time, the new evidence associated with the veteran�s
claims file includes a Social Security decision; numerous VA
and private medical treatment records; the veteran�s hearing
testimony and statements from him and his representative;
photographs; and newspapers articles and other published
materials.

For analysis purposes, the newly submitted evidence is
enumerated as follows:  (1) a discharge summary from
Wuesthoff Memorial Hospital, in Rockledge, Florida, dating
from April 14 to May 4, 1990, with attachments; (2) reports
of consultations, dated in November 1990 and March 1991, from
the Watson Clinic in Lakeland, Florida; (3) a memorandum,
dated in April 1991, to the Chief of Staff, VA Hospital,
Tampa, Florida, from the Assistant Chief, Dermatology
Section; (4) a letter, dated May 1991, to the Assistant
Chief, Dermatology Section, VA Hospital, Tampa, Florida, from
Steven A. Proper, M.D., Center for Dermatology and Skin
Surgery, Inc., Tampa, Florida; (5) a letter, dated in July
1991, to the VA outpatient clinic in Orlando, Florida, from
John S. Scott, M.D., Neurology Group of Central Florida,
Orlando, Florida; (6) a report of a VA disability evaluation
examination, dated in July 1991, from the VA Medical Center
in Orlando, Florida, with attachments, including a medical
history from the veteran; (7) a hospital discharge summary,
dating from July 17 to 24, 1991, from the James A. Haley VA
Hospital in Tampa, Florida; (8) a letter, dated in July 1991,
to the Assistant Chief, Dermatology Section, VA Hospital,
Tampa, Florida, from Steven A. Proper, M.D.

Additional records received are as follows:  (9) a letter,
dated in June 1992, to the veteran from Douglas E. Brash,
Associate Professor of Therapeutic Radiology, Yale
University; (10) Vocational Assessment, dated in June 1992,
from Patrick P. Murphy, Ph.D., Palm Coast, Florida; (11)
Decision, dated in August 1992, from the Social Security
Administration, Office of Hearings and Appeals; (12)
radiographic test reports, dated in September and October
1992, from the Melbourne Diagnostic Services, Melbourne,
Florida; (13) a pathology report, dated in October 1992 from
Holmes Regional Medical Center, Inc., Melbourne, Florida;
(14) a letter, dated in November 1992, to Joseph Collins,
M.D., from Kenneth S. Graff, M.D., Melbourne Internal
Medicine Associates, Melbourne, Florida, with enclosure; (15)
a letter to Kenneth S. Graff, M.D., dated in December 1992,
from Douglas L. Jackson, M.D., Holmes Regional Medical
Center, Inc., Radiation Oncology Center, Melbourne, Florida,
with attachment; (16) a letter, dated January 1993, from
Kenneth S. Graff, M.D.; (17) a letter, dated in March 1993
from Douglas L. Jackson, M.D., with attached photographs;
(18) a transcript of a hearing conducted in March 1993; and
(19) various statements, and photographs submitted by the
veteran and his representative; (20) newspaper articles and
other published materials indicating a link between excessive
sunlight exposure and skin cancer.

The Social Security Items (10) and (11) refer to a
determination by the Social Security Administration
concluding that the claimant had been disabled since April
24, 1990, and finding him eligible for supplemental security
income.  Although the veteran�s skin cancer was found to have
played a part in his inability to work, it was only one
factor considered in that decision.  No evidence was provided
to link the current skin cancer to the incurrence of any
disease in service or to any incident in service or during
the one-year presumptive period.

The medical evidence comprises the remainder of the evidence
submitted.  Although extensive, such evidence also fails to
provide a nexus between the veteran�s present skin tumors and
any incident in service.  Of this evidence, items (1), (2),
(5), and (6) are concerned with diagnosis and treatment for
medical conditions other than carcinoma.  This evidence,
then, clearly is not relevant to the issue presently before
the Board.

Items (3), (4), and (8) refer only to surgery for squamous
cell carcinoma of the right temple and basosquamous carcinoma
of the right nose/inner canthal areas in July 1991.  Item (7)
describes plastic surgery at a VA hospital for residuals of
the prior surgery.  Item (9), the letter from Professor
Douglas E. Brash, summarizes a telephone conversation between
Dr. Brash and the veteran.  Dr. Brash indicated that the
veteran�s skin tumors likely were caused by sunlight.  Dr.
Brash then mentioned that it is possible to test for
sunlight-induced mutations in a gene identified as a tumor
suppressor gene, but that the cost would be prohibitively
high, and the results might well be inconclusive for the
veteran�s purposes.

Items (12) and (13) consist of reports of radiographic tests
and a biopsy of the tumor on the right side of the neck.  Dr.
Graff�s letters and consultation note, items (14) and (16),
describe treatment for several disorders.  Dr. Graff opined
that the right neck mass was a reflection of metastasis from
the anaplastic lesion removed from the veteran�s right temple
in July 1991.  He stated in his second letter that, upon
pathologic review, the area of adenopathy in the veteran�s
neck had proved to be identical to the skin cancer removed
from his temple and that both were felt to be poorly
differentiated squamous cell (Grade III) cancers.  Items (15)
and (17), correspondence from Dr. Jackson, relate solely to
treatment for the tumor in the right neck.

In reviewing the medical evidence, the Board finds that
although it is new, it is not relative or probative, and thus
not material, to the issue of service connection for basal
cell or squamous cell carcinoma.  There is nothing in these
documents suggesting a link between the veteran�s present
incidence of tumors and the fact that he had melanoma in
service, as would be necessary to establish service
connection.  See Masors v. Derwinski, 2 Vet.App. 181, 186
(1992).  The veteran purports to show that sunlight exposure
in youth can cause skin cancer in later years.  He then
argues that he did, in fact, suffer chronic sun exposure in
service and that, therefore, his present skin tumors must be
due to this exposure.  The Board would point out, however,
that although the veteran has presented medical evidence
suggesting a possible link between sunlight exposure and skin
tumors, he has presented no objective evidence that his
tumors were, in fact, caused by excessive sun exposure, or
that he experienced such exposure in service.  The veteran
also contends that the melanoma that he had in service was
the same as the tumors incurred in recent years and that the
latter are thus secondary to the melanoma.  The Board would
point out, however, that the veteran has not provided any
evidence whatsoever to support this theory.

Numerous statements submitted by the veteran and his
representative (Item 19) provide a �synopsis� of the
veteran�s personal medical history, including that relative
to his skin lesions.  These documents relate the veteran�s
history of melanoma in service and state that the other types
of carcinoma did not manifest themselves until years after
service.  The veteran has repeatedly indicated his belief
that these types of cancer are due to solar exposure and
maintained that the only intense sunlight he was aware of
having experienced was while he was in the service in
Bermuda.  He also has indicated that the types of cancer he
suffered from in- and post-service are �analogous.�
Newspaper articles submitted as attachments to the August
1992 substantive appeal refer to scientific studies relating
exposure to intense sunlight to the damage of a cancer-
inhibiting gene, causing carcinomas to occur in later years
when the skin has aged.  He stated that because he was not
currently eligible for VA medical care, private
hospitalization had depleted his financial resources and left
him in debt and unable to work.  He reported that he had been
receiving supplemental security income from the Social
Security Administration.

The Board finds that this evidence is new, in that it had not
been seen previously by the RO, but it is not relevant or
probative to the issue of service connection for basal cell
and squamous cell carcinoma.  These statements merely express
the veteran�s own unsubstantiated opinion as to the etiology
of his disabilities.  The Board would note, however, that
neither the veteran nor his representative, as laymen, are
capable of providing competent evidence with respect to an
issue, such as here, requiring medical diagnosis or an
opinion as to etiology.  See Espiritu v. Derwinski, 2
Vet.App. 492, 494-95 (1992).  Accordingly, lay assertions of
medical causation cannot serve as a predicate to reopen a
previously disallowed claim.  See Moray v. Brown,
5 Vet.App. 211, 214 (1993).

Finally, as regards the many newspaper articles and other
published materials submitted by the veteran,  the Board
would note that it does not dispute the findings of reputable
medical studies linking exposure to intense sunlight to
carcinomas many years later.  However, as noted above, the
veteran has not provided any compenet evidence, other than
his own unsupported contentions that he did, in fact, receive
sun damage to his skin during active service.  Likewise,
there is no credible medical of evidence of record to support
the veteran�s theory that the melanoma experienced in service
is causally related to his current condition.  He has thus
not succeeded in linking his current skin cancer to any
incident in service.

On the basis of the foregoing, the Board concludes that the
veteran has not provided new and  material evidence to reopen
his claim for service connection for basal cell carcinoma, to
include squamus cell carcinoma.  Since the veteran has not
fulfilled his threshold burden of submitting new and material
evidence, the benefit of the doubt doctrine does not apply in
this case.  See Annoni v. Brown, 5 Vet.App. 463, 466 (1993);
Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).

ORDER

New and material evidence not having been submitted to reopen
the veteran�s claim for service connection for basal cell
carcinoma, to include squamous cell carcinoma, the benefit
sought on appeal is denied.

	JACQUELINE E. MONROE
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, � 402
(1988).  The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.

- 2 -


judge_norm: J F GOUGH

disposition: dismissed

condition: skin

benefit: smc

text:
Decision Date: 10/31/95				Archive Date:
11/01/95
DOCKET NO.  93-28 715	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines

THE ISSUES

1.  Entitlement to an increased rating for the residuals of
a below-the-knee amputation of the right leg, currently
rated 40 percent disabling.

2.  Entitlement to an increased (compensable) rating for a
surgical scar from a bone graft in the region of the right
superior anterior iliac spine.

3.  Entitlement to special monthly compensation based upon
the appellant's need for the regular aid and attendance of
another individual.

4.  Entitlement to special monthly compensation at the
housebound rate.

REPRESENTATION

Appellant represented by:	American Red Cross

WITNESSES AT HEARING ON APPEAL

Appellant and his daughter

ATTORNEY FOR THE BOARD

D. P. Dean, Counsel
INTRODUCTION

The appellant served in the Philippine Scouts from June 1946
to August 1949.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating determinations by the Manila,
Philippines Regional Office (RO) of the Department of
Veterans Affairs (VA).  In April 1993, a hearing was held at
the RO at which the appellant and his daughter appeared and
explained their contentions.

During the course of this appeal, the appellant has
repeatedly claimed that he is totally disabled.  In the
opinion of the Board, this amounts to a claim for a total
disability rating based upon individual unemployability.  As
the RO has not adjudicated the claim as yet, and this is not
an issue which is inextricably intertwined with the issues
currently before the Board, appellate review of the present
appeal need not be delayed.  However, this additional issue
is referred to the RO for consideration.

In December 1975, the Board granted an increased rating from
10 to 20 percent for the service-connected active
osteomyelitis of the right tibia.  This increased rating,
effective from February 1974, was accomplished by a rating
action also dated in December 1975, and it was confirmed and
continued by all rating actions through May 1989.  However,
by what appears to have been a typographical error, a rating
action in July 1989 listed the rating for osteomyelitis as
"10% from 2-20-74."  The Board believes that this represents
a mere clerical error since the July 1989 rating action does
not purport to retroactively reduce the rating for
osteomyelitis.  However, all subsequent rating actions have
continued this error, which does not appear to have affected
the amount of the benefit payments received by the
appellant.  Nevertheless, this matter is referred to the RO
for corrective action.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant has contended that he is totally disabled as a
result of his right leg amputation.  He has advanced no
specific contentions concerning an increase in the severity
of the service-connected bone graft scar.  He has also
generally agreed with the RO's determination that he is
seeking the award of special monthly compensation benefits
at the housebound rate.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file.  Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the appeal seeking a compensable
rating for the service-connected bone graft scar of the
right superior anterior iliac spine should be dismissed for
lack of jurisdiction by the Board; and that the issue of
entitlement to special monthly compensation at the
housebound rate should be dismissed for failure to present a
well-grounded claim.  The remaining issues in appellate
status will be dealt with in the Remand portion of this
decision.

FINDINGS OF FACT

1.  The appellant has never filed a Notice of Disagreement
or Substantive Appeal concerning the issue of entitlement to
a compensable rating for his service-connected bone graft
scar.
2.  The claim seeking payment of special monthly
compensation at the housebound rate is not plausible.

CONCLUSIONS OF LAW

1.  The Board does not currently have appellate jurisdiction
over the issue of entitlement to a compensable rating for
the service-connected bone graft scar.  38 C.F.R. �� 20.200,
20.201, 20.202 (1995).

2.  The claim seeking payment of special monthly
compensation at the housebound rate is not well grounded.
38 U.S.C.A. �� 1114(s), 5107(a) (West 1991); 38 C.F.R. �
3.350(i) (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Background

In May 1947, the appellant sustained a compound comminuted
right ankle fracture as a result of an accidental gunshot
wound on guard duty.  After initial cleaning and debridement
of the wound, a cast was applied.  In January 1948, bone
graft surgery was performed to arthrodese the painful ankle
joint and straighten the angulated fracture.  The operative
wound later became infected, developing into osteomyelitis
of the lower tibia, despite vigorous chemotherapy.  The cast
was removed in June 1949, and X-ray studies revealed a
slight malunion of the lower tibia, which was about 1
centimeter shorter than the left; osteomyelitis of the lower
tibia; and ankylosis of the right ankle joint.

By rating action in April 1950, service connection was
initially established for bony ankylosis of the right ankle,
rated 20 percent disabling from August 1949; and chronic
osteomyelitis of the right lower tibia, rated 20 percent
disabling from August 1949.

In September 1954, the rating for the residuals of the right
ankle fracture, including moderate injuries to Muscle Groups
XI and XII, was increased to 30 percent; a noncompensable
rating was established for the surgical scar from the bone
graft in the region of the right superior anterior iliac
spine; and the rating for osteomyelitis was decreased to 10
percent, effective from October 1955.

Effective in February 1974, the rating for osteomyelitis was
increased to 20 percent in accordance with a December 1975
decision by the Board, and no further changes occurred in
the appellant's ratings until he underwent a below-the-knee
amputation of the right leg in August 1991.  A temporary
total rating due to hospitalization was assigned from August
10 through October 31, 1991.

Effective from November 1, 1991, the appellant has been
rated 40 percent disabled due to the residuals of the
amputation (including what were formerly rated as ankylosis
of the right ankle and chronic osteomyelitis of the lower
right tibia).  The noncompensable rating for the bone graft
scar has continued since August 1949.  The appellant has no
other service-connected disabilities at this time.

Bone Graft Scar

An appeal to the Board consists of a timely-filed Notice of
Disagreement in writing and, after a Statement of the Case
has been issued, a timely-filed Substantive Appeal.  38
C.F.R. � 20.200.  The United States Court of Veterans
Appeals has made it clear that both a timely Notice of
Disagreement and a timely Substantive Appeal are required in
order to confer appellate jurisdiction upon the Board.  See
Rowell v. Principi, 4 Vet.App. 9 (1993); Roy v. Brown, 5
Vet.App. 554 (1993).

In the present case, the evidentiary record does not reflect
any document which would satisfy the requirements for a
Notice of Disagreement or a Substantive Appeal on the issue
of entitlement to a compensable rating for the service-
connected bone graft scar.  See 38 C.F.R. �� 20.201, 20.202.
In fact, the appellant has advanced no specific contentions
concerning an increase in the severity of that service-
connected disability, which has been rated noncompensable
continuously since August 1949.  Under these circumstances,
the Board does not currently have appellate jurisdiction
over that issue.

Special Monthly Compensation at the Housebound Rate

For the same reasons discussed above, the question of
whether the Board has appellate jurisdiction over this issue
is not clear, but several of the appellant's statements are
ambiguous as to their meaning and -- if interpreted in a
liberal manner -- might possibly satisfy the requirements
for a timely Notice of Disagreement and Substantive Appeal
on this issue.  Resolving reasonable doubt in the
appellant's favor, the Board has concluded that this issue
has been procedurally developed for appellate review at this
time.  See 38 C.F.R. � 3.102 (1995).

The requirements for this award are that, in addition to
having a single, service-connected disability rated 100
percent disabling, the veteran: (1) have additional service-
connected disability or disabilities ratable at 60 percent,
separate and distinct from the 100 percent service-connected
disability and involving different anatomical segments or
bodily systems, or (2) is permanently housebound by reason
of service-connected disability or disabilities.  This
requirement is met when the veteran is substantially
confined as a direct result of service-connected
disabilities to his dwelling and the immediate premises or,
if institutionalized, to the ward or clinical areas, and it
is reasonably certain that the service-connected disability
or disabilities and resultant confinement will continue
throughout his lifetime.  38 U.S.C.A. � 1114(s); 38 C.F.R. �
3.350(i).

In addition, a claimant is always obliged to present
evidence of a well-grounded claim; that is, a plausible
claim, one which is either meritorious on its own or capable
of substantiation.  Murphy v. Derwinski, 1 Vet.App. 78
(1990).  Moreover, a well-grounded claim must be supported
by evidence, not just allegations.  Tirpak v. Derwinski, 2
Vet.App. 609 (1992).  If a claim is not well grounded, then
no duty to assist the claimant in the development of that
claim attaches to the VA.  38 U.S.C.A. � 5107(a).

In the present case, one service-connected disability is
currently rated 40 percent disabling, although - as noted
previously in this decision - a claim seeking a total rating
has been advanced.  However, the only other service-
connected disability is rated noncompensable, and has been
so rated since 1949.  Furthermore, there is not even a
current claim pending seeking an increase to that rating, as
discussed above.  Under these circumstances, the appellant
cannot possible satisfy the schedular requirements for an
award at the housebound rate.

In addition, there is no competent medical evidence to
establish that he is permanently housebound.  On the other
hand,  the appellant was demonstrably able to leave his
house without any reported difficulty in order to report for
a VA medical examination in November 1992, and in order to
appear at the April 1993 hearing.  These facts are
completely inconsistent with permanent housebound status.

Under these circumstances, the appeal must be dismissed for
failure to present a well-grounded claim.  Although the
Board is dismissing this appeal on grounds different from
the RO, the appellant has not been prejudiced thereby since
the RO, in considering the claim on its merits, accorded him
greater consideration than was warranted under the
circumstances.  Bernard v. Brown, 4 Vet.App. 384 (1993).

ORDER

The claim of entitlement to a compensable rating for the
service-connected bone graft scar is dismissed for lack of
jurisdiction.

As concerns the claim of entitlement to special monthly
compensation at the housebound rate, the appeal is dismissed
for lack of a well-grounded claim.

REMAND

The appellant underwent a below-the-knee amputation of the
right leg in August 1991, and has appealed to the Board from
the 40 percent rating assigned the residuals of that
surgery.  The current 40 percent rating represents the
maximum schedular rating for a below-the-knee amputation
unless the amputation is not improvable by a prosthesis
controlled by natural knee action; or unless the stump is so
defective that a thigh amputation is recommended.  See 38
C.F.R. � 4.71a, Codes 5163-65 (1995).

When examined by VA in November 1992, the appellant was
reportedly doing well, but the Board notes that he had not
yet completed his course of post-surgical physical
rehabilitation at that time.  At the April 1993 hearing, the
appellant testified that he was totally disabled as a result
of the amputation, and that he could not walk or even stand
with the prosthesis (Transcript, p. 2).  Unfortunately, this
matter was not clarified at that time, so the Board must now
deal with the appellant's uncontradicted testimony that his
prosthesis is unsatisfactory and does not work which, if
true, might entitle him to a higher rating.  The Board
believes that another medical examination of the appellant
is therefore necessary in order to verify his level of post-
surgical prosthetic functioning.

There are no schedular requirements for the award of special
monthly compensation due to the need for the regular aid and
attendance of another individual.  38 U.S.C.A. � 1114(l)
(West 1991); 38 C.F.R. �� 3.350(b)(3), 3.352(a).  However,
in denying the appellant's claim, the RO erroneously stated
that such schedular requirements existed and the appellant
failed to satisfy them.  Furthermore, the appellant is
competent to testify as to whether he can dress or undress
himself, or take a bath, without assistance.  His testimony
at the hearing on these points (Transcript, pp. 1-2) renders
his claim for aid and attendance benefits well grounded,
warranting a special aid and attendance examination.

Thus, this appeal is remanded to the RO for the following
action:

1.  The RO should schedule the appellant for a special aid
and attendance examination in order to verify his need for
the regular aid and attendance of another individual under
the criteria set forth at 38 C.F.R. � 3.352(a).  The
examining physician should be provided with a copy of that
regulation and directed to specifically address all of the
relevant criteria in the report.

2.  The RO should also schedule the appellant for a
comprehensive medical examination in order to verify the
level of post-surgical functioning with his prosthesis.  The
examining physician should be requested to specifically
report whether use of the proper prosthetic appliance
requires natural use of the right knee joint, or whether
necessary motion is otherwise controlled so that the muscles
affecting joint motion are, or will become, atrophied; and
also whether the stump is so unsatisfactory that amputation
at the thigh is recommended.

3.  The RO should next review all of the relevant evidence
in order to determine if the remaining benefits sought in
this appeal can be granted.

If the benefits remaining in appellate status are not
granted to the satisfaction of the appellant, a Supplemental
Statement of the Case should be issued, and the appellant
and his representative should be provided with an
opportunity to respond.  Thereafter, the case should be
returned to the Board for further appellate consideration.
All issues properly in appellate status should be returned
to the Board at the same time.

	J.F. GOUGH
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
Supp. 1995), a decision of the Board of Veterans' Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402 (1988).  The date that appears on
the face of this decision constitutes the date of mailing
and the copy of this decision that you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.  Appellate rights do not attach to those
issues addressed in the remand portion of the Board's
decision, because a 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) (1994).

- 2 -


judge_norm: EUGENE A O’NEILL

disposition: granted

text:
Decision Date: 10/11/95		Archive Date: 01/17/96
DOCKET NO.  93-20 855	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina

THE ISSUES

Entitlement to increased (compensable) evaluations for a
right foot disorder and a right ankle disorder.

REPRESENTATION

Appellant represented by:	North Carolina Division of
Veterans Affairs

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Richard V. Chamberlain, Counsel

INTRODUCTION

The veteran served on active duty from April 1978 to
September 1992.

This appeal arises from a May 1993 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky, that granted service connection for a
right foot disorder with spur formation involving the
Achilles tendinous insertion on the calcaneus and a possible
plantar spur, and a right ankle disorder.  Separate
zero percent ratings were assigned for these disorders.  The
veteran has appealed to the Board of Veterans� Appeals
(Board) for higher (compensable) ratings for the right foot
and right ankle disorders.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that he has pain in the
right foot/ankle area after prolonged activity which causes
functional limitation of his right ankle and foot.  He
requests increased (compensable) ratings for the service-
connected right foot and right ankle disorders.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence, and for the
following reasons and bases, it is the decision of the Board
that the preponderance of the evidence is against the claim
for an increased (compensable) rating for the right foot
disorder.  It is also the decision of the Board that the
evidence is in equipoise as to the issue of an increased
(compensable) rating for the right ankle disorder.

FINDINGS OF FACT

1.  The right foot disorder is manifested primarily by a
calcaneal spur, a spur at the base of the fifth metatarsal,
and complaints of pain that produce no more than slight
impairment; X-rays findings or limitation of motion involving
two or more minor joints groups is not found.

2.  The symptoms of the right ankle disorder produce moderate
functional impairment.

CONCLUSION OF LAW

1.  The criteria for a compensable rating for the right foot
disorder with spur formation on the calcaneus and the base of
the fifth metatarsal are not met.  38 U.S.C.A. � 1155 (West
1991); 38 C.F.R. �� 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a,
Codes 5003, 5284 (1994).

2.  The criteria for a 10 percent rating for right ankle
lateral ligament laxity are met.  38 U.S.C.A. �� 1155, 5107
(West 1991); 38 C.F.R. �� 3.321, 4.7, 4.40, 4.45, 4.59,
4.71a, Code 5271 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

The veteran served on active duty from April 1978 to
September 1992.  His service medical records show that he was
treated for a right ankle fracture in 1984 and complained of
problems with his feet at the time of medical examination for
discharge in September 1992.

In December 1992, the veteran underwent a VA medical
examination.  He said that he had had pain in the arch of his
right foot for several years following an injury on a
parachute jump.  He related that with certain motions and
excessive ambulation, the foot got sore.  Examination of the
foot was normal, but he complained of tenderness with
palpation of the arch of the right foot.  X-ray of the right
foot revealed spur formation involving the Achilles tendinous
insertion on the calcaneus and a possible plantar spur.
There was also a suggestion of hammer toe deformities
involving the second, third, fourth, and fifth digits.  The
foot was otherwise unremarkable.

VA medical reports show that the veteran was seen at the
outpatient of a medical facility for various problems and
examination in 1993.  A report of examination in August 1993
notes the presence of tenderness at the right ankle area and
on the top of the right foot.  There was no swelling present.
Pedal pulses were equal and plus three, bilaterally.  Radial
pulses were equal and plus three, bilaterally.  There was
some weakness noted of the right leg in comparison to the
left leg, possibly due to the painful right ankle.  The
impressions included right ankle tenderness.  In November
1993, he was seen for arthritic pain of the right ankle.  A
report of his treatment in December 1993 notes that X-rays
reportedly showed a calcaneal spur and a spur at the base of
the fifth metatarsal.  He complained of right ankle pain and
the top side of the right foot.  He had full range of motion
of the right ankle.  There was slight lateral laxity of the
right ankle but no other significant abnormality.  The
assessment was right ankle lateral ligament laxity.  He was
recommended for a right ankle brace and prescribed
medication.

The veteran testified at a hearing before the undersigned in
Washington, D.C., in January 1994.  He said that he had right
foot and ankle pain that he treated with medication and a
right ankle brace.  He said that he had right ankle/foot pain
after prolonged activity that affected his employment as a
security guard.

II.  Legal Analysis

The veteran�s claims for increased (compensable) ratings for
his right foot and right ankle disorders are well grounded,
meaning they are plausible.  38 U.S.C.A. � 5107(a).  The
Board finds that all relevant evidence has been obtained with
regard to these claims and that no further assistance to him
is required to comply with VA�s duty to assist him.

In order to establish entitlement to a higher rating for a
service-connected disability, the evidence must show symptoms
of the disorder which meet or more nearly approximate the
criteria for  higher ratings under the applicable diagnostic
codes in the Schedule for Rating Disabilities.  38 U.S.C.A.
� 1155; 38 C.F.R. � 4.7.

In regard to the right foot disorder, a 10 percent rating is
warranted for moderate residuals of an injury.  A 20 percent
rating requires moderately severe residuals.  38 C.F.R.
� 4.71a, Code 5284.

The evidence reveals that the veteran complained of problems
with his feet at the time of his discharge from service in
1992.  VA X-ray of his right foot taken in conjunction with a
VA examination later in 1992 showed spur formation involving
the Achilles tendinous insertion on the calcaneus and a
possible plantar spur.  The X-ray also suggested hammer toe
deformities of the second through fifth digits.  The 1992 VA
examination and VA medical reports of his treatment in 1993
indicate complaints of right foot/ankle pain, primarily
affecting the right ankle.  The report of his treatment in
December 1993 indicates the presence of a calcaneal spur and
a spur at the base of the 5th metatarsal.

The Board recognizes the veteran�s testimony to the effect
that he has right foot pain with prolonged activity which
causes functional impairment and affects his employment, but
the overall evidence indicates that the pain affects
primarily his right ankle and this symptom will be considered
in the evaluation of that disorder.  This symptom will not
again be considered in the evaluation of the right foot
disorder in order to avoid evaluating the same disability
under various diagnostic codes.  38 C.F.R. � 4.14.  The
overall evidence, including the veteran�s testimony,
indicates that the right foot disorder is manifested
primarily by a calcaneal spur and a spur at the base of the
fifth metatarsal that produce no more than slight impairment.
Hence, a compensable rating is not warranted under diagnostic
code 5284.  38 C.F.R. �� 4.40, 4.45, 4.59.  While hammertoes
were suspected at the VA examination in 1992, subsequent VA
medical records do not show hammertoes to warrant a
10 percent rating for this disorder under diagnostic code
5282.  Nor does the evidence indicated the presence of
arthritis or limitation of motion affecting two or more minor
joint groups of the right foot in order to warrant a
10 percent rating under diagnostic code 5003.  38 C.F.R.
� 4.45.

A compensable rating for the right foot disorder is not
warranted on an extraschedular basis because the case does
not present such an unusual or exceptional 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.  38 C.F.R. � 3.321(b).

The preponderance of the evidence shows that the right foot
pathology is properly rated and is against the claim for a
compensable rating for the right foot disorder.  Hence, the
benefit of the doubt doctrine is not for application, and the
claim must be denied.  38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet.App. 49 (1990).

In regard to the right ankle disability, a 10 percent
evaluation requires moderate limitation of motion.  A
20 percent evaluation requires marked limitation of motion.
38 C.F.R. � 4.71a, Code 5271.

As noted above, the evidence indicates the presence of right
ankle pain.  Right ankle tenderness was found at a VA
examination in August 1993 and right ankle lateral ligament
instability was noted on the report of his treatment in
December 1993.  At the hearing in 1994, he said that the
right ankle pain affected his employment as a security guard
and that he treated his right ankle disability with
medication and a brace as indicated in the report of his
treatment of December 1993.

After consideration of all the evidence, and with
consideration of 38 C.F.R. �� 4.7, 4.40, 4.45, and 4.59, the
Board finds that the evidence is in equipoise thus warranting
a rating of 10 percent for the right ankle disorder based on
moderate functional impairment caused by pain.  In arriving
at this decision, the doctrine of reasonable doubt was
applied in favor of the veteran.  38 U.S.C.A. � 5107(b);
Gilbert, 1 Vet.App. 49.

A rating in excess of 10 percent for the right ankle disorder
is not warranted on an extraschedular basis because
application of the regular schedular standards is not
impractical here.  38 C.F.R. � 3.321(b).

ORDER

An increased (compensable) rating for a right foot disorder
is denied.

A 10 percent rating for the right ankle disorder is granted.

	EUGENE A. O�NEILL
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, � 402
(1988).  The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.

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judge_norm: D C SPICKLER

text: The appeal is denied.

text:
Decision Date: 11/29/95				Archive Date:
11/29/95
DOCKET NO.  94-00 714	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased rating for traumatic arthritis
of the right knee, currently evaluated as 10 percent
disabling.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

G. Fortsch, Associate Counsel
INTRODUCTION

The veteran served on active duty from October 1963 until
September 1966 and from March 1974 until September 1974.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Houston,
Texas, Regional Office (RO) of the Department of Veterans'
Affairs (VA).  In April 1993, a hearing was held at the RO
before a hearing officer.  A transcript of that hearing is
of record.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he is entitled to an increased
rating because his right knee disability has increased in
severity to the extent that he must wear a brace, has
trouble kneeling and squatting, and has almost daily pain.
The veteran also claims that his right knee pain is
exacerbated by driving, climbing or squatting, and that he
experiences occasional spasms and swelling in his right
knee.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file.  Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is unfavorable to the claim seeking a rating in excess of 10
percent for the service-connected right knee disability.

FINDINGS OF FACT

1.  There is x-ray evidence of hypertrophic osteoarthritis
in the right knee.

2.  The service-connected right knee disability is currently
manifested by subjective complaints of pain, as well as
objective evidence of full extension, flexion from 0 to 135
degrees, and swelling.  There is no objective confirmation
of muscle spasm, and ligaments are intact.

CONCLUSION OF LAW

The requirements for a disability rating in excess of 10
percent for traumatic arthritis of the right knee have not
been met.  38 U.S.C.A. �� 1155, 5107(a) (West 1991); 38
C.F.R. �� 3.321, 4.40, 4.45, 4.59, Part 4, Codes 5003, 5010,
5257, 5260 and 5261 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board notes that the veteran's increased
rating claim is found to be well grounded under 38 U.S.C.A.
� 5107(a).  That is, he has presented a claim which is
plausible.  Murphy v. Derwinski, 1 Vet.App. 78 (1990).  In
general, an allegation of increased disability is sufficient
to establish a well-grounded claim seeking an increased
rating.  Proscelle v. Derwinski, 2 Vet.App. 629 (1992).  The
Board is also satisfied that all relevant facts have been
properly developed, and that no further assistance to the
appellant is required in order to satisfy the VA's duty to
assist him.

Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule).
See 38 C.F.R. Part 4 (1995).  The percentage ratings
contained in the Rating Schedule represent, as far as can be
practicably determined, the average impairment in earning
capacity resulting from diseases and injuries incurred or
aggravated during military service and their residual
conditions in civil occupations.  38 U.S.C.A. � 1155 (West
1991); 38 C.F.R. � 4.1 (1995).

Traumatic arthritis is to be rated as degenerative
arthritis.  38 C.F.R. Part 4, Code 5010.  Degenerative
arthritis (hypertrophic or osteoarthritis) established by x-
ray findings will be rated on the basis of limitation of
motion under the appropriate diagnostic codes for the
specific joint or joints involved.  See 38 C.F.R. Part 4,
Diagnostic Code 5200 et seq. (1995).  The appropriate
diagnostic codes for rating limitation of motion of the
right knee are 38 C.F.R. Part 4, Codes 5260 and 5261 (1995).
When, however, the limitation of motion of the specific
joint or joints involved is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is
applied for each such major joint or group of minor joints
affected by limitation of motion.  Limitation of motion must
be objectively confirmed by findings such as swelling,
muscle spasm, or satisfactory evidence of painful motion.
In the absence of limitation of motion, degenerative
arthritis will be rated 10 percent disabling when x-ray
evidence reveals its presence in two or more major joints or
two or more minor joint groups.  Without limitation of
motion, degenerative arthritis will be rated 20 percent
disabling when x-ray evidence shows its presence in two or
more major joints or two or more minor joint groups with
occasional incapacitating exacerbations.

The veteran was granted service connection for his right
knee disability in January 1975.  This disability has been
rated 10 percent disabling since July 1991.

In July 1991, the veteran sought outpatient treatment at a
VA facility.  The veteran reported to the examination with
complaints of pain, and the attending physician observed
swelling and tenderness in the veteran's right knee.  X-ray
films taken during the examination revealed hypertrophic
osteoarthritis in the right knee.

In May 1993, the veteran underwent a VA examination.  The
examining physician noted the veteran's complaints of pain,
but found no detectable effusion or evidence of quad
atrophy.  A mild amount of grating in the veteran's patella
was revealed on motion.  There was flexion from 0 to 135
degrees, and full extension in the right knee.  Medial and
lateral joint ligaments were sound and cruciate ligaments
were intact.  The examining physician noted minimal joint
line osteophyte formation in the right knee.  X-ray studies
showed no gross abnormalities, but the examining physician
opined that the "history of symptoms referrable [sic] to
[the] right knee [were] probably secondary to a mild degree
of osteoarthritis."

It is clear, based on the medical evidence described above
as well as 38 C.F.R. Part 4, Codes 5003 and 5010, that no
more than a 10 percent disability rating is warranted for
the veteran's right knee traumatic arthritis.  X-ray
findings establish evidence of hypertrophic osteoarthritis.
While limitation of motion, as demonstrated by flexion in
the veteran's right knee from 0 to 135 degrees, is
noncompensable under 38 C.F.R. Part 4, Codes 5260 and 5261
(1995), it is objectively confirmed by evidence of swelling
in July 1991 and satisfactory evidence of painful motion in
May 1993, although no evidence of muscle spasm is recorded.
Furthermore, only one major joint is affected by this
limitation of motion.  The next highest rating of 20 percent
for degenerative arthritis requires limitation of motion to
affect two major joints or two groups of minor joints.
Moreover, there has been no medical evidence that there is
moderate subluxation or lateral instability of the knee so
as to warrant a higher rating under Code 5257.

There is no indication in the record that the schedular
evaluation is inadequate to evaluate the impairment of the
veteran's earning capacity due to the disability at issue,
and it does not present 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 schedule of standards.  Thus the provisions of
38 C.F.R. � 3.321 relating to extraschedular evaluations are
not applicable here.  The Board has also considered all
other potentially applicable provisions of 38 C.F.R. Parts 3
and 4, whether or not they have been raised by the veteran
or his representative, as required by Schafrath v.
Derwinski, 1 Vet.App. 589 (1991).

In this case, the Board finds no provision upon which to
assign a higher disability evaluation.  While there is
evidence of painful motion in the veteran's right knee, this
painful motion is expressly considered by the Code under
which the veteran is currently rated.  Thus, the Board finds
that 38 C.F.R. �� 4.40, 4.45, and 4.59 do not provide a
basis for a higher rating.  See DeLuca v. Brown, No. 94-242
(U.S. Vet.App. Sept. 22, 1995).

The Board acknowledges the veteran's testimony that he
experiences pain and occasional instability of his right
knee.  As noted above, painful motion is contemplated by the
rating currently assigned.  No evidence of moderate
subluxation or instability was confirmed on clinical
examination and the veteran's testimony indicates that he is
able to perform his employment duties for a contractor
despite his knee symptoms.  Accordingly, the Board finds
that the preponderance of the evidence is against the claim.

ORDER

The appeal is denied.

	D. C. SPICKLER
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988.  Veterans' Judicial Review Act, Pub. L.
No. 100-687, � 402 (1988).  The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.

- 2 -


judge_norm: STEPHEN L WILKINS

text:
Decision Date: 12/04/95				Archive Date:
12/04/95
DOCKET NO.  94-01 209	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina

THE ISSUE

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

REPRESENTATION

Appellant represented by:	AMVETS

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

E. A. Artman, Associate Counsel
INTRODUCTION

The veteran served on active duty in the United States Army
from September 1967 to July 1970.

The matter on appeal before the Board of Veterans' Appeals
(Board) of the Department of Veterans Affairs (VA) arises
from a September 1992 rating action of the Winston-Salem,
North Carolina, Regional Office (RO).

REMAND

A review of the record discloses that there is significant
contradiction in the medical evidence which has been
received.  Statements and reports from the veteran's
treating psychologist, Patrick D. Weichert, Ph.D., contain
the conclusion that the veteran does indeed suffer from
PTSD.  However, Dr. Weichert does not provide specific
accounts of stressful service events to which this diagnosis
can be linked.  He asserts, in essence, that any service
which the veteran may have completed in Vietnam could have
led to the onset of this disorder, regardless of his MOS.

On the other hand, the results of a social survey and a
psychiatric evaluation, performed by VA in January 1993,
show that the veteran was found to be too unreliable an
historian in order to conclude that he suffered from the
claimed PTSD.  Rather, a diagnosis of an anxiety disorder
was provided by the examining psychiatrist.

Due to the contradiction in the evidence, the Board finds it
necessary to refer this matter to the RO for additional
development of the issue on appeal.  Accordingly, this case
is REMANDED for the following actions:

1.  The RO should contact the veteran in the appropriate
manner in order to obtain copies of recent treatment records
pertaining to his claimed psychiatric disorder.
Specifically, an effort should be made to obtain copies of
treatment records from Patrick D. Weichert, Ph.D., of
Rutherfordton, North Carolina, which are dated later than
May 1992.  All copies obtained should be associated with the
veteran's claims file.

2.  The RO should, again, in an appropriate manner, take
steps to contact the veteran and to request that he provide
any dates, names of pertinent individuals involved, and
circumstances for each event which he claims as a stressor
for PTSD.  The importance of providing this specific
information should be emphasized to the veteran,
particularly in view of the Court's finding in Wood v.
Derwinski, 1 Vet.App. 190 (1991).  In Wood, the Court also
held that "[t]he factual data required, i.e., names, dates
and places, are straightforward facts and do not place an
impossible or onerous task on [the veteran].  The duty to
assist is not always a one-way street.  If a veteran wishes
help, he cannot passively wait for it in those circumstances
where he may or should have information that is essential in
obtaining the putative evidence."  Wood at 193.

3.  Upon completion of (1) and (2) above, the RO should
forward the information obtained, along with a copy of the
veteran's service personnel records, to the United States
Army and Joint Services Environmental Support Group (ESG),
7798 Cissna Road, Springfield, Virginia, 22150, and request
corroborating documentation of the claimed stressors.

4.  Upon completion of all the foregoing steps, and only
then, the veteran should be afforded a VA psychiatric
examination to determine whether, in the examiner's opinion,
he has PTSD.  It is imperative that the claims file be
provided to the examiner for review prior to the
examination.  Complete psychological testing should be done
in this regard.  The examination and any diagnosis made
should conform to the guidelines set forth in the American
Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders.  If PTSD is diagnosed, the specific
stressors that resulted in the disorder should be identified
and linked to his present symptomatology.  All findings,
opinions and bases should therefor be set forth in detail.

5.  Based upon the evidence obtained pursuant to the
development sought above, the RO should take adjudicatory
action.  If any of the benefits sought by the veteran are
not granted, a supplemental statement of the case should be
issued.

After the veteran has been given an opportunity to respond
to the supplemental statement of the case, the claims file
should be returned to this Board for further appellate
review.  No action is required by the veteran until he
receives further notice.  The purpose of this REMAND is to
procure clarifying data and to comply with governing
adjudicative procedures.  The Board intimates no opinion,
either legal or factual, as to the disposition of this
appeal.

	STEPHEN L. WILKINS
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals.  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) (1994).

- 2 -