judge_norm: A BRYANT

benefit: cue

text: The motion alleging clear and unmistakable error is granted to the extent that the January 1989 Board decision is reversed as to the denial of entitlement to a total rating based on individual unemployability and the RO is directed to assign an effective date as to this matter in accordance with 38 C.F.R. § 20.1406(a) (2001).

text:
Citation Nr: 0210001
Decision Date: 08/16/02    Archive Date: 08/21/02

DOCKET NO.  02-00 954A	)	DATE
	)
	)

THE ISSUES

1.  Whether a September 1980 decision of the Board of
Veterans' Appeals denying entitlement to a total disability
rating based upon individual unemployability should be
revised or reversed on the grounds of clear and unmistakable
error.

2.  Whether a January 1989 decision of the Board of Veterans'
Appeals denying entitlement to total disability rating based
upon individual unemployability should be revised or reversed
on the grounds of clear and unmistakable error.

(The issue of entitlement to an effective date earlier than
July 22, 1991, for the award of entitlement to a total rating
based upon individual unemployability is addressed in a
separate Board decision.)

REPRESENTATION

Moving party represented by:  Disabled American Veterans

ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel

INTRODUCTION

The veteran served on active duty from February 1968 to March
1971.

This matter comes before the Board of Veterans' Appeals
(Board) from a February 2002 motion by the moving party, the
veteran, alleging clear and unmistakable errors in September
1980 and January 1989 Board decisions which denied
entitlement to a total disability rating based upon
individual unemployability.

FINDINGS OF FACT

1.  In a September 1980 decision, the Board denied
entitlement to a total disability rating based on individual
unemployability on the basis that the evidence did not
indicate the veteran was precluded from all forms of
substantially gainful employment by reason of his service-
connected disability.

2.  In a January 1989 decision, the Board denied entitlement
to a total disability rating based upon individual
unemployability on the basis that the veteran's service-
connected postoperative residuals of a cervical spine fusion
did not preclude him from undertaking all forms of
substantially gainful employment on a regular basis with
consideration given to his education and employment
background.

3.  The Board's September 1980 decision was supported by the
evidence then of record, and it is not shown that the
applicable statutory and regulatory provisions existing at
that time were ignored or incorrectly applied.

4.  The Board's January 1989 decision failed to report or
address pertinent evidence of record and was an error which,
had it not been made, would have manifestly changed the
outcome.

CONCLUSIONS OF LAW

1.  The September 1980 decision, wherein the Board denied
entitlement to a total disability rating based upon
individual unemployability, did not contain clear and
unmistakable error.  38 U.S.C.A. � 7111 (West Supp. 2001); 38
C.F.R. �� 20.1400, 20.1403, 20.1404 (2001).

2.  The Board's January 1989 decision was clearly and
unmistakably erroneous in failing to award entitlement to a
total disability rating based upon individual
unemployability.  38 U.S.C.A. � 7111 (West Supp. 2001); 38
C.F.R. �� 20.1400, 20.1403, 20.1404 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Board Clear and Unmistakable Error Claims

Department of Veterans Affairs (VA) law provides that clear
and unmistakable error is a very specific and rare kind of
error.  It is the kind of error, of fact or of law, that when
called to the attention of later reviewers compels the
conclusion, to which reasonable minds could not differ, that
the result would have been manifestly different but for the
error.  Generally, either the correct facts, as they were
known at the time, were not before the Board, or the
statutory and regulatory provisions extant at the time were
incorrectly applied.  38 C.F.R. � 20.1403(a) (2001).

Review for clear and unmistakable error in a prior Board
decision must be based on the record and the law that existed
when that decision was made.  38 C.F.R. � 20.1403(b)(1)
(2001).

To warrant revision of a Board decision on the grounds of
clear and unmistakable error, there must have been an error
in the Board's adjudication of the appeal which, had it not
been made, would have manifestly changed the outcome when it
was made.  If it is not absolutely clear that a different
result would have ensued, the error complained of cannot be
clear and unmistakable.  38 C.F.R. � 20.1403(c) (2001).

The following situations do not constitute clear and
unmistakable error: (1) where there is a changed diagnosis,
that is, a new medical diagnosis that "corrects" an earlier
diagnosis considered in a Board decision; (2) the VA fails to
fulfill the duty to assist; and (3) there is a disagreement
as to how the facts were weighed or evaluated.  See 38 C.F.R.
� 20.1403(d)(1)-(3) (2001).

In addition, clear and unmistakable error does not include
the otherwise correct application of a statute or regulation
where, subsequent to the Board decision challenged, there has
been a change in the interpretation of the statute or
regulation.  38 C.F.R. � 20.1403(e) (2001).

The Court has set forth a three-prong test, in essence,
defining clear and unmistakable error: (1) either the correct
facts, as they were known at that time, were not before the
adjudicator (i.e., more than a simple disagreement as to how
the facts were weighed or evaluated), or the statutory or
regulatory provisions extant at the time were incorrectly
applied; (2) the error must be "undebatable" and the sort
"which, had it not been made, would have manifestly changed
the outcome at the time it was made;" and (3) a
determination that there was clear and unmistakable error
must be based on the record and law that existed at the time
for the prior adjudication in question.  Damrel v. Brown, 6
Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3
Vet. App. 310, 313-14 (1992)).

The Board notes that the United States Court of Appeals for
Veterans Claims (Court) has consistently stressed the
rigorous nature of the concept of clear and unmistakable
error.  "Clear and unmistakable error is an administrative
failure to apply the correct statutory and regulatory
provisions to the correct and relevant facts; it is not mere
misinterpretation of facts."  Oppenheimer v. Derwinski, 1
Vet. App. 370, 372 (1991).  Clear and unmistakable error is
"undebatable, so that it can be said that reasonable minds
could only conclude that the original decision was fatally
flawed at the time it was made."  Russell, 3 Vet. App. at
313.  "It must always be remembered that clear and
unmistakable error is a very specific and rare kind of
'error.'"  Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  A
disagreement with how the Board evaluated the facts is
inadequate to raise the claim of clear and unmistakable
error.  Luallen v. Brown, 8 Vet. App. 92, 95 (1995).

September 1980 Board Decision
Evidence of Record Prior to September 1980

Service medical records dated August 6, 1968, show the
veteran injured his neck in an accident in shallow lake
water.  An August 8, 1968, orthopedic clinic report noted
that the veteran had experienced an onset of pain in the
cervical area and hyperesthesia of the deltoid and lateral
cervical areas but that he denied peripheral palsy or
paresthesia.  The examiner noted marked rigidity of the neck
muscles.  Deep tendon reflexes were equal and normal and
sensation to pinprick and light touch was normal.  X-ray
examination revealed a compression fracture to the 5th
cervical vertebra with an avulsion of the inferior lip,
anterior portion, of the 5th centrum in the cervical area.
It was recommended the veteran be admitted to the hospital
for further work-up and treatment.

A June 1969 medical board report noted that an examination of
the veteran upon hospital admission in August 1968 did not
reveal any significant abnormalities.  Motor and sensory
examination findings were within normal limits and no reflex
changes were noted.  It was further indicated that x-ray
examination revealed a C4 fracture with anterior displacement
of C3.  The veteran was treated with traction and a four-
poster cervical brace from August 1968 to April 1969.  The
final diagnosis was cervical vertebra fracture at C4 with
dislocation.  The examiner recommended the veteran be
discharged to 6 months of limited duty.

Additional service medical records dated in August and
September 1969 show the veteran complained of persistent
neck.

A December 1969 medical board report noted that while on
limited duty the veteran had complained of increasing pain to
the posterior cervical region and numbness to the finger
tips.  It was noted that the veteran had frequently visited
sick call and the orthopedic clinic for medication and that
in October 1969 a neurologist found the veteran had minimal
residuals of spinal cord compression and recommended hospital
admission for evaluation.  Admission physical and
neurological examinations were normal except for voluntary
rigidity, reluctance to move neck, bilateral hand tremor, and
absent right patellar reflex.  Range of motion of the neck
was normal and complaints of finger tip numbness could not be
confirmed objectively with sensory testing.

It was noted that the opinion of the staff neurologists and a
neurosurgeon after a review of the veteran's admission x-rays
was that he had some cervical muscle stiffness from prolonged
immobility but that there was no evidence of significant
residuals at that time to warrant further diagnostic or
neurosurgical procedures.  The veteran was provided a course
of muscle relaxants, heat application, and vigorous physical
therapy.  He tolerated discontinuance of the cervical collar,
his right patellar reflex returned, and his dependence upon
Darvon was decreased.  It was noted he complained of almost
constant posterior neck pain but was never incapacitated by
it.

The medical board report also noted that in November the
veteran became intoxicated and combative and was transferred
to a locked psychiatric ward for a few days where he was
interviewed twice by a staff psychiatrist who found the
veteran had an irrational fear of harming his neck with
avoidance of most physical activities and an establishment of
behavior pattern full of secondary gain including disability
compensation.

It was noted that the veteran's lack of physical disability
had been explained to him but that he was reluctant to return
to duty and that a conference of staff neurologists had
reviewed the case and found the veteran physically fit for
full duty.  Diagnoses were provided including cervical
vertebra fracture at C4, healed, and moderate passive-
aggressive personality disorder manifested by passive
obstructionism with stubborn refusal to relinquish symptoms
and behavior that provides secondary gain and a marked
tendency to somatize his anxiety.  The recommendation was
that the veteran be returned to full duty but that if he
continued to adapt poorly to military duty further evaluation
should be conducted through psychiatric rather than
neurological or neurosurgical facilities.

A September 8, 1970, psychiatric examination included a
diagnosis of passive-aggressive personality manifested by
conversion symptoms of neck pain and passive obstructionism.
It was the examiner's opinion that the veteran's impairment
was mild and that he was fit for duty.  In a September 28,
1970, report the psychiatric examiner noted the veteran was
quite manipulative but was neither neurotic or psychotic and
that he might well be using his neck pain as a means of being
separated from the Navy.  It was the examiner's opinion that
the veteran would continue to report frequently for pain
medication and would continue to be obstructive in work
details.  It was recommended that he be evaluated by a
neurologist or a neurosurgeon and that if he was not
medically discharged he should be administratively separated.

Medical records dated in November 1970 show the veteran had
been involved in an automobile accident and that he
complained of neck pain.  An orthopedic clinic examination
revealed cervical strain and noted that x-rays demonstrated
decreased normal curve but no fractures.  The diagnosis was
acute cervical strain.  A subsequent November 1970 report
noted that physical examination revealed minimal point
tenderness at C5 but no muscle spasm.  The diagnosis was mild
cervical strain.

The veteran's February 1971 discharge examination report
noted a slight decrease in forward flexion of the neck but
otherwise the physical evaluation was within normal limits.
A summary of defects and diagnoses included old fracture at
C4, healed.  In his report of medical history the veteran
noted he had experienced recurrent neck pain.

At his June 1971 VA examination the veteran reported that his
neck was not too bad and that he could turn it but he
experienced a constant aggravation.  He stated he had more
headaches than neck pain but that he avoided close work or
lifting too many heavy objects.  The examiner noted the
veteran was well developed, well nourished, and healthy
appearing and that he stripped to the waist readily with no
difficulty or discomfort.  He stood erect with his shoulders
level.  The paravertebral musculature was well developed and
was not spastic, contracted, fibrotic, nor atrophic.  There
was flattening of the normal cervical lordotic curve and a
slight gibbous to the lower mid-cervical region.  The area
was asymptomatic on palpation.

Range of motion studies of the cervical spine revealed
forward flexion restricted by approximately 25 percent,
lateral flexion restricted by approximately 15 percent to
each side, and hyperextension which was almost unrestricted.
The cervical movements did not produce any discomfort at that
time.  The shoulders and upper extremities were unrestricted
and symptoms free.  The diagnosis was residuals of fracture
dislocation C4, healed, with mild limitation of motion of the
cervical spine.

A July 1971 rating decision granted entitlement to service
connection for residuals of fracture dislocation C4, healed,
with mild limitation of motion of the cervical spine.  A 10
percent disability rating was assigned effective from March
2, 1971.  The veteran was notified of the determination by
correspondence dated July 28, 1971.

In March 1973, the veteran requested entitlement to an
increased rating.  In support of his claim he submitted a
copy of a private medical examination report dated in
November 1972.  The report summarized the veteran's service
injury and his subsequent treatment.  It was noted that he
had been working since March 1971 and that his present
complaints included headaches and dizziness, neck pain and
stiffness, nervousness and shaking, sharp pain to the neck
and shoulders, and pain, numbness, stiffness, and weakness to
the arms.  The diagnoses included contusion and strain injury
to the cervical area, bilaterally, bilateral cervical
tendonitis, impaired mobility of the neck and arms, myositis
of the trapezius and rhomboid musculature, and fracture of
the 3rd, 4th, and 5th cervical vertebrae.  The physician stated
residual complaints and disability had been a source of
marked discomfort for the veteran.

On the occasion of a VA examination in May 1973, the veteran
complained of a dull aggravating pain to the neck, most of
the time, and stiffness with occasional sharp pains to the
posterior neck.  He reported he was employed as a salesman.
He stated he often took off early or adjusted his work
schedule and avoided sports activities because of headaches.
The examiner noted the veteran walked normally with normal
posture.  He disrobed easily and pulled off his tee shirt
with no apparent difficulty at all.  It was noted the
examination findings were almost identical to the previous VA
examination.  The diagnosis was history of fracture of the
cervical spine, healed, with residual loss of normal lordosis
and mild limitation of motion as the only objective findings
at that time.  The examiner, in essence, noted the veteran
claimed the disorder was symptomatic.

In June 1973, the veteran was notified that his claim had
been reviewed but that no change in his compensation award
was warranted.

In August 1973, the veteran requested a re-evaluation of his
service-connected disability.  In support of his claim the
veteran submitted a June 1973 statement from his private
physician, C. Dekker, M.D., which noted the veteran had
experienced severe problems with neck pain and spasms.

VA hospital records show the veteran underwent anterior
cervical decompression and fusion of C3-4 with foraminotomy
in October 1974.

A November 1974 rating decision granted entitlement to an
increased 20 percent disability rating from September 5,
1973, granted entitlement to a temporary total rating under
the provisions of 38 C.F.R. � 4.30 (Paragraph 30) from
September 23, 1974, and continued a 20 percent rating
effective from December 1, 1974.

In January 1975, the veteran requested entitlement to a total
rating based on individual unemployability.  It was noted
that the veteran had been informed at his January 1975
outpatient clinic examination that he would not be able to
work for 6 more months.  In support of his claim the veteran
submitted correspondence from his previous employers.
Correspondence dated in December 1974 from Mister Donut noted
the veteran had worked as a night manager from August 1972 to
September 1972 and that he had been terminated because he was
physically unable to do any job requiring heavy lifting or
anything of a strenuous nature.

Correspondence dated in December 1974 from Chicago Motor Club
noted the veteran had been employed from December 1972 to
June 1973 and that during this period he had been unable to
work properly and missed a considerable amount of time due to
severe neck pain.  Undated correspondence from Ridge
Industries, Inc., noted the veteran had worked from April
1974 to September 1974 but that he left because of severe
neck pain.  It was noted that he had been unable to perform
his duties as a salesman because of this disorder.

A February 1975 rating decision granted entitlement to an
extended period of Paragraph 30 convalescence benefits from
September 23, 1974, and continued a 20 percent rating from
March 1, 1975.

In correspondence to his congressional representative in
March 1975 the veteran requested assistance with his claim.
He also noted he was presently attending the Gateway
Technical Institute under a VA rehabilitation program but
that he had lost all of his previous jobs because of his neck
injury.

An April 1975 rating decision granted entitlement to an
extended period of Paragraph 30 convalescence benefits from
September 23, 1974, and granted an increased 40 percent
rating from April 1, 1975.

A May 1975 rating decision granted entitlement to an extended
period of Paragraph 30 convalescence benefits from September
23, 1974, and granted an increased 40 percent rating from May
1, 1975.

At his VA orthopedic examination in July 1975 the veteran
complained of neck pain, back pain, shoulder pain into the
arms, and head pain.  The examiner noted there was mild
crepitation palpated upon movement of the left shoulder but
that there was no other abnormality to the remaining joints
of the upper extremities.  There was full range of motion to
the shoulders and the other upper extremity joints.  There
was no evidence of muscle atrophy to the shoulders or upper
extremities.

There was straightening of the cervical curvature of the
spine and a well-healed surgical cicatrix which was
unremarkable.  Forward flexion of the cervical spine was
possible to 30 or 40 degrees, and hyperextension, lateral
flexion, and rotation were approximately 1/3 to 1/2 of
normal.  The diagnoses included postoperative status fracture
dislocation C3-C4 vertebrae with spondylosis, cervical
decompression and fusion, well-healed surgical cicatrix, and
radiculopathy of the right upper extremity.  It was the
examiner's opinion that no basis for unemployability could be
found based upon examination of the veteran.

A July 1975 VA neurology examination report noted the veteran
was well developed, well nourished, and ambulated with a
normal gait and associated movement.  There was good muscle
development and strength throughout with no evidence of tics,
fasciculations, or atrophy.  It was noted the veteran held
his head somewhat rigid and that movement in all planes was
slightly limited with complaints of pain at the extreme
ranges of motion.  Coordination testing was done well, deep
tendon reflexes were active and normal, and there were no
sensory deficits.  The diagnosis was postoperative residuals
of fracture dislocation C3-C4 vertebrae with radiculopathy.

A July 1975 rating decision denied entitlement to an
increased rating and denied an extended period of
Paragraph 30 convalescence benefits.

In August 1975, the veteran submitted copies of
correspondence he had received from prospective employers.
Correspondence dated in August 1975 from Schuren's Super Valu
noted the veteran had applied for employment but that they
had no present openings and that they were unable to hire
anyone with the veteran's disabilities.  In correspondence
dated in August 1975 from Bell & Associates, E.C., declined
to offer the veteran the position he had previously held
because he did not feel he could handle a full-time job,
especially where heavy lifting was involved.  Correspondence
dated in August 1975 from R.E.C. noted he had known the
veteran for several years and had employed him prior to his
surgery.  It was noted that he was aware of the veteran's
medical history and present condition and in his opinion he
was physically unable to spend the time and energy required
to hold a steady job.

Correspondence dated in August 1975 from the Woodmen Accident
and Life Company denied the veteran's application for
employment due to his medical history and current disability.
Correspondence dated in July 1975 from the Burlington
Consumers Cooperative denied the veteran's application for
employment based upon health problems they had discussed.  It
was noted the job he had applied for would involve
considerable heavy lifting and that his use of medications
would interfere with insurance for driving.  Correspondence
dated in July 1975 from Windridge denied the veteran's
application for employment due to his medical history and
current disability.

A January 1976 VA psychiatric examination report noted that
after service the veteran had worked as a foundry foreman, an
insurance salesman, and a chemical salesman and that he had
been a student at the Gateway Technical Institute but that he
had not worked since June 1975.  It was further indicated he
had been denied employment because of his neck injury.  The
diagnosis was depressive reaction due to neck injury.

At his VA orthopedic examination in January 1976 the veteran
complained of constant neck pain and frequent referred pain
to the right shoulder down the right arm.  It was noted the
veteran was presently a full-time student.  The examiner
noted the veteran was well developed and well nourished but
was in evident chronic moderate physical distress relative to
his neck disability.  Examination revealed the veteran's neck
contour was symmetrical and there was no evidence of
deformity, tenderness to the musculature, or observed
adenopathy.  Range of motion of the cervical spine revealed
flexion to 30 degrees, extension to 30 degrees, lateral
flexion to 30 degrees, and rotation to 45 degrees.
Examination of the shoulders revealed normal contour without
evidence of muscle atrophy.  The diagnosis was status post
fracture of C4 with subsequent anterior cervical spinal
fusion and moderate physical residuals.

A January 1976 VA neurology examination report noted the
veteran was well developed and well nourished but in marked
physical distress with neck and shoulder pain.  The examiner
noted normal symmetry of the neck and a minimal amount of
tenderness on palpation in the scar area.  There was no
evidence of adenopathy.  Flexion of the cervical spine
produced marked pain and extension produced moderate pain.
Neurologic examination revealed somewhat hypoactive bilateral
deep tendon reflexes.  His motor functions were intact but
there was weakness to the right arm.  Sensory function was
involved in the right arm.  Babinski's and Romberg's signs
were negative.  It was noted his posture and gait appeared to
be normal and there did not appear to be any gross
incoordination.  The diagnoses were cervical spondylosis in
the area of C3 - C4 with radiculopathy due to cervical
vertebrae fracture and cervical brachial plexus syndrome.

In April 1976, the veteran's spouse submitted a copy of a
December 1975 Department of Health and Human Services, Social
Security Administration (SSA) decision awarding the veteran
entitlement to disability benefits.  She stated, in essence,
that VA should find the veteran totally disabled because of
the SSA determination.

An April 1976 VA psychiatric opinion by a board of 2
psychiatrist summarized the evidence of record and stated
that in light of the 1/9/75 (sic) VA orthopedic examination
report which found no basis for unemployability it was
difficult to establish an etiological relationship between
the veteran's cervical injury and his depression.

A June 1976 rating decision denied entitlement to an
increased rating for the veteran's residuals of C4 fracture
and denied entitlement to service connection for depressive
reaction.  The veteran was notified of the decision and his
appellate rights by correspondence dated June 11, 1976.

At his November 1976 VA orthopedic examination the veteran
reported his vocational rehabilitation studies in food
service management had been interrupted in September 1974
because of VA hospitalization and that since that time he had
considered himself unemployable.  The examiner noted the
veteran exhibited a "wooden soldier posture" described as
turning the head and shoulders together for side glancing,
disrobing, and all kinds of functions but that he disrobed
and dressed himself promptly and apparently unimpaired.
There was a noticeable lordotic alteration to the cervical
spine associated with a moderate restriction of flexion to 20
degrees, extension to 15 degrees, left lateral flexion and
rotation to 15 degrees, and right lateral flexion and
rotation to 20 degrees.

The veteran's extremities were symmetrical with full range of
motion.  His motor and sensory functions were not altered and
his deep tendon reflexes were physiological and symmetrical.
Tests of coordination revealed mild gross impairment,
consistent with high level prescription psychotropic
medications.  It was noted he appeared to be drug-
intoxicated.  The diagnoses included chronically progressive
postoperative residuals of cervical spine fusion and a
moderate restriction of full range of movement but no serious
impairment of occupational or recreational functions.  The
examiner specifically found individual unemployability was
not demonstrated by examination but that significantly
disabling psychosomatic and psychosocial disorders were
evident.

A December 1976 VA neurology examination report noted the
veteran was well developed and well nourished but in marked
physical distress with pain in the cervical spine radiating
to the shoulders.  The examiner noted normal symmetry of the
neck and a minimal amount of tenderness on palpation in the
scar area.  There was no evidence of adenopathy.  Flexion of
the cervical spine produced marked pain and extension
produced moderate pain.  It appeared the normal lordotic
curve was somewhat straight.  The diagnoses included status
post anterior cervical decompression with marked residual and
depressive reaction post cervical trauma.

VA hospital records dated in December 1976 noted that during
the 14 days the veteran was an inpatient he did not complain
particularly of neck pain but that when he did his pain was
well controlled with the aspirin used to treat his systemic
illness.

A January 1977 rating decision, inter alia, granted
entitlement to a 60 percent disability rating for
postoperative status cervical spine fusion at C3-4 with
lordotic curve reversal, radiculopathy, and brachial plexus
syndrome, effective from May 1,1975.  The decision also
denied entitlement to a total rating based on individual
unemployability.

A September 1978 private physical capacity evaluation noted
the veteran's performance on activities such as walking 100
yards or balancing on one foot.  It was noted that the
veteran reported he had experienced seizures and the
examiners noted during the evaluation he appeared to
experienced petit mal-type seizures when he stopped his
conversation for 30 to 40 seconds and stared into space.

In a May 1979 VA Form 21-527, Income-Net Worth and Employment
Statement, the veteran reported he had completed 4 years of
high school and that he had completed 2 years of technical or
vocational education in food service management.  He stated
he last worked in August 1974 and that he had worked in
insurance and chemical sales and as a night manager at a fast
food establishment.

A June 1979 VA orthopedic examination report noted the
veteran was well developed and well nourished with evident
minimal chronic physical disability due to his neck.  The
examiner stated the contour of the veteran's neck was normal
and symmetrical without evidence of obvious deformities.
There was no present redness, swelling, local heat, or
tenderness.  Range of motion studies revealed flexion to 30
degrees, extension to 30 degrees, lateral flexion to 30
degrees, and rotation to 65 degrees.  The diagnosis was
status post cervical fusion C3-4, completely recovered by
this examination.

At his VA neurology examination in June 1979 the veteran
complained of increased pain to the neck, right shoulder, and
the proximal portion of his right upper extremity since his
surgery in 1974.  The examiner noted the veteran was status
post cervical fusion of C3 - C4 and that he had an obvious
musculoskeletal spasm of the neck musculature.  It was noted
that the present examination did not reveal any obvious motor
defects and that it was evident the veteran was unfortunately
over-medicated because of his pain which raised a very
serious suspicion of drug-related seizures.

A September 1979 Vocational Industries report from the State
of Wisconsin, Department of Health and Social Services,
Division of Vocational Rehabilitation noted the veteran had
completed high school and that after military service he held
a variety of jobs which he expressed had been short-term
because of his desire to find more interesting work.  It was
noted it appeared his physical condition had also greatly
influenced his previous work performance.  The evaluator's
long range planning opinion was that selected competitive
employment appeared to be feasible for the veteran, possibly
on a part-time basis.  She stated that while the veteran was
very motivated to work he was presently not physically
prepared to succeed in the world of work and recommended he
prepare himself mentally and physically on a gradual basis
for employment.

An October 1979 rating decision denied entitlement to an
increased rating for the veteran's service-connected cervical
spine disorder, denied entitlement to a total rating based on
individual unemployability, and denied entitlement to service
connection for a seizure disorder.  The veteran was notified
of the determination and his appellate rights by
correspondence dated November 6, 1979.

An October 1979 Vocational Industries report noted that in
September the veteran had been observed to have a
deteriorating physical condition, including an inability to
grasp and hold objects, and that the staff considered his
pain to be a very real physical pain.  It was noted that due
to the veteran's present physical pain and condition it was
difficult to make appropriate vocational plans at that time.

In his notice of disagreement the veteran stated he was
unable to find employment because of his service-connected
disability.  He stated he was in constant pain and that the
medication he had been using was causing stomach problems.
In his substantive appeal he reiterated his claim for a total
rating based on individual unemployability and reported VA
physicians had told him he had damaged nerves in his shoulder
which caused the shoulder to dislocate.  He stated he was
unable to lift anything and that he experienced severe pain
to the back of his neck and to the right shoulder.  He
contended the Vocational Industries report demonstrated he
was unable to tolerate physical activity for more than one
and a half hours.

In September 1980, the Board denied entitlement to service
connection for a seizure disorder, denied entitlement to an
increased rating for service-connected postoperative
residuals of cervical spine fusion with brachial plexus
syndrome, and denied entitlement to a total rating based on
individual unemployability.  It was noted that the evidence
of record did not indicate the veteran was precluded from all
forms of substantially gainful employment due to his service-
connected disability.  The Board also noted that the veteran
had been receiving VA educational assistance benefits in 1979
and 1980 in pursuit of an undergraduate standard college
degree.  The decision cited VA regulations including 38
C.F.R. � 3.321, 3.340, 3.341, and 4.16.

Evidence Received After September 1980

In correspondence to VA's Office of Inspector General dated
in December 1998 the veteran noted a third volume of his
claims file had been lost for some time during the period
since he filed his original claim.  He claimed that an
examination of the evidence of record revealed date stamps
had been forged.  He also insinuated VA rating documents may
have been altered to be misleading.

The veteran made numerous similar statements in
correspondence and documents sent to congressional
representatives and governmental executive officers, in
motions for reconsideration of a September 1998 Board
decision, and in Court briefs related to his appeal of the
September 1998 Board decision.

In correspondence dated in February 2002 the veteran
presented statements that may be construed as a motion for
consideration of clear and unmistakable error in the
September 1980 Board decision.  He stated that he had been
unemployable because of service-related disabilities since
1971 and, in essence, that VA had failed to adjudicate or
properly and timely adjudicate claims as to all of the
disabilities related to his injury during active service.  He
also claimed that missing evidence had caused many clear and
unmistakable errors in the adjudication of his claims.  He
requested entitlement to a total rating based on individual
unemployability effective from 1971.

Analysis

Initially, the Board notes that this decision is limited to
matters related to the moving party's motion for
consideration of clear and unmistakable error in a final
Board decision and that all other claims and specific
allegations should be addressed by separate Board, regional
office decisions or by the appropriate entities to whom such
claims have been submitted.

In this case, based upon a comprehensive review of the
record, the Board finds the correct facts, as they were known
at the time, were before the Board in September 1980 and that
the statutory and regulatory provisions extant at the time
were correctly applied.  The Board finds no merit to the
moving party's claim that relevant evidence was either
missing, altered, or forged at the time of the September 1980
Board decision.

The Board notes that while the evidence of record at that
time included several documents with medical and lay opinions
indicative of an employment impairment due to the veteran's
service-connected disability, there were also several
unequivocal VA medical opinions that he was not unemployable.
The Board finds the moving party's disagreement as to the
September 1980 Board decision, in essence, concerns how the
facts were weighed or evaluated and is not clear and
unmistakable error.  As there was no error in that decision
which, had it not been made, would have manifestly changed
the outcome, the Board finds the present motion as to this
matter must be denied.  See 38 C.F.R. � 20.1403(a).

January 1989 Board Decision
Relevant Evidence of Record Prior to January 1989

VA hospital records dated from September 7, 1983, to
September 23, 1983, noted the veteran complained of a
constant dull neck pain with occasional sharp pain to the
posterior neck and radiation to the shoulders, head, and
upper back.  It was noted that Electromyography (EMG) and
nerve conduction studies revealed no evidence of right C5, 6,
7, 8 or T1 radiculopathy.  A pain clinic evaluation and
neurosurgery consultation recommended the veteran be
evaluated by the psychiatric service for biofeedback
treatment of his pain.

VA hospital records dated in March 1983 show the veteran
underwent a right Blankart procedure for recurrent
subluxation of the shoulder.  It was noted he would be
temporarily unemployable for the next 2 months.

A June 1984 VA neuropsychological evaluation noted that the
veteran had earned an Associate Degree in Food Service
Management in 1977-78 and that he had earned a B.A. degree
with a double major in Marketing and Art in September 1983.
It was noted that earlier that year the veteran had undergone
treatment for a chronic dependence on various pain
medications.  The examiner also noted the veteran functioned
in the high average to superior range of intelligence but
demonstrated an impairment in span of attention, greater for
verbal than non-verbal stimuli.  It was noted that it was
possible his "attentional" impairment was at least in part
secondary to chronic drug effects and that some improvement
might be possible with time.  The examiner recommended the
result of the examination be shared with a vocational
counselor when the veteran was ready to seek employment.

VA outpatient treatment records dated in August 1984 noted
the veteran was undergoing a physical therapy program for his
right shoulder and that he remained disabled for at least the
next 2 months.

In November 1984, the veteran requested entitlement to
consideration for extended convalescence and entitlement to a
total rating based on individual unemployability.

VA hospital records dated from December 10, 1984, to December
24, 1984, noted the veteran underwent a cervical myelogram
for status post cervical fusion with intractable pain and
Bristow repair to the left shoulder.  It was noted that the
results of the cervical myelogram were unremarkable and that
the left shoulder Bristow repair was without complications.
The examiner stated the veteran was not able to work and that
he would not be able to work for at least 4 months.

In a February 1985 VA Form 21-8940, Veterans Application for
Increased Compensation Based On Unemployability, the veteran
noted he had completed 4 years of college with a B.A. in Art
and Marketing.  He stated he had lasted worked in August 1974
as a salesman.  He also stated that he was being treated at
the hospital so often that work would be impossible even if
he was not disabled.

VA orthopedic examination in February 1985 noted diagnoses
including residuals of surgically treated fracture
dislocation of the cervical spine at C3-4 with severely
limited mobility and intractable pain.

At his February 1985 VA neurology examination the veteran
complained of severe neck pain.  The examiner noted the
veteran was alert and oriented and that his gait was normal.
His cranial nerves were normal and his motor and sensory
examinations were completely unremarkable.  It was the
examiner's opinion that the veteran had neck pain, headaches,
and seizures secondary to his service injury.

A May 1985 rating decision, inter alia, denied entitlement to
a total rating based on individual unemployability.  It was
noted the evidence did not indicate the veteran was unable to
obtain some form of substantial gainful employment.

A June 12, 1985, VA outpatient treatment report by G.
Mitchell, M.D., noted that after treating the veteran for an
extended period of time he was believed to be totally and
permanently disabled and that his convalescence from service-
connected injuries should be continued for another 6 months
at which time he should be re-examined.

A December 4, 1985, VA outpatient treatment noted that the
veteran's examiners felt it was advisable that his service-
connected 100 percent disability rating be continued and that
he be re-evaluated in approximately 6 to 10 months.

A December 1985 VA orthopedic examination report noted the
veteran appeared dejected with the appearance of chronic pain
and disability.  All of his movements were rather lethargic
and slow.  He had marked difficulty getting in and out of his
shirt because of an inability to raise his arms properly.
There was a reverse curve to the cervical spine as well as
diffuse tenderness.  All head and neck movements were limited
and painful.  The shoulders were well located and in good
stability but movements were markedly limited.  The upper
extremities exhibited no obvious motor involvement but there
was severe pain on a radicular basis throughout and at times
numbness and tingling to finger tips, bilaterally.  It was
the examiner's opinion that the veteran was totally disabled
at that time for any form of gainful employment because of
his service-connected cervical and brain injuries.

A March 5, 1986, VA outpatient treatment report noted the
veteran definitely remained totally and permanently disabled
as a result of service injuries.

A March 1988 VA outpatient treatment report from R. D. Brown,
M.D., Department of Neurology, noted that the veteran's
initial injury occurred during active service and that
subsequent medical treatment had resulted in multiple and
severe neuromuscular deficits.  The examiner noted the
veteran had persistent and permanent neuropathologies to the
upper extremities that placed undue strain on the paraspinal
muscles of the neck and that his chronic pain syndrome
prevented his pursuit of any erect and motile activity for
more than 2 to 3 hours at a time.  It was the examiner's
opinion that the veteran had permanent and progressive neural
and orthopedic injuries and that he was permanently disabled.

In January 1989, the Board denied entitlement to a rating in
excess of 60 percent for the veteran's service-connected
postoperative cervical spine fusion, C3-C4, with lordotic
reversal, radiculopathy, brachial plexus syndrome, and
recurrent shoulder subluxation, and denied entitlement to a
total rating based on individual unemployability.  It was
noted that for entitlement to a total rating based on
individual unemployability the evidence must show that the
veteran's service-connected disabilities were so severe as to
preclude all avenues of gainful employment and that other
factors considered in the determination included the
veteran's education and employment background.  The Board
found that the disabilities for which the veteran had been
granted entitlement to service connection were not currently
shown to be so severe as to preclude his undertaking all
forms of gainful employment.

Pertinent Evidence Received After January 1989

In correspondence dated in February 2002 the veteran
presented statements that may be construed as a motion for
consideration of clear and unmistakable error in the January
1989 Board decision.  As noted above, he stated that he had
been unemployable because of service-related disabilities
since 1971 and that missing evidence had caused many clear
and unmistakable errors in the adjudication of his claims.

Analysis

VA law at the time of the January 1989 Board decision
provided that total disability ratings for compensation could
be assigned where the schedular rating for the service-
connected disability or disabilities was less than 100
percent when it was found that the service-connected
disabilities were sufficient to produce unemployability
without regard to advancing age.  38 C.F.R. �� 3.340, 3.341,
4.16 (1988).

Current VA law provides that CUE in a prior final Board
decision is a very specific and rare kind of error, of fact
or of law, that when called to the attention of later

reviewers compels the conclusion, to which reasonable minds
could not differ, that the result would have been manifestly
different but for the error.  See 38 C.F.R. � 20.1403(a).

Based upon a review of the evidence of record and the
evidence reported in the January 1989 decision, the Board
finds the correct facts, as they were known at the time, were
not properly before the Board.  It is specifically noted that
the prior decision did not report the opinion of the June 12,
1985, VA examiner which noted that after treating the veteran
for an extended period of time he was believed to be totally
and permanently disabled or the opinion of the March 5, 1986,
VA examiner that the veteran definitely remained totally and
permanently disabled as a result of service injuries.

In addition, although the January 1989 decision reported
findings from the December 1985 VA orthopedic examination and
the March 1988 VA neurologist's report, the portions of those
documents which expressed the examiners' opinions that the
veteran was totally disabled and permanently disabled because
of his service-connected disabilities was omitted from the
reporting of facts and the discussion and evaluation.  The
Board notes that while the medical evidence dated earlier
than the December 1985 orthopedic examination may be
construed as indicative of employability or as applying only
to a temporary total disability there is no evidence after
December 1985 as to raise doubts about the credibility or
probative value of the December 1985, March 1986, and March
1988 opinions.

Therefore, the Board finds the January 1989 decision failed
to report or address pertinent evidence then of record and
that this failure was an error which, had it not been made,
would have manifestly changed the outcome.  As the January
1989 Board decision involved clear and unmistakable error in
denying entitlement to a total rating based on individual
unemployability based upon the existing facts and law, the
motion for reversal is granted.

ORDER

The motion alleging clear and unmistakable error in the
Board's September 1980 decision is denied.

The motion alleging clear and unmistakable error is granted
to the extent that the January 1989 Board decision is
reversed as to the denial of entitlement to a total rating
based on individual unemployability and the RO is directed to
assign an effective date as to this matter in accordance with
38 C.F.R. � 20.1406(a) (2001).

	A. BRYANT
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597B that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? In the section entitled "Appeal to the United States
Court of Appeals for Veterans Claims," you are no
longer required to file a copy of your Notice of Appeal
with VA's General Counsel.
? In the section entitled "Representation before VA,"
you no longer need to have filed a "notice of
disagreement ... that led to the decision the Board has
just reviewed for CUE ... on or after November 18, 1988"
as a condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


series: legacy

judge_norm: R F WILLIAMS

judge_role: Member, Board of Veterans' Appeals

disposition: dismissed

text: The appeal is dismissed.

text:
Citation Nr: 0211001
Decision Date: 08/30/02    Archive Date: 09/05/02

DOCKET NO.  96-15 863	)	DATE
	)

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

THE ISSUE

Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for post
traumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

B. P. Tierney, Counsel

INTRODUCTION

The current appeal arose from a July 1995 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Los Angeles, California.  The RO denied "reconsideration
for service connection for PTSD".  In June 2000, the Board
denied entitlement to service connection for PTSD.  In an
April 2001 order, the CAVC vacated the Board's June 2000
decision and remanded the case to provide the Board with an
opportunity to readjudicate the claim under new legislation.
See Luyster v. Gober, 14 Vet. App. 186 (2000); see also
Holliday v. Principi, 14 Vet. App. 280 (2001).

Pursuant to the CAVC's remand, the case was returned to the
Board for further appellate review and the veteran's appeal
was again denied in a July 2002 decision. In light of the
veteran's death, that decision will be vacated in a
separately issued  Board Order to Vacate.

FINDINGS OF FACT

1.  The veteran in this case served on active duty from
December 1965 to October 1967.

2.  Subsequent to the issuance of the July 2002 decision, the
Board was notified by the Department of Veterans Affairs (VA)
Regional Office, Los Angeles, California, that the veteran
died on February [redacted], 2002.

CONCLUSION OF LAW

Because of the death of the veteran, the Board has no
jurisdiction to adjudicate the merits of this claim.
38 U.S.C.A. � 7104(a) (West Supp. 2002); 38 C.F.R. � 20.1302
(2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

On July 22, 2002, the Board issued a decision addressing the
veteran's claim. Thereafter, the Board was notified that the
veteran had died on February [redacted], 2002; the Board subsequently
received a Certificate of Death that confirmed the veteran's
date of death.

The veteran's death prior to the Board's July 22, 2002
decision deprived the Board of jurisdiction over the matter
on appeal.  See 38 U.S.C.A. � 7104(a) (West Supp. 2002);
38 C.F.R. � 20.1302 (2001).  Because the Board was without
jurisdiction to render the July 22, 2002 decision when the
decision was entered, that decision has been VACATED by a
separately issued Board Order to Vacate.  See generally,
38 C.F.R. � 20.904 (2001).

As a matter of law, veterans' claims do not survive their
deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed.
Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997);
Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal
has become moot by virtue of the death of the veteran and
must be dismissed for lack of jurisdiction.  38 U.S.C.A. �
7104(a) (West Supp. 2002); 38 C.F.R. � 20.1302 (2001).

In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran.  38 C.F.R. �
20.1106 (2001).

ORDER

The appeal is dismissed.

R. F. WILLIAMS
Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


judge_norm: MICHAEL D LYON

disposition: denied

text:
Citation Nr: 0301000
Decision Date: 01/16/03    Archive Date: 01/28/03

DOCKET NO.  99-14 831	)	DATE
	)
	)

On appeal from 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 a right elbow
disability.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

M. Ferrandino, Counsel

INTRODUCTION

The appellant was a member of the Army National Guard from
November 1971 to July 1972, with a period of active duty
for training (ACDUTRA) from April 1972 to July 1972.

This appeal comes before the Board of Veterans' Appeals
(Board) from a decision from the Department of Veterans
Affairs (VA) St. Petersburg, Florida Regional Office (RO)
that determined that new and material evidence had not
been submitted to reopen the appellant's claim for service
connection for a right elbow disability.

The Board additionally notes that a hearing was scheduled
at the RO before a Member of the Board in January 2001
pursuant to the appellant's request on the July 1999
substantive appeal.  The appellant failed to report for
this hearing.  Consistent with the November 2000 hearing
notice letter to the appellant, as he failed to appear for
the Board hearing, and a request for a postponement has
not been received, this case is being processed as though
the hearing request has been withdrawn.  See 38 C.F.R. �
20.702.

This case was remanded in March 2001 for further
development.  The case was thereafter returned to the
Board.  In the March 2001 remand it was additionally noted
that a timely Notice of Disagreement had been filed to a
RO decision determining that new and material evidence had
not been submitted to reopen a claim for service
connection for a nervous disorder and informed the RO that
a Statement of the Case (SOC) should be provided and that
only if a timely substantive appeal was filed to the
Statement of the Case, should that issue be returned to
the Board.  Thereafter, an SOC as to the issue of whether
new and material evidence had been submitted to reopen a
claim for service connection for a nervous disorder was
provided in August 2002.  There has been no substantive
appeal filed as to this issue; therefore that issue is not
currently before the Board.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the appeal on the issue of new and material
evidence has been obtained by the RO.

2.  Service connection for a right elbow disability was
denied originally by the RO in February 1996, with notice
to the appellant in March 1996; no timely disagreement was
filed as to this rating action.  In March 1998, the RO
again denied the claim for service connection for a right
elbow disability.  There was notice to the appellant in
April 1998, and he did not timely disagree with that
rating, but rather filed another claim.

3.  Evidence associated with the claims file since the
March 1998 rating decision is not so significant that it
must be considered in order to fairly decide whether the
appellant is entitled to service connection for a right
elbow disability.

CONCLUSIONS OF LAW

1.  The March 1998 decision of the regional office that
denied service connection for a right elbow disability is
final.  38 U.S.C.A. � 7105(c) (West 1991); 38 C.F.R.
�� 3.104, 20.302(a), 20.1103 (2002).

2.  New and material evidence has not been submitted to
reopen the previously denied claim of entitlement to
service connection for right elbow disability.
38 U.S.C.A. �� 5103A, 5108 (West 1991 and Supp. 2002);
38 C.F.R. �� 3.102, 3.156(a) (c), 3.159, 3.326 (2001-
2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board notes that during the pendency of this appeal,
the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000) (VCAA), was signed into
law.  38 U.S.C.A. � 5100 et. seq. (West Supp. 2002).  To
implement the provisions of the law, VA promulgated
regulations published at 66 Fed. Reg. 45,620 (Aug. 29,
2001) (currently codified at 38 C.F.R. �� 3.102, 3.156(a),
3.159, 3.326(a)).  The amendments to 38 C.F.R. � 3.156(a),
3.159(c) and 3.159(c)(4)(iii) apply to any claim to reopen
a finally decided claim received on or after August 29,
2001.  As the present appeal was initiated prior to that
date, it will be decided under the older version of
38 C.F.R. � 3.156 detailed below.

To the extent that provisions of the VCAA apply in the
instant case, in particular regarding to notice to the
appellant, after reviewing the record, the Board is
satisfied that all appropriate notice and development has
been accomplished.  A letter addressing the VCAA
requirements was sent to the appellant in May 2001.  That
letter, other letters sent to the appellant, the statement
of the case (SOC), and the supplemental statement of the
case (SSOC) in this case collectively inform the appellant
of what evidence he must obtain and which evidence VA
would seek to obtain, as required by section 5103(a), as
amended by the VCAA, and by � 3.159(b), as amended by
66 Fed. Reg. at 45,630.  See Quartuccio v. Principi, 16
Vet. App. 183 (2002).  Further, it appears that all
pertinent evidence has been obtained.  Therefore, there is
no evidence that there are additional records that should
be obtained, nor is there evidence that other development
is necessary.  Thus, no further assistance to the
appellant is required to comply with the duty to assist
him.  See 38 U.S.C.A. � 5103A (West Supp. 2002); 38 C.F.R.
�� 3.102, 3.156(a), 3.159, 3.326 (2002).  As all records
that can be obtained have been obtained, there is no more
specific notice indicated in this case.

It was noted in the VCAA that, with respect to previously
disallowed claims, "[n]othing in (38 U.S.C.A. � 5103A)
shall be construed to require the Secretary to reopen a
claim that has been disallowed except when new and
material evidence is presented or secured, as described in
(38 U.S.C.A. � 5108)."  38 U.S.C.A. � 5103A(f) (West Supp.
2002).  Therefore, the recent change to the law has not
modified the requirement that a previously denied claim
may not be reopened and readjudicated unless, and until,
there has been a finding that new and material evidence
has been submitted.  Thus, it is necessary that the case
be adjudicated initially on the issue of whether new and
material evidence is of record to reopen the claims.  If
it is determined that such evidence has been presented,
the claim will be reopened, any required development would
be undertaken.  Elkins v. West, 12 Vet. App. 209 (1999).

A decision by the RO shall be final and binding on all
field offices of the Department of Veterans Affairs as to
conclusions based on the evidence on file at the time VA
issues written notification of the decision.  A final and
binding agency decision shall not be subject to revision
on the same factual basis except by duly constituted
appellate authorities or except where there is clear and
unmistakable error in the decision.  38 U.S.C.A. � 7105
(West 1991); 38 C.F.R. �� 3.104, 20.1103 (2002).

Section 5108 of Title 38 of the United States Code
provides that, "[i]f new and material evidence is
presented or secured with respect to a claim which has
been disallowed, the Secretary shall reopen the claim and
review the former disposition of the claim."  The
regulations provide that new and material evidence means
evidence not previously submitted to agency decisionmakers
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative
nor redundant, and which by itself or in connection with
evidence previously assembled is so significant that it
must be considered in order to fairly decide the merits of
the claim.  38 C.F.R. � 3.156(a) (2001).

Current caselaw provides for the following analysis when a
claimant seeks to reopen a final decision based on new and
material evidence.  First, it must be determined whether
new and material evidence has been presented under 38
C.F.R. � 3.156(a).  Second, if new and material evidence
has been presented, the merits of the claim must be
evaluated after ensuring the duty to assist has been
fulfilled.  See Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998).

The facts in this case show that on a National Guard
examination in November 1971, the appellant had a scar on
the right arm.  He reported history of elbow fracture in
1970 for which he was hospitalized and had an operation.
It was not considered disabling.   His period of ACDUTRA
started in April 1972.

The appellant was seen in June 1972 with complaints of
painful right elbow with limitation of motion.  He
reported a history of crush injury to the right elbow in
April 1969 as a result of an accident while working.
Since that time, he had noted inability to have full
extension of the right elbow.  On examination of the right
elbow, there was no evidence of neurovascular deficit.
The range of motion of the right elbow was from 35-110
degrees.  There was no muscle atrophy.  He had full
pronation and full supination.  The x-rays revealed old
fracture about the elbow joint with degenerative changes
secondary to trauma.

A Medical Board Proceeding from June 1972 shows the
appellant was had status post crush injury to the right
elbow, partial ankylosis of the right elbow and
degenerative changes of the right elbow secondary to
trauma.  It was considered to exist prior to service,
occurring in 1969, and was not aggravated by active duty.
The appellant was discharged by reason of erroneous
induction/enlistment as not meeting induction/enlistment
standards.

Received were private treatment records from March 1969
that show the appellant was treated for laceration and
fracture of the right elbow.

By rating action of February 1996, service connection for
right elbow disability was denied as having preexisted
service and not being aggravated thereby.  There was
notice to the appellant of this decision in March 1996.

By rating action of March 1998, service connection for a
right elbow disability was denied as having existed prior
to service and not being aggravated thereby.  There was no
evidence that the disability permanently worsened as a
result of service.  There was notice to the appellant of
this rating action in April 1998.  A notice of
disagreement with that rating was not filed.  This rating
action is the last final prior decision on this issue.

Evidence received subsequent to the March 1998 rating
action are VA treatment records beginning in March 1998
that show that the appellant was seen with complaints of
chronic pain in the right forearm that had been hurting
intermittently for many years.  He reported numbness and
tingling.  The appellant reported that he had not had
medical treatment.  After examination and diagnostic
testing in October 1998, the appellant was diagnosed with
mild ulnar neuropathy of the right elbow with history of
right elbow fracture.

On VA examination in June 2002, it was noted that the
appellant's claims file and service records were reviewed.
The appellant's history as noted above was reported.  The
appellant reported that he currently had pain along the
ulnar border of the right forearm constantly and
complained of some numbness and tingling in this area.  He
reported that the elbow was stiff.  He felt that his
service aggravated his elbow disability, as prior to
service he did not experience the numbness in the right
forearm that he currently experienced.  The examiner noted
that the medical records indicated that the appellant did
not complain of any numbness or tingling at the time he
was seen in service and had no complaints of numbness or
tingling in the right forearm until 1998.  After
examination and x-rays, the diagnoses were old healed
comminuted fracture right elbow and tardy ulnar nerve
palsy, right upper extremity.  The nature of the
appellant's disorder was the old healed fracture involving
the right elbow and a tardy ulnar palsy affecting the
right upper extremity.  The reason that this was called
tardy was that it frequently did not occur until long
after the original injury to the elbow.  The palsy in the
appellant's right upper extremity involving the ulnar
nerve did not begin until somewhere around 1998.

It was further noted that the history would indicate that
the appellant's current disability existed prior to his
service.  He was on active duty training for the Army
National Guard only approximately three months.  There was
no history of injury while he was in the service and the
ulnar palsy as stated above did not begin until somewhere
around 1998 and was a result of the original injury from
prior to entering the service and was not a result of any
aggravation that occurred in service.  There was no
evidence that the appellant's service aggravated his
current disability and his present symptoms were what
would be naturally expected to occur as a result of the
natural progression of the disability, i.e. the ulnar
palsy usually did not occur until years after the original
injury.  The appellant merely complained of pain in the
right elbow while in the service, these symptoms were
transitory and temporary.

With the above-cited facts for consideration, the Board
will not reopen the claim.

When read together with the appellant's contentions on
appeal, the Board concludes that the new evidence
submitted or associated with the record since the March
1998 RO decision is not so significant that it must be
considered in order to fairly decide the merits of this
claim.  Although the medical evidence cited is "new" in
the sense that it was not of record at the time of the
prior denial of this claim, it would have to be probative,
but the evidence does not provide a medical link showing
that the current right elbow disability, including
peripheral neuropathy, years after service shows
aggravation of a preexisting right elbow disability in
service.  As such, it is not new and material within the
meaning of the applicable law.

Additionally, the Board finds that the appellant's
contention statements essentially reiterate his previously
considered contentions with respect to the claimed
disability, and as such are not considered to be new.  See
Reid v. Derwinski, 2 Vet. App. 312 (1992).  To the extent
that the appellant contends that he has a disability that
was either incurred in or aggravated during service, such
statements, being in effect lay speculation on medical
issues involving the presence or etiology of a disability,
are not probative to this claim and, therefore, are deemed
to be not material.  See Pollard v. Brown, 6 Vet. App. 11
(1993) (pursuant to Espiritu v. Derwinski, 2 Vet. App. 492
(1992), lay testimony attempting to diagnose frostbite or
arthritis in service held to not be competent evidence for
such purpose, and thus not material); see also, Moray v.
Brown, 5 Vet. App. 211 (1993) (lay assertions of medical
causation cannot serve as the predicate to reopen a claim
under 38 U.S.C.A. � 5108).

Accordingly, the Board concludes that the appellant has
not submitted evidence which is new and material such as
to form the basis to reopen and review the previously
denied claim seeking entitlement to service connection for
a right elbow disability.

ORDER

As new and material evidence has not been presented to
reopen a claim for service connection for a right elbow
disability, the claim is denied.

	MICHAEL D. LYON
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


judge_norm: L W TOBIN

condition: headache

text:
Citation Nr: 0302000
Decision Date: 01/31/03    Archive Date: 02/07/03

DOCKET NO.  98-14 939	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New Orleans, Louisiana

THE ISSUE

Entitlement to service connection for residuals of dental
surgery, to include temporomandibular joint (TMJ) syndrome,
arthritis of the jaw, and headaches.

REPRESENTATION

Appellant represented by:	Mark R. Lippman, Attorney at
Law

ATTORNEY FOR THE BOARD

G. Zills, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1943 to October
1945.

This case comes before the Board of Veterans' Appeals (Board)
from a June 1997 RO rating decision which denied service
connection for TMJ syndrome and arthritis of the jaw, and
from an August 1998 rating decision which denied service
connection for headaches.  The veteran claims that all of
these conditions are residuals of dental surgery which she
allegedly had in service.

In a December 1999 decision, the Board denied the claim on
the basis that it was not well grounded.  The veteran
appealed the Board's denial to the United States Court of
Appeals for Veterans Claims (Court).  In November 2000, the
Court granted a joint motion of the parties (the veteran and
the VA Secretary) to vacate the December 1999 Board decision
and remand the case to the Board.  The joint motion noted
that the claim was well grounded, and that it should be
readjudicated on its merits.  In June 2001, the Board
remanded the claim to the RO for additional development.

FINDINGS OF FACT

1.  The veteran did not have tooth extractions in service.

2.  Her TMJ, arthritis of the jaw, and headaches began years
after service, and these problems were not caused by any
incident of service including claimed but unproven tooth
extractions.

CONCLUSION OF LAW

Claimed residuals of dental surgery, including TMJ, arthritis
of the jaw, and headaches, were not incurred in or aggravated
by active service.  38 U.S.C.A. � 1110 (West 1991 & Supp.
2002);  38 C.F.R. � 3.303 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

The veteran served on active duty in the Navy from April 1943
to October 1945. Her service medical records show that all
four wisdom teeth (teeth numbers 1, 16, 17, and 32) plus
another tooth (number 19) were noted to be absent on a March
1943 enlistment examination, as well as on an April 1943
examination shortly after commencing active duty.  Available
dental treatment records from service do not show any tooth
extractions in service.  Her October 1945 separation
examination showed she was missing three wisdom teeth
(numbers 1, 16, and 32) and was also missing tooth number 19.

In September 1948, the veteran was service-connected (for
outpatient treatment purposes only) for dental care for five
of her teeth (numbers 3, 15, 18, 19, and 31).

VA dental outpatient treatment records show the veteran being
seen in February 1997.  At that time, she indicated a history
of headaches twice a week or more.  She was taking medication
daily for hypertension and headaches, and indicated that her
headaches were not as severe.  She was noted to have
tenderness of her TMJs, and she gave a history of TMJ pain
since 1945.  She was noted to have a 38 millimeter opening
between her incisors, and an inferior attachment of the
temporalis.

In April 1997, the veteran submitted her claim for service
connection for residuals of dental surgery, including TMJ
syndrome, arthritis of the jaw, and headaches.  She claimed
that she underwent dental surgery in 1945 in Bayonne, New
Jersey, and that as a result of that surgery, she now
suffered from the indicated conditions.

In support of her claim, the veteran submitted a sworn
statement from her husband dated in September 1997.  In that
statement, her husband reported that he had been stationed
with the veteran in 1945 at the Bayonne Naval Yard
dispensary.  He stated that the veteran's wisdom teeth were
pulled in 1945 but that as a result of said procedure, the
veteran's jaw became "unhinged and locked".  He further
averred that from the time of the surgery until her release,
she experienced an "unhinged" jaw, headaches, and pain in the
neck and jaw area.  Her husband said that the veteran's
operation and treatment might not be in her service medical
records because said records were not kept due to the chaotic
nature of the end of World War II.

In June 1998, the veteran was given a dental examination.
She reported that she had a third molar tooth extraction at
the Navy base in Bayonne, New Jersey in 1945.  She stated
that during the surgery her left TMJ was dislocated and
locked open, and after much manipulation, the surgeon was
able to reposition the TMJ to allow closure.  She said that
following this surgery her TMJ dislocated and locked
spontaneously on an almost daily basis for approximately five
years.  When this would happen she would experience pain and
headaches.  She reported that since this time she had learned
to intercept the dislocation when she felt the condyle begin
to move out of position.  She stated that since 1980 her
headaches had become more intense, although less frequent,
occurring once or twice a week and lasting two to three days.
On physical examination, the examiner noted that the veteran
was unable to chew firm foods and had to confine her diet to
soft foods.  The veteran also reported the onset of tinnitus
sometime following her tooth extraction.  The examiner
reported that teeth 1, 16, 19, 30, and 32 were missing, but
that all had been replaced except for the third molars.  The
veteran's inter-incisal range of motion was 16 millimeters,
overbite was 6 millimeters, overjet was 4 millimeters, right
lateral excursion was 7 millimeters, and left lateral
excursion was 8 millimeters.  No abnormal alveolar bone loss
was noted.  X-ray films were taken which showed significant
bilateral bone erosion on the superior head of each condyle.
The examiner diagnosed the veteran with TMJ dysfunction
syndrome, likely aggravated by a difficult extraction during
which the TMJ was dislocated, osteoarthritis of the TMJ joint
with condylar bone loss likely aggravated by repeated TMJ
dislocation, and tinnitus, of uncertain relation to the TMJ
dysfunction.

In May 2002, the veteran was given another VA dental
examination.  The examiner noted that the veteran's military
records were somewhat inconsistent in that an April 22, 1943
dental exam showed tooth #17 as missing, while a later exam
on October 18, 1945 showed tooth #17 as present.  The
examiner opined that this raised the possibility that the
1943 exam was performed without benefit of X-rays and that
tooth #17 had erupted between then and the 1945 exam.  This
was indicated to be a possibility as the veteran would have
been 23 years old in 1945.  The examiner stated that in any
event, no record of an extraction could be found in the
veteran's military records.  Whether the record was
incomplete was not known.  The veteran gave a similar history
as reported in her 1998 exam, and also stated that she could
not open her mouth wide without dislocating her TMJ.  On
physical examination, teeth 1, 16, 17, 19, 30, and 32 were
missing, with teeth 19 and 30 being replaced by fixed partial
dentures.  The veteran's inter-incisal range of motion
measured 0 to 19 millimeters, right lateral excursion
measured 0 to 5 millimeters, and left lateral excursion
measured 0 to 6 millimeters.  No alveolar bone loss was
noted.  X-rays showed bilateral erosion of bone on the
superior condyle heads bilaterally.  TMJ palpation revealed
mild crepitus bilaterally and an opening click in the left
TMJ.  The examiner's diagnosis was TMJ dysfunction syndrome
with internal joint derangement and osteoarthritis of the TMJ
with condylar bone loss likely secondary to repeated TMJ
dislocation.  The examiner noted that the veteran contended
that her TMJ dysfunction syndrome was secondary to a
difficult extraction performed while she was in the military,
but there was no evidence of such an extraction in her
military record.

Also in May 2002, the veteran was given a VA neurological
examination.  She related a history of headaches since she
was in her 20s.  She described current headaches.  On
physical examination, she was alert and oriented to time,
place, and person.  Cranial nerves II to XII were intact, and
motor examination revealed normal muscle mass, strength, and
tone in both lower extremities.  Upper extremity examination
revealed normal muscle mass and tone and strength was 4/5.
Deep tendon reflexes were trace, and plantar response was
flexor bilaterally.  Sensory examination revealed intact
sensation to all primary sensory modalities.  Cerebellar exam
revealed no dysmetria, and gait and station were within
normal limits.  No significant neurogenic gait abnormality
was noted.  The examiner's diagnosis was chronic muscle
tension headache.

In August 2002, the veteran was again given a VA dental
examination.  The examiner stated that all military records,
both medical and dental, had been reviewed.  It was indicated
that none of the dental records had an entry for an
extraction in Bayonne, New Jersey, and there were no entries
indicating that the veteran had had an extraction performed
while she was in the military.  The records did not show when
the veteran's third molars were removed.  Other information
contained in prior examinations was noted.  The veteran's
inter-incisal range of motion was from 0 to 28 milimeters,
with right lateral excursion measuring 0 to 5 millimeters,
and left lateral excursion also measuring 0 to 5 millimeters.
No bone loss was noted.  X-rays showed bilateral erosion of
the superior condylar heads with narrowed joint space.  TMJ
palpation revealed bilateral crepitus with an opening click
in the left joint.  The examiner's diagnosis was TMJ
dysfunction syndrome and osteoarthritis of the TMJ more than
likely secondary to repeated TMJ dislocation.  The examiner
again stated that no extraction entry could be found in the
veteran's military records.

II.  Analysis

The file shows that through correspondence, the rating
decision, the statement of the case, and the supplemental
statement of the case, the veteran has been notified of the
evidence necessary to substantiate her claim.  Attempts have
been made to obtain all relevant medical and dental records,
and VA examinations have been provided.  The Board finds that
the notice and duty to assist provisions of the law have been
satisfied.  See 38 U.S.C.A. �� 5103, 5103A; 38 C.F.R.
� 3.159.

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.

Service connection will be rebuttably presumed for certain
chronic diseases, such as arthritis, which are manifest to a
compensable degree within the year after active service.
38 U.S.C.A. �� 1110, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.

The veteran's service medical records contain no indication
that an extraction was performed during her period of
service.   A March 1943 enlistment examination shortly before
entering active duty, and an April 1943 examination shortly
after entering active duty, both showed that five teeth
(including all four wisdom teeth) were absent.  An October
1945 separation examination showed that only four teeth
(including three wisdom teeth) were absent.  The veteran
claims that she had an extraction performed in service in
1945 which caused complications leading to her current TMJ
syndrome, arthritis of the jaw, and headaches.  However,
there is no objective medical evidence of record to
demonstrate that an extraction took place while the veteran
was in the military.  The Board notes that at times service
dental records contain discrepencies in identifying
particular teeth missing on entrance into service, and those
missing on separation from service.  Such discrepencies often
are due to common error or oversight.  But here, both a
dental examination just before service, and one right after
entering service, indicated all wisdom teeth were absent, and
this seems to be more likely the case compared to the single
separation examination which noted only three of the wisdom
teeth were missing.  In any event, the service medical
records do not suggest that there were tooth extractions in
service, whether wisdom teeth (as alleged) or any other
teeth.

The only evidence of tooth extractions in service are recent
recollections of the veteran and her husband.  While their
statements may be sincere, they are based on recollections of
events decades earlier, and such recollections (particularly
as to something so unremarkable as when tooth extractions
took place) are not fully reliable and have only limited
probative value.  The Board finds that the actual service
medical records, which show no tooth extractions, are more
credible and probative.  Based on the weight of the credible
evidence, the Board finds that tooth extractions did not
occur in service.

TMJ, arthritis of the jaw, and headaches are first shown in
medical records many years after service.  The theory of the
veteran's claim is that these problems are due to tooth
extractions in service, but since alleged service tooth
extractions are not shown to have occurred, there is no
logical basis to link the current conditions to them.  The
weight of the evidence establishes that the veteran's current
TMJ, arthritis of the jaw, and headaches began years after
service, and these problems were not caused by any incident
of service including claimed but unproven tooth extractions.

After a review of all the evidence, the Board concludes that
claimed residuals of dental surgery, including TMJ syndrome,
arthritis of the jaw, and headaches, were not incurred in or
aggravated by active military service.  As the preponderance
of the evidence is against the claim for service connection,
the benefit-of-the-doubt doctrine does not apply, and the
claim must be denied.  38 U.S.C.A. � 5107(b);  Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for residuals of dental surgery, including
TMJ syndrome, arthritis of the jaw, and headaches, is denied.

	L. W. TOBIN
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

?	These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
?	In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


judge_norm: J E DAY

benefit: insurance

text: The veteran is not eligible for RH insurance under 38 U.S.C.A. § 1922(a) and the appeal is denied.

text:
Citation Nr: 0303000
Decision Date: 02/20/03    Archive Date: 03/05/03

DOCKET NO.  02-00 168A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance
Center in Philadelphia, Pennsylvania

THE ISSUE

Entitlement to Service Disabled Veterans' Insurance (RH)
under 38 U.S.C.A. � 1922(a).

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

C. Fetty, Counsel

INTRODUCTION

The veteran served on active duty from January 1954 to
December 1955.  He was born in August 1935.

This matter arises from a September 2001 determination of the
Department of Veterans Affairs (VA) Regional Office and
Insurance Center (ROIC) in Philadelphia, Pennsylvania, that
denied eligibility for RH insurance under 38 U.S.C.A.
� 1922(a) (West 1991).  The veteran has appealed to the Board
of Veterans' Appeals (Board) for favorable resolution.

The veteran has not requested a hearing on the matter.

FINDINGS OF FACT

1.  In a June 2001 decision, service connection was granted
for each foot, with 30 percent ratings assigned each foot.
These are the veteran's only service-connected disorders.

2.  The veteran filed an application for RH insurance in
August 2001.

3.  The veteran was born in August 1935 and had prostate
cancer in December 1999.

4.  Medical reports reflect that the veteran is 6'0" tall,
weighs 289 pounds, and has a history of substance abuse,
history of anxiety/depression, and history of gout.

5.  At the time of his RH insurance application, the veteran
was not in good health, as defined by the applicable VA
criteria.

CONCLUSION OF LAW

The criteria for entitlement to RH Insurance under 38
U.S.C.A. � 1922 have not been met at any time during the
appeal period.  38 U.S.C.A. �� 1922(a) (West 1991); 38 C.F.R.
� 8.0 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

The veteran underwent a VA cold injury protocol compensation
and pension examination in March 2001.  In that report, he
reported pain and burning in both feet as a result of
frostbite during active service.  He also reported that he
had undergone a prostatectomy for cancer in December 1999 and
that in March 2000 he completed radiation therapy.  He
reported that he also had hypertension and arthritis.  He was
described as 6 feet tall and weighing 308 pounds.

By rating decision dated in June 2001, the veteran was
granted service connection for residuals of cold injuries to
each foot and rated 30 percent disabling for the left foot
and 30 percent disabling for the right foot.

On the veteran's August 2001 application for VA service-
disabled insurance, he wrote that he had underwent prostate
surgery in January 2000.  He reported that he was 6 feet tall
and weighed 289 pounds.  He reported that he was working
part-time due to medical problems.

In September 2001, the ROIC denied the veteran's claim for
Service-Disabled Veterans (RH) Insurance because he had been
treated for prostate cancer and thus did not meet the
requirements for "good health."

In the veteran's October 2001 Notice of Disagreement, he
wrote that he was in good health.  He wrote that while he had
been treated for prostate cancer, current tests were all
negative for cancer and his doctor felt that the cancer was
in complete remission.

In a December 2001 statement of the case (SOC), the ROIC
continued its denial of the veteran's claim.  It informed the
veteran that he had a history of prostate cancer, substance
abuse, anxiety/depression, gout, and hypertension.  The SOC
informed him that no more than 300 mortality debits may be
assigned and informed him that his age, height, and weight
warranted 175 debits (M29-1, Part V, Chapter 2, Build),
treatment for prostate cancer within 2 years warranted 2000
debits (M29-1, Part V, Chapter 2, Tumor), a history of
substance abuse diagnosed within 5 years warranted 500 debits
(M29-1, Part V, Chapter 2, Drug Addiction), a history of
anxiety/depression warranted 75 debits (M29-1, Part V,
Chapter 2, Neuroses), and a history of gout warranted 50
debits (M29-1, Part V, Chapter 2, Gout).   His total debits
were 2,800.

In the veteran's January 2002 Substantive Appeal, he wrote
that he felt he was presently in good health.

In February 2002, the veteran's representative argued that
because prostate cancer was in full remission, it should be
discarded.

In a December 2002 letter, the veteran was informed of the
provisions of the Veterans Claims Assistance Act of 2000
(VCAA).  He was informed of the evidence necessary to
substantiate his claim and provided an opportunity to submit
such evidence.  He was informed that he could submit such
evidence or if he identified the evidence VA would obtain it
for him.

II.  Legal Analysis

The VCAA and the implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim.  The VCAA requires VA to notify the claimant and
the claimant's representative of any information, and any
medical or lay evidence, not previously provided to the
Secretary (i.e., to VA) that is necessary to substantiate the
claim.  VA is to specifically inform the claimant and the
claimant's representative, if any, of which portion, if any,
of the evidence is to be provided by the claimant and which
part, if any, VA will attempt to obtain on behalf of the
claimant.  Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002).

The Board finds that the veteran is not prejudiced by its
consideration of the claim pursuant to this new legislation
and implementing regulations insofar as VA has already met
all notice and duty to assist obligations under the VCAA.
The veteran has been notified as to the laws and regulations
governing eligibility for VA service-disabled insurance.  By
letter, rating action, and an SOC, he has been advised of the
evidence considered in connection with his claim, and what
evidence that is potentially probative or not probative of
the claim.  38 C.F.R. � 3.159(b)(1), (e).  All evidence
pertinent to the claim is of record.

The Board emphasizes that by letter dated in December 2002,
the veteran was notified of the provisions of the VCAA and
its potential impact on his claim, allowing him an additional
period of time in which to present evidence and/or argument
in support of the appeal.  In January 2003, the veteran
responded to the letter.

For the reasons set out above, the veteran will not be
prejudiced as a result of the Board deciding the claim at
this time.

Under the provisions of 38 U.S.C.A. � 1922(a), a veteran may
be entitled to RH insurance when it is determined that he has
a compensable service-connected disability and he applies in
writing for such insurance within two years of the date
service connection was granted.  38 U.S.C.A. � 1922(a) (West
1991).

In order to be eligible for RH insurance, the veteran must be
in "good health," excepting any service connected
disabilities.  The law requires the Secretary to establish
"standards of good health" to determine if "the applicant is,
from clinical or other evidence, free from disease, injury,
abnormality, infirmity, or residual of disease or injury to a
degree that would tend to weaken or impair the normal
functions of the mind or body or to shorten life."
38 U.S.C.A. � 1922(a) (West 1991); 38 C.F.R. � 8.0 (2002).
The Secretary has issued Veterans Benefits Manual M29-1, Part
V, Insurance Operations Underwriting Procedures (M29-1),
which contains guidelines for evaluating applications for the
various insurance programs administered by the VA.

In the present case, the veteran clearly filed a timely
written application for RH insurance, based on a June 2001
grant of service connection with a compensable rating; that
much is not in dispute.  The only question at issue is
whether the veteran is otherwise in "good health".

"Good health" is determined by a system of numerical ratings
used as a means of classifying or grouping applicants
according to their state of health.  Mortality debits for
existing impairments are added and credits for favorable
features are subtracted.  The total of these numerically
expressed debits and credits is the mortality ratio of the
risk.  Applications for Service Disabled Veterans Insurance
(RH) will be acceptable if the non-service connected
disability does not exceed 300 percent mortality (300
debits).  M29-1, Part V, Chapter 1, Advance Change 1-77,
Paragraph 1.12d(1).

The veteran was born in 1935.  On his application for
insurance, the veteran reported that he had prostate cancer
in December 1999, but completed radiation therapy in March
2000, and has not had any recurrence of cancer since then.
He reported that he was 6 feet tall and weighed 289 pounds.
VA records reflect that the veteran has a history of
substance abuse, anxiety/depression, gout, and hypertension
for which service connection has not been established.
According to the M29-1 manual, a veteran over 60, weighing
279 pounds, and standing 6'0" is assigned 175 debits.
Treatment for prostate cancer within 2 years warrants 2000
debits, which drops to 1700 debits at the three-year point.
A history of substance abuse diagnosed within 5 years
warrants 500 debits, which drops to 150 debits at the six to
10 year point.  A history of anxiety/depression warrants 75
debits, but drops to 25 debits if there is no treatment for
over 2 years.  A history of gout warrants 50 debits, but
drops to zero debits after 2 years.  Based on these findings,
the total debits are 2800, as the RO has correctly found;
however, if each category (except build) decreases on account
of time lapse, the total debit could arguably drop to 2,050
during the appeal period.  Nevertheless, this total is still
well in excess of the 300 debit maximum.  M29-1, part V,
Chapter 1, Advance Change 1-77, Paragraph 1.12d(1).

Because the uncontroverted medical evidence clearly
establishes the presence of a mortality ratio of risk in
excess of 300, the veteran can not be found to be in "good
health."  Veterans Benefits Manual M29-1, Part V, Insurance
Operations Underwriting Procedures.  As such, the veteran's
application must be rejected due to ineligibility under 38
U.S.C.A. � 1922.

ORDER

The veteran is not eligible for RH insurance under 38
U.S.C.A. � 1922(a) and the appeal is denied.

____________________________________________
	J. E. Day
	Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

?	These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
?	In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.