judge_norm: M CHEEK

condition: arthritis

text: The veteran’s claim for service connection for rheumatoid arthritis is not well-grounded; therefore, the appeal is denied.

disposition: remanded

text:
Citation NR: 9620000
Decision Date: 07/17/96		Archive Date: 07/31/96
DOCKET NO.  94-47 501	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for rheumatoid
arthritis.

2.  Entitlement to service connection for peripheral
neuropathy of the left lower extremity.

3.  Entitlement to service connection for residuals of a back
injury.

4.  Entitlement to an increased (compensable) rating for
residuals of a left ankle injury.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

G. Bridges, Associate Counsel

INTRODUCTION

The veteran served on active duty from May 1954 to April
1965.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 1994 decision by the RO that, inter
alia, granted service connection for residuals of a left
ankle fracture and assigned a noncompensable evaluation
therefor.  In that same decision, the RO denied service
connection for rheumatoid arthritis, residuals of a back
injury, and peripheral neuropathy of the left lower
extremity.

In its January 1995 Supplemental Statement of the Case, the
RO listed service connection for peripheral neuropathy of the
right lower extremity as an issue.  However, the veteran
specifically withdrew his claim for service connection for
that disability and continued to prosecute his appeal as to
peripheral neuropathy involving his left lower extremity,
withdrawing his claim for disability benefits for spurs.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that rheumatoid arthritis was first
diagnosed during service and that he currently has
manifestations of that disability, for which service
connection should be granted.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
evidence has not been presented to justify a belief by a fair
and impartial individual that the claim of service connection
for rheumatoid arthritis is well-grounded.

FINDING OF FACT

There is no competent medical evidence of record showing that
the veteran currently has rheumatoid arthritis or that he had
rheumatoid arthritis any time during active service or within
one year of his discharge from service.

CONCLUSION OF LAW

The claim for service connection for rheumatoid arthritis is
not well-grounded.
38 U.S.C.A. �� 1110, 1112, 1131, 5107 (West 1991 & Supp.
1995); 38 C.F.R. �� 3.307, 3.309 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran states that in 1963 he developed �early�
rheumatoid arthritis.  Service medical records indicate that
in August of that year, he complained of stiffness and
swelling in his metacarpal phalanges, bilaterally, and
soreness and stiffness in his shoulders.  The clinical
impression was early rheumatoid arthritis.  Laboratory tests
did not confirm that impression, as a lupus erythematosus
screen proved to be negative.  A few days later, he underwent
an annual physical examination, during which he reported
having or having had painful or swollen joints and arthritis
or rheumatism.  The examiner noted the presence of swollen,
painful joints in the hands and across the back and
shoulders, but indicated that the condition was
�asymptomatic.�

On his April 1965 separation examination, the veteran
reported having complaints of swollen, painful joints, but
indicated that he had never had arthritis or rheumatism.  The
examiner noted no significant abnormalities.

Following an August 1993 examination, an examiner diagnosed
degenerative joint disease of the lumbar spine.  On a March
1995 VA radiological examination, degenerative joint disease
was observed in the veteran�s left knee, cervical spine, left
ankle, hands, lumbar spine, and great toe metacarpophalangeal
joints of each foot.  Notably, the examiner stated, �[t]he
[veteran] may have had psoriatic arthritis or rheumatoid
disease in the past but there is no evidence of active
psoriatic arthritis or rheumatoid arthritis at this time.�

Analysis

The threshold question to be answered is whether the veteran
has presented a well-grounded claim.  38 U.S.C.A. � 5107
(West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  A
well-grounded claim is defined as a "plausible claim, one
which is meritorious on its own or capable of
substantiation."  Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990).  Section 5107 provides that the
claimant's submission of a well-grounded claim gives rise to
VA's duty to assist and to adjudicate the claim.  In short,
VA is not required to adjudicate a claim until after the
veteran has met his initial burden of submitting a well-
grounded one.

"Although the claim need not be conclusive, the statute [�
5107] provides that [the claim] must be accompanied by
evidence" in order to be considered well-grounded.  Tirpak v.
Derwinski, 2 Vet.App. 609, 611 (1992).  In a claim of service
connection, this means that evidence must be presented which
in some fashion links the claimed disability to a period of
military service or an already service-connected disability.
See 38 U.S.C.A. �� 1110, 1131 (West 1991); 38 C.F.R. ��
3.303, 3.310 (1995); Rabideau v. Derwinski, 2 Vet.App. 141,
143 (1992).  Evidence submitted in support of the claim is
presumed to be true for purposes of determining whether the
claim is well-grounded.  King v. Brown, 5 Vet.App. 19, 21
(1993).  However, lay assertions of medical diagnosis or
causation do not constitute competent evidence sufficient to
render a claim well-grounded.  Grottveit v. Brown, 5 Vet.App.
91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495
(1992).

In the present case, the veteran maintains that he should be
granted service connection for rheumatoid arthritis because
the condition had its initial onset in service.  The clinical
record confirms that he presented with symptoms of swelling
and discomfort in his joints which were thought to be
representative of rheumatoid arthritis on a clinical basis.
However, laboratory testing ruled this out.  There is no
showing in the medical record that rheumatoid arthritis
became manifest to a compensable degree within one year of
his discharge from service, and, more importantly, there is
no evidence that he currently has the condition.  For a claim
of service connection to be deemed plausible, there must be
competent medical evidence of both a current disability and
competent medical evidence of a causal relationship between
that current disability and service or an already service-
connected disability.  Caluza v. Brown, 7 Vet.App. 498, 506
(1995); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992).
That has not been demonstrated here.

Where a claim is not well-grounded, VA has no statutory duty
to assist the claimant in developing the claim, although VA
may be obligated under 38 U.S.C.A. � 5103(a) to advise a
claimant of evidence needed to complete the application for
benefits.  This obligation depends upon the particular facts
of each case and the extent to which the Secretary of the
Department of Veterans Affairs has advised the claimant of
the evidence necessary to be submitted with a VA benefits
claim.  Robinette v. Brown, 8 Vet.App. 69 (1995).

In this case, VA fulfilled its obligation under section
5103(a) because, in its October 1994 Statement of the Case,
it informed the veteran of its reasons for the denial of his
claim for entitlement to service connection for rheumatoid
arthritis, noting that it was because the condition had not
been shown to have been incurred in or aggravated by service
nor shown to have become manifested to a compensable degree
within one year of his discharge from service.  38 C.F.R.
� 3.309 (1995).

In the present case, the veteran has produced neither
competent medical evidence that he had rheumatoid arthritis
during service nor cognizable proof that it became manifested
to a compensable degree within one year of his discharge from
active service.  He also has adduced no medical evidence that
a post service development of the condition is otherwise due
to service.  Hence,  his claim is not well-grounded.

ORDER

The veteran�s claim for service connection for rheumatoid
arthritis is not well-grounded; therefore, the appeal is
denied.

REMAND

Following an August 1993 VA examination, the examiner
indicated that the veteran�s peripheral neuropathy was
possibly secondary to trauma.  No elaboration was provided.
Although a subsequent evaluation revealed that the cause of
neuropathy was likely attributable to diabetes, that
examination appears to have been conducted without benefit of
a complete record, as the veteran has indicated he has
received treatment for all of his disorders at a VA medical
facility in Delaware.  These records should be obtained.

The veteran also contends that a noncompensable evaluation
for his ankle injury does not adequately reflect the severity
of his disability, indicating during an August 1993 VA
examination that his foot had been crushed in 1961 and a cast
had been applied.  Unfortunately, the August 1993 VA
examination provided no specific findings with respect to his
left ankle.  Although in March 1995 the examiner conducted
range of motion studies, no mention was made of the extent of
disability, i.e., moderate or marked disability.  The
information provided does not relate directly to the rating
criteria set forth in 38 C.F.R. � 4.71(a), Diagnostic Codes
5270 - 5274 (1995).  See Massey v. Brown, 7 Vet.App. 204
(1994).

The United States Court of Veterans Appeals (Court) has
stressed that, in evaluating disabilities of the joints, VA
has a duty to determine whether the joint in question
exhibits weakened movement, excess fatigability, or
incoordination, and whether pain could significantly limit
functional ability during flare-ups or when the joint is used
repeatedly over a period of time.  See DeLuca v. Brown,
8 Vet.App. 202 (1995); 38 C.F.R. �� 4.40, 4.45 (1995).  The
Court has also indicated that these determinations should be
made by an examiner and should be portrayed by the examiner
in terms of the additional loss in range of motion due to
these factors (i.e., in addition to any actual loss in range
of motion noted upon clinical evaluation).  Because the VA
examiner did not undertake this analysis in the present case,
the matter needs to be explored further and remanded for a
new VA examination.

For the reasons stated, this case is REMANDED to the RO for
the following actions:

1.  The RO should request the veteran to
provide the RO with information with
regard to any evidence of current or past
treatment for his left ankle disability,
peripheral neuropathy of the left lower
extremity, and residuals of a back injury
that has not already been made part of
the record, and should assist him in
obtaining such evidence following
procedures set forth in 38 C.F.R. � 3.159
(1995).

2.  The veteran should be scheduled for a
VA orthopedic examination to determine
the current severity of his ankle
disability.  All indicated tests,
including range of motion studies,
measured in degrees, and X-ray studies,
should be conducted.  The examiner should
indicate whether the veteran�s range of
motion of the ankle is restricted and, if
so, whether such limitation is moderate
or marked in degree or is tantamount to
ankylosis.  The examiner should, in
addition, render an opinion as to

whether malunion of the ankle joint is
manifested and, if so, whether such
reflects moderate or marked deformity.
The examiner should also indicate the
extent to which the veteran experiences
weakness, excess fatigability,
incoordination, and pain due to repeated
use or flare-ups, should portray these
factors in terms of the additional loss
in range of motion due to these factors,
and should describe the overall degree of
functional impairment caused by the
underlying ankle disability.

3.  The RO should take adjudicatory
action on the veteran�s claim of
entitlement to an increased rating for
the subject disability, taking into
consideration any degenerative arthritic
pathology found and any �separate and
distinct� manifestations due to the
inservice injury.  Esteban v. Brown,
6 Vet.App. 259 (1994).  The RO should
also review the veteran�s claims file in
its entirety and determine if his claims
for service connection for peripheral
neuropathy of the left lower extremity
and residuals of a back injury are well-
grounded, triggering VA�s duty to assist.
If any benefit sought is not granted, a
supplemental statement of the case should
be issued.

After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder shall be returned to this Board for
further appellate review.  No action is required of the
veteran until he receives further notice.  The purposes of
this remand are to procure clarifying data and to comply with
governing adjudicative procedures.  The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of this appeal.

	M. CHEEK
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans�
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans� Judicial Review Act, Pub.
L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans� Appeals.  Appellate rights do not
attach to those issues addressed in the remand portion of the
Board�s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1995).
- 2 -


series: legacy

judge_norm: STEVEN L KELLER

judge_role: Member, Board of Veterans' Appeals

disposition: dismissed

text: The appeal is dismissed.

text:
Citation NR: 9622000
Decision Date: 08/06/96		Archive Date: 08/15/96
DOCKET NO.  93-23 416	)	DATE
	)
	RECONSIDERATION	)
	)

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

THE ISSUE

Waiver of recovery of loan guaranty indebtedness.

REPRESENTATION

Appellant represented by:	AMVETS

ATTORNEY FOR THE BOARD

Barry F. Bohan, Counsel

INTRODUCTION

The veteran served on active duty in the United States Army
from to November 1950 to November 1953.

This appeal arose from an October 1991 decision of the
Committee on Waivers and Compromises of the United States
Department of Veterans Affairs [VA] Regional Office in
Houston, Texas which denied the veteran�s request for waiver
of VA loan guaranty indebtedness in the amount of $21,454.36,
plus accrued interest thereon.  38 U.S.C.A. � 5302 (West
1991).  The veteran duly appealed to the Board of Veterans�
Appeals [the Board].

In an August 1995 decision, the Board denied the veteran�s
appeal, based on the application of the statutory standard of
equity and good conscience, including perceived lack of
financial hardship. 38 U.S.C.A. � 5302 (West 1991); 38 C.F.R.
�� 1.964 (a)(3), 1.965(a)(3) (1995).  In December 1995, the
veteran wrote to the Board, alleging that the Board�s August
1995 decision contained a miscalculation of the funds which
he had available to repay the charged VA loan guaranty
indebtedness. Based on the veteran�s letter, reconsideration
of the case by an expanded panel of the Board was ordered on
May 15, 1996.  38 C.F.R. � 20.1000 (1995).

On May 24, 1996, the Board was received a letter from the
Houston VA Regional Office which included a copy of a death
certificate which indicated that the veteran had died on or
about February [redacted] 1996.   The appeal was not under active
consideration by the expanded Board panel at the time the
Board was notified of the veteran�s death.

FINDINGS OF FACT

1.  The veteran in this case served on active duty from
November 1950 to November 1953.

2.  On May 24, 1996, the Board was notified by the Department
of Veterans Affairs Regional Office, Houston, Texas, that the
veteran died on or about February [redacted] 1996.

3.  At the time the Board was notified of the veteran�s
death, this appeal was not under active consideration on the
merits by a Member or panel of Members of the Board.

CONCLUSION OF LAW

Because of the death of the veteran prior to commencement of
active consideration of the appeal by the reconsideration
panel, the Board will exercise its discretion not to complete
action on the merits of this case.  38 U.S.C.A. � 7104(a)
(West Supp. 1995); 38 C.F.R. � 20.1302 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a matter of law, veterans� claims do not survive their
deaths.  Vda de Landicho v. Brown, 7 Vet.App. 42, 47 (1994).
Unfortunately, the veteran died during the pendency of the
reconsideration of his appeal and his request for waiver of
VA loan guaranty indebtedness is now moot.  Moreover, as the
appeal was not under consideration on the merits at the time
of the veteran�s death, it would serve no useful purpose now
to initiate reconsideration of the appeal on the merits.
Therefore, the Board will exercise its discretion not to
complete action on the merits of this appeal and will,
instead, dismiss the appeal.  38 C.F.R. � 20.1302 (1995).

In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or of any derivative
claim brought by a survivor of the veteran.  38 C.F.R.
� 20.1106 (1995).

ORDER

The appeal is dismissed.

___________________________
____________________________
        DEREK R. BROWN
RICHARD B. STANDEFER
Member, Board of Veterans� Appeals            Member, Board
of Veterans� Appeals

	STEVEN L. KELLER
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision is the
notice of the action taken on this appeal by the Board of
Veterans' Appeals.

- 2 -


judge_norm: GARY L GICK

text:
Citation NR: 9623000
Decision Date: 08/16/96		Archive Date: 08/28/96
DOCKET NO.  95-01 893	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased evaluation for postoperative
residuals of dislocation of the left (major) shoulder,
currently evaluated as 10 percent disabling.

REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

Daniel G. Krasnegor, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1958 to
February 1962

This matter comes before the Board of Veterans� Appeals
(Board) on appeal of a January 1993 rating determination by
the Department of Veterans Affairs (VA) Regional Office (RO).

In an August 1996 statement, the veteran's representative
requested that the veteran be separately evaluated for a
tender and painful scar on his left shoulder.  This matter is
referred to the RO for appropriate action.

REMAND

The veteran's service medical records reflect that in July
1960, he underwent a capsulorrhaphy of the left shoulder due
to recurrent dislocation of that shoulder.

In September 1992, the veteran was afforded a VA examination.
He was noted to have limited range of motion of his left
shoulder, which was noted to be secondary to pain.  There was
additionally X-ray evidence of osteoarthritis.  Diagnosis was
bursitis of the left shoulder, not causally related to the
previous surgery.

In the January 1993 rating action on appeal the RO
established service connection for residuals of left shoulder
surgery and assigned a 10 percent rating for this disability
under Diagnostic Code 5010.  Service connection for bursitis
was denied.

VA outpatient treatment records reflect that the veteran was
subsequently seen on many occasions for complaints of pain in
the left shoulder.  Arthrogram and CT of the left shoulder in
August 1993 revealed broken surgical wires and resulted in
the following impression:  findings are consistent with old
injury to the glenoid labrum inferiorly; no evidence for
rotator cuff tear.

In September 1995, the United States Court of Veterans
Appeals (Court) held that when a diagnostic code provides for
compensation based solely upon limitation of motion, that the
provisions of 38 C.F.R. �� 4.40 and 4.45 (1995) must also be
considered, and that examinations upon which the rating
decisions are based must adequately portray the extent of
functional loss due to pain �on use or due to flare-ups.�
DeLuca v. Brown, 8 Vet App 202 (1995).  The Court emphasized
that �[i]t is essential that the [rating] examination . . .
adequately portray the . . . functional loss� (emphasis added
by the Court).  In DeLuca the Court held that when the
veteran claims functional loss due to pain, �the medical
examiner must be asked to express an opinion on whether pain
could significantly limit functional ability during flare-ups
or when the [joint] is used repeatedly over a period of
time.�  It does not appear that the previous examination
addressed the degree of functional loss due to pain as set
forth in DeLuca.

In accordance with the statutory duty to assist the veteran
in the development of evidence pertinent to his claim, the
case is REMANDED for the following action:

1.  The RO should request the veteran to
identify all physicians who have treated
him since May 1994 for his shoulder
disability.  The RO should then obtain
medical records from all sources
identified by the veteran which are not
already of record.

2. The RO should arrange for the veteran to
be scheduled for examination to determine the
nature and severity of all residual
impairment resulting from his in-service left
shoulder surgery, to include functional loss
due to pain on use or during flare-ups.  The
claims folder should be provided to the
examiner for review in conjunction with the
examination.  The examiner should record
pertinent complaints, symptoms, and clinical
findings.  All testing deemed necessary
should be performed.  All excursions of
movement of the left shoulder should be
specifically recorded in numbers of degrees
and any potion of the arcs of motion which
are painful should be so designated.  The
examiner should comment on the functional
range of motion of the left shoulder, that
is, that range of motion which the veteran
can achieve without pain, as well as any
indications of painful motion, such as facial
expression, muscle spasm, crepitation, etc.
The examiner should express an opinion as to
whether pain is supported by adequate
pathology and the degree to which weakness,
pain, or other symptoms attributable to
diagnosed pathology affects the veteran�s
ordinary activities, to include functional
loss due to pain on use or during flare-ups.
The examiner is also requested to opine as to
whether, and if so, the extent to which, the
veteran's symptoms due to his service-
connected disability may be distinguished
from those attributed to pathology unrelated
to service, to include bursitis.

3.  Thereafter, the case should be
reviewed by the RO.  Consideration should
be accorded to whether 38 C.F.R. �� 4.40,
4.45 apply, and if so, whether they
provide a basis for any change in the
award of compensation benefits.  If the
benefits sought are not granted, the vet-
eran and his representative should be
furnished a supplemental statement of the
case and an opportunity to respond to
this document.

The case should then be returned to the Board for further
appellate consideration.  By this action the Board intimates
no opinion, legal or factual, as to the ultimate disposition
warranted.

	GARY L. GICK
	Member, Board of Veterans' Appeals

(CONTINUED ON NEXT PAGE)

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1995).
- 2 -


judge_norm: WAYNE M BRAEUER

disposition: granted

benefit: pension

text:
Citation NR: 9624000
Decision Date: 08/28/96		Archive Date: 09/04/96
DOCKET NO.  94-44 242	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUE

Entitlement to waiver of recovery of an overpayment of
Section 306 disability pension benefits.

REPRESENTATION

Appellant represented by:	AMVETS

ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel

INTRODUCTION

The veteran served on active duty from July to December 1944.
This is an appeal from a May 1994 decision by the Department
of Veterans Affairs (VA) Regional Office, Cleveland, Ohio,
denying entitlement to waiver of recovery of an overpayment
of Section 306 disability pension benefits.  It was held that
there had been bad faith on the part of the veteran in
creation of the overpayment and that, if there were no bad
faith, recovery of the overpayment would not be against the
principle of equity and good conscience.  The overpayment is
in the amount of $6,784.

In an informal hearing presentation dated in July 1996, the
veteran's representative raised the issues of increased
ratings for the veteran's psychiatric, low back and foot
disorders and service connection for duodenal ulcer disease.
These matters are not in an appellate status and are referred
to the regional office for appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in substance, that waiver of recovery
of the overpayment of Section 306 disability pension should
be granted by the VA since he had no intention to defraud the
VA by not reporting his earnings.  He believed that he could
earn a minimum income and still receive full VA benefits as
in the case of Social Security benefits.  He took the part-
time job because he needed to have extra money in order to
pay his wife's medical bills.  His wife must have dialysis
treatment and that treatment is very expensive.  He was being
sued by a hospital because of outstanding medical bills.  If
he had not been desperate to pay his wife's medical bills, he
would have never taken the job in the first place.  He is
71 years old and is in poor health himself.  The overpayment
has caused him great stress not only financially but
mentally.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence supports
the veteran's claim for a waiver of recovery of the
overpayment in question.

FINDINGS OF FACT

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

2.  The veteran had been in receipt of Section 306 disability
pension benefits for many years.  His wife was included as a
dependent on his award.  He had reported that their only
income consisted of their Social Security benefits.

3.  In 1993, the regional office received information that
the veteran had received earnings of $5,759 in 1990 and
interest of $765 and that his wife had received $729
retirement income during that year.

4.  In September 1993, the regional office terminated the
veteran's award of Section 306 disability pension effective
in January 1991 due to excess income.  The overpayment in
question resulted from this action.

5.  Although there was no willful intent on the veteran's
part to obtain VA benefits to which he was not entitled,
there was some fault on his part in creation of the
overpayment by failing to report the full amount of his
family income to the VA.

6.  Recovery of the overpayment would seriously impair the
veteran's ability to meet his necessary living expenses
including medical expenses.

CONCLUSION OF LAW

There was no bad faith on the part of the veteran in creation
of the overpayment of Section 306 disability pension.
Recovery of the overpayment would be against the principle of
equity and good conscience.  38 U.S.C.A. �� 5107, 5302 (West
1991); 38 C.F.R. � 1.965 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that it has found the veteran's claim to be
"well grounded" within the meaning of 38 U.S.C.A. � 5107(a);
effective on and after September 1, 1991.  That is, the Board
finds that he has presented a claim which is plausible.  The
Board is also satisfied that all relevant facts have been
properly developed.

The record reflects that the veteran had been in receipt of
Section 306 disability pension benefits for many years.  His
wife was included as a dependent on his award.  He had
reported that their only income consisted of their Social
Security benefits.

The record further reflects that in 1993 the regional office
received information that the veteran had received earnings
of $5,759 and interest of $765 in 1990 and that his wife had
received $729 retirement income during that year.  In
September 1993 the regional office terminated the veteran's
award of Section 306 disability pension effective in
January 1991 due to excess income for 1990.  The overpayment
in question resulted from this action.

The regional office Committee on Waivers and Compromises held
that there had been bad faith on the part of the veteran in
creation of the overpayment.  It was further held that even
if bad faith did not exist, recovery of the overpayment would
not be against the principle of equity and good conscience.

The law precludes waiver of recovery of an overpayment or
waiver of collection of any indebtedness where there exists,
in connection with the claim for such waiver, an indication
of fraud, misrepresentation or bad faith on the part of the
claimant.  38 U.S.C.A. � 5302(c).

Bad faith generally describes unfair or deceptive dealing by
one who seeks to gain thereby at another's expense.
38 C.F.R. � 1.965.  The burden of proof lies solely with the
VA.

In this particular case, the evidence reflects that the
veteran had reported on his eligibility verification report
submitted in late 1990 that the only income for himself and
his wife consisted of their Social Security benefits.
Information received by the VA in 1993 reflected that in fact
the veteran had received wages and interest during 1990 and
that his wife had received a retirement benefit.  Thus, the
income information submitted by the veteran to the VA
obviously was not correct.  However, the veteran has
maintained that he was under the impression that he was able
to earn a certain minimum income and still receive his full
VA disability pension as in the case of Social Security
benefits and that he had no intent to defraud the VA by not
reporting his earnings.  The record indicates that the
earnings were only some $5,700 and the veteran has indicated
that they were received from part-time employment
necessitated as a result of his wife's medical bills.  The
record indicates that the veteran only has an elementary
school education and he had been receiving Section 306
disability pension for a number of years at the protected
rate as long as his income did not exceed a certain limit.
In the Board's opinion, the evidence does not establish a
willful intent on the part of the veteran to obtain VA
disability pension benefits to which he was not entitled.
Thus, his request for waiver of recovery of the overpayment
would not be barred on the basis of bad faith.  38 U.S.C.A.
� 5302(c); 38 C.F.R. � 1.965.

The remaining question for consideration is whether recovery
of the overpayment would be against the principle of equity
and good conscience.  In this regard, the facts and
circumstances in the particular case must be weighed
carefully.  Different factors will enter to such decision,
such as the relative fault of the debtor, weighing such fault
against any fault on the Government's part, whether there was
any unjust enrichment, whether there would be undue financial
hardship resulting from recovery of the overpayment, whether
recovery of the overpayment would defeat the purpose of
benefits otherwise authorized, and whether the debtor
relinquished a valuable right or changed position by reason
of having relied upon the erroneous benefit.  38 U.S.C.A.
� 5302; 38 C.F.R. � 1.965.

In this case, as indicated previously, the Board finds that
there was no bad faith on the part of the veteran in creation
of the overpayment.  The record indicates that there was some
fault on his part in failing to promptly report the receipt
of wages and other income for himself and his wife during
1990 since he had been advised that he should immediately
report any change in income to the VA.  However, based on the
prior discussion, including the veteran's educational level,
the Board does not believe that the fault on his part was
substantial.  The record also indicates that in a
September 1994 financial status report, the veteran indicated
that the only monthly income for himself and his spouse
consisted of $922 in Social Security benefits and he reported
monthly expenses of $932.  The monthly expenses included
payments to a medical center for dialysis for his wife.  The
veteran reported total assets of only some $3,500 which
consisted primarily of a 1983 automobile.  Accordingly, under
the circumstances, it appears that recovery of the
overpayment would seriously impair the veteran's ability to
meet his necessary family living expenses, including the
expenses of medical treatment for his wife.  In view of the
current financial situation of the veteran and his spouse, it
does not appear that waiver of recovery of the overpayment
would result in any unjust enrichment for him.

In view of the above discussion, the Board concludes that
recovery of the overpayment would be against the principle of
equity and good conscience.  38 U.S.C.A. � 5302; 38 C.F.R.
� 1.965.  Accordingly, it follows that favorable action in
connection with the veteran's appeal is in order.  In
arriving at its decision in this case, the Board has resolved
all doubt in favor of the veteran.  38 U.S.C.A. � 5107.

ORDER

Entitlement to waiver of recovery of an overpayment of
Section 306 disability pension benefits is established.  The
appeal is granted.

	WAYNE M. BRAEUER
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: J E DAY

disposition: denied

text:
Citation NR: 9625000
Decision Date: 09/05/96		Archive Date: 09/11/96
DOCKET NO.  94-14 230	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Washington,
D.C.

THE ISSUES

1.  Entitlement to service connection for pelvic inflammatory
disease (PID).

2.  Entitlement to an increased rating for left C6-7
radiculopathy, currently rated 20 percent disabling.

3.  Entitlement to an increased (compensable) rating for
fibrocystic disease of the breasts.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

R. T. Jones, Counsel

INTRODUCTION

The veteran served on active duty from December 1980 to April
1989.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from an October 1989 rating determination
of the Department of Veterans Affairs (VA) Regional Office
(RO) located in Washington, D.C.

The issue of to an increased rating for fibrocystic disease
of the breasts will be addressed in the body of this
decision, and the issues of entitlement to service connection
for PID and an increased rating for left C6-7 radiculopathy
will be addressed in the remand portion at the end of the
decision for reasons explained below.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends an increased rating is warranted for the
service-connected fibrocystic disease of the breasts because
she has lumps in her breasts and they are tender.

DECISION OF THE BOARD

The Board, in accordance with 38 U.S.C.A. � 7104 (West 1991 &
Supp. 1995), has reviewed and considered all of the evidence
and material of record in the veteran's claims file.  Based
on its review of the relevant evidence, and for the following
reasons and bases, it is the decision of the Board that the
evidence supports an increased rating of 10 percent for
fibrocystic disease of the left breast, but that a
preponderance of the evidence is against an increased
(compensable) rating for fibrocystic disease of the right
breast.

FINDINGS OF FACT

1.  The veteran's fibrocystic disease of the left breast is
manifested by tenderness and chronic pain not requiring
medication or current treatment.

2. The veteran's fibrocystic disease of the right breast is
not currently symptomatic nor productive of any functional
impairment.

CONCLUSIONS OF LAW

1.  The rating criteria for a 10 percent evaluation for
fibrocystic disease of the left breast have been met.  38
U.S.C.A. �� 1155, 5107(b) (West 1991); 38 C.F.R. �� 3.102,
4.7, 4.10, 4.20, 4.27, 4.118, Diagnostic Codes 7899-7804,
7819 (1995).

2.  The rating criteria for a compensable evaluation for
fibrocystic disease of the right breast have not been met.
38 U.S.C.A. � 1155 (West 1991); 38 C.F.R. �� 4.20, 4.27,
4.31, 4.118, Diagnostic Codes 7899-7804, 7819 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual background

Service connection for fibrocystic disease of the breasts
(rated zero percent) has been in effect since the veteran�s
separation from service.

A July 1989 VA examination showed bilateral fibrocystic
disease of the breasts with slight tenderness of the upper
outer quadrant of the left breast.  In November 1989 it was
noted there was some tenderness in upper outer quadrant of
the left breast, but no dominant mass was noted.

A December 1989 neurological evaluation by Neal Kurzrok noted
there was left breast tenderness of uncertain etiology.

On a VA gynecology clinic report, dated in March 1990, it was
indicated that the appellant had left breast pain, and the
breast was fibrotic and tender.

At a January 1991 hearing at the RO, the veteran stated she
currently had lumps in her breasts.

A February 1991 mammogram was interpreted as revealing that
the appellant had markedly dense breasts with diffuse
fibrotic changes and a solid appearing mass in the left
axilla view.  It was recommended that she return in three
months for a repeat mammogram to rule out the possibility of
an aggressive lesion.

At a VA breast clinic in February 1991, it was noted the
veteran had symmetrical nodularity of the breasts especially
in the upper outer quadrant, left greater than right.  It was
noted that there was tenderness of the upper outer quadrant
of the left breast.  There was minimal white discharge from
the left nipple.

At a VA breast clinic in June 1993, it was noted the veteran
had pain in the left breast on palpation especially in the
upper outer quadrant of the left breast, and multi-nodular
breasts, bilaterally.

Analysis

The veteran has submitted a well-grounded claim for
entitlement to an increased rating for bilateral fibrocystic
breast disease.  38 U.S.C.A. � 5107(a) (West 1991).  The
Board is satisfied that the evidence is sufficient to
equitably decide her appeal.

Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity.  Separate diagnostic codes identify the
various disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.
The percentage ratings provided under the VA rating schedule
represent the �average impairment in earning capacity
resulting from such diseases and injuries and their residual
conditions in civil occupations.�  38 C.F.R. � 4.1 (1995).
The higher of two evaluations will be assigned if the
disability more closely approximates the criteria for that
rating. Otherwise, the lower rating is assigned.  38 C.F.R. �
4.7. In addition, when service connection has been
established for a disorder not listed in the rating schedule,
the disorder will be rated under a closely related disease or
injury pertaining to the same part of the body and the same
bodily function and involving closely analogous
symptomatology.  38 C.F.R. � 4.20 (1995).

In this case, service connection is in effect for bilateral
fibrocystic breast disease, a disorder not specifically
listed in the rating schedule.  The evidence indicates that
the disease is characterized by multiple non-malignant
growths in her breasts. Thus, 38 C.F.R. � 4.116a, Diagnostic
Code 7627 (1995) for malignant new growths of the mammary
glands, would not be applicable.

However, benign new growths of the skin will be rated as
scars, disfigurement, etc.  38 C.F. R. � 4.118, Diagnostic
Code 7819 (1995).  Various ratings are provided for
disfiguring scars of the head, face, or neck.  38 C.F.R. �
4.118, Diagnostic Code 7800 (1995).  A 10 percent rating is
provided for superficial scars, poorly nourished, with
repeated ulceration.  38 C.F.R. � 4.118, Diagnostic Code 7803
(1995).  A 10 percent rating is provided for scars,
superficial, tender and painful on objective demonstration.
38 C.F.R. � 4.188, Diagnostic Code 7804 (1995). Other scars
will be rated on the limitation of the part affected. 38
C.F.R. � 4.118, Diagnostic Code 7805 (1995).  The Board
determines that these diagnostic codes should be the ones to
be considered in this case pursuant to 38 C.F.R. � 4.20.

The veteran experiences left breast pain which is apparently
associated with the service-connected fibrocystic disease of
the breasts.  It has been specifically noted on a number of
occasions that tenderness is ascribed only to the left side.
As noted previously, her service-connected disease is to be
rated by analogy to painful and tender scars under Diagnostic
Code 7804.  If she were to have painful and tender scars on
each breast, it would be appropriate for separate disability
ratings to be assigned for scars for each breast.  Where the
minimum schedular evaluation requires residuals and the
schedule does not provide a noncompensable evaluation, a zero
percent evaluation will be assigned when the required
residuals are not shown.  38 C.F.R. � 4.31.  The current
findings reflect that there is at least a relative equipoise
as to whether a separate compensable rating of 10 percent for
the fibrocystic disease of the left breast is warranted.
Accordingly, with resolution of reasonable doubt given to the
veteran, the appeal is allowed to this extent.  38 U.S.C.A.
� 5107(b); 38 C.F.R. � 3.102.  The 10 percent rating for the
left breast contemplates the veteran's reported level of
pain, and there are no findings that support a rating in
excess of 10 percent.

Tenderness has not been ascribed to the right breast, and no
functional impairment or other basis for a compensable rating
has been demonstrated.  Moreover, the veteran was not taking
any medications, and there is no evidence of hospitalization
or current treatment for the disorder, or that she has been
prohibited from working, or restricted in her ability to work
due to her service-connected right breast disorder.  The
Board recognizes that the functional limitation resulting
from a disability may be caused by anatomical damage or by
pain.  See Ferguson v. Derwinski, 1 Vet.App. 428, 430 (1991).
In this case findings for a compensable rating for the right
breast are not shown.  Accordingly, the preponderance of the
evidence is against entitlement to a compensable rating for
fibrocystic disease of the right breast and against
entitlement to a rating in excess of 10 percent for
fibrocystic disease of the left breast, leaving no reasonable
doubt to be resolved in the veteran's favor.

ORDER

Entitlement to a rating of 10 percent for fibrocystic disease
of the left breast is granted, subject to the laws and
regulations governing the payment of monetary benefits.

Entitlement to a compensable rating for fibrocystic disease
of the right breast is denied.

REMAND

The last compensation examination for the purpose of
determining extent of the service-connected left C6-7
radiculopathy was in February 1991.  At that time the
neurology examiner reported that he had not had a chance to
review the electromyography/nerve conduction velocity
(EMG/NCV) and MRI studies which had been previously
performed, and the VA orthopedic examiner reported that
EMG/NCV studies at a VA Medical Center (VAMC) in October 1989
showed left C6-7 radiculopathy.  The results of this reported
study are not contained in the claims folder.  In August
1993, a VA doctor made an assessment of questionable cervical
radiculopathy, and suggested possible EMG/NCV studies.  A new
examination with EMG/NCV studies would be helpful to assess
the nature and extent of the service-connected left C6-7
radiculopathy.

On several occasions during service, clinical records
indicated that the veteran had abdominal pain and
gynecological complaints, and on at least one such instance,
was diagnosed as probably experiencing PID.  The most current
VA examination shows chronic cervicitis among other findings.
No current opinion as to any relationship between  current
findings and symptoms and conditions noted in service has
been obtained,  This should be accomplished.

Based upon the foregoing, the case is REMANDED to the RO for
the following:

1.  The RO should contact the veteran and
request that she provide the names and
addresses of any health care providers
who have treated her for any
gynecological  and service-connected neck
disorder in the recent past and specify
the approximate dates of treatment, if
possible.  Then, after any necessary
authorization is obtained from the
veteran, the RO should obtain copies of
all treatment records for the veteran
from the identified health care
providers.   The RO should also request
all treatment records from the
Washington, D.C., VAMC from 1993 to the
present.

2.  The veteran should be scheduled for a
VA gynecologic examination in order to
determine the nature and extent of any
pelvic or gynecological disorder found.
The claims file should be made available
so that the examiner may review the
relevant recorded history.  The examiner
should comment on the nature of any
gynecologic or pelvic abnormality found
during active service and the
relationship to any current gynecological
or pelvic disorder.  The examiner should
specifically comment on whether it is as
likely as not that any current
gynecologic or pelvic abnormality started
during service or is the result of any of
the veteran�s medical problems during
service.

3.  The veteran should be afforded a VA
neurological examination to identify and
evaluate the current nature and extent of
any service-connected left C6-7
radiculopathy.  The claims folder should
be made available to the examiner for
review before the examination.  All
appropriate tests, including the
recommended EMG/NCV study, should be
performed (or the examiner should state
why such test is not indicated) and all
impairment should be reported in detail.
The examiner should specifically comment
upon whether any incomplete paralysis of
the radicular groups in the left arm is
productive of mild, moderate or severe
impairment.  The rationale for the
examiner's opinion should be expressed as
well.

If the foregoing decision is adverse to the veteran, she and
her representative should be furnished a supplemental
statement of the case.  After the veteran and her
representative have had a suitable opportunity to respond,
the case should be returned to the Board in accordance with
the applicable procedures regarding the processing of
appeals.

By this REMAND, the Board intimates no opinion, factual or
legal, regarding the decision warranted, pending completion
of the requested development.

	J. E. DAY
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans�
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans� Judicial Review Act, Pub.
L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans� Appeals.  Appellate rights do not
attach to those issues addressed in the remand portion of the
Board�s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1995).
- 2 -


judge_norm: L M BARNARD

text: Initially, the Board notes that there is some question as to the exact dates and character of the veteran’s Reserve service. Although the veteran claims that he served for over 20 years in the Reserves, the exact dates of his service are not contained within the claims folder. Furthermore, there is no indication as to what amount of that service was active duty for training and what was inactive duty. [is remanded]

text:
Citation NR: 9626000
Decision Date: 09/17/96		Archive Date: 09/26/96
DOCKET NO.  94-40 727	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for bilateral hearing
loss disability.

2.  Entitlement to service connection for tinnitus.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Julia M. Beach, Associate Counsel

INTRODUCTION

The veteran has active service from October 1948 to April
1950 and from March 1952 to June 1962.  He also served in the
Air Force Reserves from April 1950 to March 1952 and has
other unverified service in the reserves.

This matter came before the Board of Veterans� Appeals
(Board) on appeal from a January 1992 rating decision of the
St. Petersburg, Florida, Regional Office (RO) which denied
the veteran�s claims of entitlement to service connection for
bilateral hearing loss and tinnitus.  The veteran testified
before a hearing officer at the RO in January 1993.  He is
represented in his appeal by Disabled American Veterans.

REMAND

The veteran contends that he is entitled to service
connection for bilateral hearing loss and tinnitus.  He
asserts that he was continually exposed to acoustic trauma
during service and following service while in the Reserves as
he was a flight engineer and was not provided with ear
protection.  He asserts that he served for over 20 years in
the Reserves, in addition to his regular active duty service.
At his hearing, the veteran stated that his tinnitus appeared
five years earlier but believed that it was due to acoustic
trauma.

Initially, the Board notes that there is some question as to
the exact dates and character of the veteran�s Reserve
service.  Although the veteran claims that he served for over
20 years in the Reserves, the exact dates of his service are
not contained within the claims folder.  Furthermore, there
is no indication as to what amount of that service was active
duty for training and what was inactive duty.

Before we can proceed as to the matter of whether service
connection is appropriate, we must first ascertain the
veteran�s precise periods of service, and then determine if
those periods were active duty, active duty for training, or
inactive duty for training.  The evidence currently of record
is insufficient to ascertain or properly characterize the
precise periods of service.  Such is vital in any claim for
service connection.  However, it becomes even more important
when the claim is for a disorder subject to certain
provisions which are applicable contingent upon the precise
manner in which a period of service is characterized.
38 U.S.C.A. � 1112 (West 1991).

The record shows that the veteran currently has bilateral
hearing loss which meets the VA criteria for hearing loss.
He also currently has a diagnosis of tinnitus in both ears.
Additionally, at a periodic examination during service in
February 1956, the veteran�s left ear met the VA criteria for
hearing loss, based upon his hearing acuity at 4,000 Hertz.
At an examination following service, in December 1966, the
veteran�s right ear met the VA criteria for hearing loss,
based upon his hearing acuity at 3,000 Hertz.

The United States Court of Veterans� Appeals has held that
the veteran�s failure to exhibit audiological findings which
meet the requirements of 38 C.F.R. � 3.385 during active
military service is not a bar to the award of service
connection for impaired hearing.  Ledford v. Derwinski,
3 Vet.App. 87, 89 (1992).  Where the regulatory threshold
requirements for impaired hearing are not met until several
years after service separation, the record must establish
exposure to disease or injury during active military service
which would adversely affect the veteran�s auditory system
and post-service audiological findings which meet the
criteria set forth in 38 C.F.R. � 3.385 (1995).

Furthermore, the veteran provided a release form authorizing
release to VA of the records of a physician he was seeing for
his hearing loss.  There is no indication that the RO
attempted to obtain these records.

In view of the evidence of record regarding the veteran�s
bilateral hearing loss and lack of information regarding the
veteran�s precise dates of service, the Board concludes that
additional information is needed in order to provide a record
upon which a fair, equitable, and procedurally correct
decision on the veteran�s claim for service connection for
bilateral hearing loss can be made.  38 C.F.R. � 3.327
(1995).

To ensure that the VA has met its duty to assist the
appellant in developing the facts pertinent to the claim,
this case is REMANDED to the RO for the following action:

1.  With assistance from the appropriate
service branch, the RO should obtain the
veteran�s personnel records, pay records,
and summary of service, to determine the
precise dates of the veteran�s training
during his service in the Reserves.  The
RO should then characterize the periods
of the veteran�s service as either active
duty, active duty for training, or
inactive duty for training.

2.  The RO should contact Richard-Lech
Sznurkowski, M.D., Charlotte Medical
Plaza, Suite 103, 2595 Harbor Blvd., Port
Charlotte, Florida 33952, and request
that he provide copies of the veteran�s
treatment records.

3.  Upon completion of the above, the RO
should schedule the veteran for a VA
audiological examination to determine the
nature and extent of the veteran�s
bilateral hearing loss and tinnitus.  The
claims folder, to include the February
1956 and December 1966 examinations, as
well as all records obtained in
conjunction with this remand, must be
reviewed by the examiner prior to the
examination.  All indicated tests and
studies should be completed, and the
findings then reported in detail.  The
examiner is requested to determine
whether the veteran�s bilateral hearing
loss or tinnitus is due to acoustic
trauma.  A complete rationale should be
provided for any opinion expressed.

4.  The case should be reviewed by the RO
to ensure that the foregoing development
has been conducted and completed in full.
If the development is incomplete, to
include the requested medical opinion,
appropriate corrective action is to be
implemented.  The RO should then review
the issues on appeal.

If the issues on appeal remain denied, the veteran should be
furnished a supplemental statement of the case and afforded a
reasonable period of time within which to respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board.

The purpose of this REMAND is to obtain additional evidence
and afford due process of law to the veteran.  No inference
should be drawn herefrom regarding the final disposition of
this claim.

	L. M. BARNARD
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1995).
- 2 -


judge_norm: WILLIAM J REDDY

condition: respiratory

condition: eye

text:
Citation NR: 9627000
Decision Date: 09/24/96		Archive Date: 10/03/96
DOCKET NO.  95-08 940	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for a respiratory
disorder.

2.  Whether new and material evidence has been submitted to
reopen a claim for service connection for blindness of the
left eye.

REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

Howard A. Dean, Associate Counsel

INTRODUCTION

The veteran had active service from March 1965 to March 1968.
This appeal arises from a rating decision dated in November
1993, which denied the veteran�s claim for service connection
for a respiratory disorder.

The veteran�s representative, in the July 1996 informal
hearing presentation, indicated that he wanted to file a
notice of disagreement regarding the regional office�s (RO)
rating action, dated in October 1995, which denied the
veteran�s claim for a nonservice-connected disability
pension.  This is also referred to the RO for appropriate
action.  See 38 C.F.R. �� 19.26, 20.201, 20.300, 20.302
(1995).

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he currently has a respiratory
disorder and that this disorder was incurred during active
service.  He notes that his service medical records show a
period of hospitalization for �respiratory disease,� that he
currently has a respiratory disease, and that the Department
of Veterans Affairs (VA) had been treating him for emphysema
�for years.�

In addition, the veteran contends that he sustained an injury
to his eye in service.  He states that his left eye was cut
open in service causing nerve damage and resulted in loss of
vision.  Moreover, he states that the medical evidence of
record demonstrates an injury to his left eye in service.
Thus, he contends that service connection for blindness of
the left eye should be granted.

DECISION OF THE BOARD

The Board of Veterans� Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. � 7104 (West 1991 & Supp.
1995), has reviewed and considered all of the evidence and
material of record in the veteran's claims file.  Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the veteran has not met the initial burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that his claim for service
connection for a respiratory disorder is well grounded.  It
is also the decision of the Board that new and material
evidence has not been submitted to reopen the claim for
service connection for blindness of the left eye.

FINDINGS OF FACT

1.  No medical evidence has been received which shows a nexus
between any current respiratory disorder and a pertinent
disorder in service.

2.  The veteran�s claim of entitlement to service connection
for blindness in the left eye was denied by an October 1980
rating decision because the evidence of record did not show
that the veteran�s eye disability was related to the eye
injury he sustained in service; a notice of disagreement was
not filed.

3.  Additional evidence added to the record since the October
1980 rating decision does not go to the question of whether
the veteran�s blindness in the left eye or any current left
eye disorder is attributable to service.

CONCLUSIONS OF LAW

1.  The claim for service connection for a respiratory
disorder is not well grounded.  38 U.S.C.A. �� 1110, 5107(a)
(West 1991); 38 C.F.R. � 3.303 (1995).

2.  The October 1980 rating decision is final, and new and
material evidence has not been received to reopen the claim
for entitlement to service connection for blindness in the
left eye.  38 U.S.C.A. �� 5108, 7105 (West 1991 & Supp.
1995); 38 C.F.R. �� 3.104, 3.156(a) (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection for a Respiratory Disorder

On April 23, 1965, the veteran complained of a cough and
vomiting.  On physical examination his chest was clear.  An
April 28, 1965, service hospital record shows that the
veteran was hospitalized for five days.  The diagnosis was
�acute respiratory disease.�  In August 1967, the veteran was
seen for complaints associated with a diagnosed �common
cold.�  On physical examination, the veteran�s chest was
clear.

On a service separation examination dated in December 1967,
no pertinent complaints, abnormalities, or findings were
noted by the examiner or reported by the veteran.  A chest X-
ray was interpreted as normal.

An April 1975 U.S. Army Reserve Examination was negative for
pertinent complaints, findings, or abnormalities.  On
clinical evaluation , the veteran�s chest and lungs were
interpreted as normal.

In a personal statement dated in July 1994, the veteran noted
that his service medical records show a period of
hospitalization for �respiratory disease,� and that he
currently has a respiratory disease.  He claimed that the VA
had been treating him for emphysema �for years.�

VA outpatient treatment records (OPTRs) dated in January 1994
show that the veteran was seen in December 1993 for
pneumonia.  The veteran was treated for ten days with
antibiotics.  The examiner reported that a �lesion� was noted
on the veteran�s chest X-rays.  VA OPTRs dated in December
1994 show complaints of a burning, sore chest for three to
four days, with a greenish-yellow clear sputum on coughing.
The examiner noted that the veteran had a past history of a
chronic obstructive pulmonary disorder (COPD).  The
impression was acute tracheo-bronchitis.  VA OPTRs dated in
January 1995 show complaints of chest pain and burning, with
production of white and greenish phlegm on coughing.  The
impression was sinusitis, refractory.  VA OPTRs dated from
February 1995 show complaints of, among other things,
breathing trouble.

The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence of a
well-grounded claim.  A well-grounded claim is a plausible
claim that is meritorious on its own or capable of
substantiation.  An allegation of a disorder that is service
connected is not sufficient; the veteran must submit evidence
in support of a claim that would �justify a belief by a fair
and impartial individual that the claim is plausible.�  See
38 U.S.C.A. � 5107(a) (West 1991); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet.App.
609, 611 (1992).  The quality and quantity of the evidence
required to meet this statutory burden of necessity will
depend upon the issue presented by the claim.  Grottveit v.
Brown, 5 Vet.App. 91, 92-93 (1993).

In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence).  Caluza v. Brown, 7 Vet.App.
498 (1995).

Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim.  Lay assertions
of medical causation cannot constitute evidence to render a
claim well grounded; if no cognizable evidence is submitted
to support a claim, the claim cannot be well grounded.
Grottveit, 5 Vet.App. at 93.

Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty.  38 U.S.C.A. � 1110 (West
1991).  38 C.F.R. � 3.303 (1995).  Regulations also provide
that service connection may be granted for any disease
diagnosed after discharge when all of the evidence including
that pertinent to service, establishes that the disease was
incurred in service.
38 C.F.R. � 3.303(d) (1995).  Because the evidence does not
indicate, nor is it contended, that the veteran engaged in
combat with the enemy, the provisions of 38 U.S.C.A.
� 1154(b) (West 1991) are inapplicable.

The record contains medical evidence of a current respiratory
disorder, in terms of findings of a history of COPD and
pneumonia, and diagnoses of pleuritic pain and
trachiobronchitis, although it is unclear as to the exact
nature of any current respiratory disorder.  However, there
is no medical evidence of a nexus between any current
respiratory disability and a disease or injury in service.
Specifically, none of the medical evidence of record relates
in any way any current disorder to the respiratory disorder
the veteran experienced during service.  Moreover, although
he has reported treatment, the veteran has at no time
indicated that there are any medical records showing an
etiological relationship between any current manifestations
of a respiratory disorder and any pertinent disorder in
service.

In addition, the veteran contends that he currently has a
respiratory disorder and that it was incurred during active
service.  The Board notes that, while the veteran is
competent to testify concerning matters not requiring medical
expertise, statements regarding an etiological relationship
between any current respiratory disorder and a disorder shown
in service, without supporting medical evidence, do not
constitute competent medical evidence of current disability
to render his claim well grounded, because, as a layman, he
is not competent to proffer an opinion requiring medical
expertise.  King v. Brown, 5 Vet.App. 19, 21 (1993);
Espiritu v. Derwinski, 2 Vet.App. 492 (1992).

In light of the foregoing, the Board concludes that the
veteran's claim for service connection for a respiratory
disorder is not well grounded, and that the RO was not under
a duty to assist the veteran in developing facts pertinent to
his claim.
38 U.S.C.A. � 5107(a) (West 1991); Murphy, 1 Vet.App. 78.
Competent evidence has not been presented, nor has the
veteran indicated that any such evidence supporting his
assertions is available.  Beausoleil v. Brown, 8 Vet.App. 459
(1996); Robinette v. Brown, 8 Vet.App. 69 (1995).  Although
the RO did not specifically state that it denied the
veteran's claim on the basis that it was not well grounded,
the Board concludes that this error was harmless.  Robinette,
8 Vet.App. 69 (citing Grottveit, 5 Vet.App. at 93; Edenfield
v. Brown, 8 Vet.App. 384 (1995)).  Accordingly, the Board
denies the veteran's claims for service connection for a
respiratory disorder as not well grounded.  See Robinette, 8
Vet.App. 69.

II.  Whether There Is New and Material Evidence for the Claim
of Service Connection for Blindness in the Left Eye

Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of a preexisting
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. � 1110 (West 1991).  Service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.  38
C.F.R. � 3.303(d) (1995).

A notice of disagreement shall be filed within one year from
the date of mailing of the notification of the initial review
and determination; otherwise that determination becomes
final.  38 U.S.C.A. � 7105 (West 1991 & Supp. 1995);
38 C.F.R. � 3.104 (1995).  If new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the claim will be reopened and the former
disposition of the claim reviewed.  38 U.S.C.A. � 5108 (West
1991).

To reopen a claim, a claimant must submit new and material
evidence.  38 U.S.C.A. � 5107 (West 1991 & Supp. 1995).
�New� evidence is �evidence which is not ... merely
cumulative of other evidence on the record.�  Colvin v.
Derwinski, 1 Vet.App. 171, 174 (1991).  �Material� evidence
is evidence that �is relevant and probative of the issue at
hand.�  Id.  Further, to be new and material, evidence must,
when taken together with all the evidence of record, create a
reasonable possibility that the outcome would be changed.
Id; see Manio v. Derwinski, 1 Vet.App. 140 (1991).

New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially on the specific matter under consideration,
which is neither cumulative nor redundant and which is, by
itself or in combination with other evidence, so significant
that it must be considered in order to fairly decide the
merits of the claim.  38 C.F.R. � 3.156(a) (1995).

The evidence available at the time of the October 1980 rating
decision included his service medical records.  The service
medical records showed that in November 1967, while
intoxicated, the veteran struck his left eye and incurred a
one inch laceration of the upper eyelid.  The wound was
sutured and no other complaints or treatment was rendered
with regards to that injury during his active service.
Moreover, a physical examination conducted in April 1975
revealed no evidence of an eye disability or blindness.

In an October 1980 rating decision the RO denied the
veteran�s claim for service connection for blindness of the
left eye.  The RO found that the veteran�s eye injury in
service had resolved without residuals and his blindness of
the left eye was not related to the injury in service.

The veteran was notified of the decision in a letter dated in
October 1980, but he did not file an appeal.  Therefore, the
decision became final.  38 U.S.C.A. � 7105 (West 1991 & Supp.
1995); 38 C.F.R. � 3.104 (1995).

Evidence received after the October 1980 rating decision
includes an outpatient treatment record from a VA facility
dated in January 1994 and outpatient treatment records from a
VA facility dated between January 1995 and February 1995.

The outpatient treatment records are new, but not material.
The records note treatment for disabilities other than a left
eye disorder.  A treatment record dated in February 1995
noted that the veteran had complaints of watery eyes.
However, his watery eyes were not attributed to any
disability associated with blindness of the left eye.  Thus,
these records do not go to the question of whether the
veteran�s current left eye condition is related to his
inservice injury.  The veteran has reported that he has
received treatment in relation to his left eye blindness, but
there is no indication of any records showing a relationship
to the injury in service.

The Board finds that the additional evidence received since
the October 1980 rating decision, when considered in
conjunction with the evidence previously of record, is not
new and material.  The additional evidence does not go to the
question of whether the veteran�s blindness in the left eye
or any other disorder of the left eye is related to an
inservice injury.  Therefore, the claim is not be reopened.

ORDER

Entitlement to service connection for a respiratory disorder
is denied.

New and material evidence not having been presented to reopen
the claim for service connection for blindness of the left
eye, service connection remains denied.

	WILLIAM J. REDDY
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: M W GREENSTREET

condition: back

text:
Citation NR: 9629000
Decision Date: 10/11/96		Archive Date: 10/25/96
DOCKET NO.  92-53 765	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for scoliosis of the
thoracic spine.

2.  Entitlement to service connection for arthritis, to
include traumatic arthritis, of the cervical and thoracic
spine.

REPRESENTATION

Appellant represented by:	American Red Cross

WITNESSES AT HEARING ON APPEAL

Appellant and the appellant�s wife

ATTORNEY FOR THE BOARD

J. Fussell, Counsel

INTRODUCTION

The veteran had active service in the Army from August 1975
until August 1978; he had active duty for training in June
1979 and he had active service in the United States Marine
Corps from December 1979 until July 1989.

This matter came before the Board of Veterans' Appeals (the
Board) from a February 1990 rating decision of the Jackson,
Mississippi, Regional Office (RO) of the Department of
Veterans Affairs (VA).  The case was remanded by the Board in
November 1992 to obtain VA examinations.  An opinion was
obtained from an independent medical expert in November 1994
and the case was again remanded in February 1995.  At some
time after the case was remanded in February 1995, the case
was transferred to Houston, Texas, RO.

At the time that the case was remanded in February 1995 the
issues developed for appellate consideration included
entitlement to service connection for scoliosis of the
thoracic spine with chronic scapulothoracic pain and snapping
scapula syndrome.  However, following VA examinations in
September 1995, pursuant to the February 1995 remand, a
rating action of May 1996 granted service connection for
scapulothoracic syndrome, with limitation of motion and
snapping scapula.

CONTENTIONS

It is contended that the veteran initially sustained an
injury of and was treated for disability of his spine in 1984
or 1985 which caused bony and disc changes of the cervical
and thoracic segments and traumatic scoliosis.  He emphasizes
that his scoliosis is not developmental.

DECISION

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files.  Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against the claim for service connection for
scoliosis of the thoracic spine but is in favor of service
connection for arthritis and degenerative disk disease of the
cervical and thoracic segments of the spine.

FINDINGS OF FACT

1.  The veteran had active service in the Army from August
1975 until August 1978; he had active duty for training in
June 1979 and he had active service in the United States
Marine Corps from December 1979 until July 1989.

2.  The veteran�s scoliosis of the thoracic spine is
developmental in origin and underwent no increase in severity
during service.

3.  The veteran has residuals of an old vertebral compression
fracture of service origin and his traumatic arthritis and
degenerative disk disease of the cervical and thoracic
segments of the spine are of service origin.

CONCLUSIONS OF LAW

1.  The veteran has developmental scoliosis of the thoracic
spine which preexisted service and not was aggravated during
service.  38 U.S.C.A. �� 1111, 1113, 1137, 1153 (West 1991);
38 C.F.R. � 3.303(c), 3.306 (1995).

2.  Traumatic arthritis and degenerative disc disease of the
cervical and thoracic segments of the spine were incurred in
service.  38 U.S.C.A. � 5107(a), 1101, 1112, 1113, 1131, 1137
(West 1991); 38 C.F.R. � 3.303, 3.307, 3.309 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran's claims are plausible and thus "well grounded"
within the meaning of 38 U.S.C.A. � 5107(a) (West 1991),
which mandates a duty to assist the veteran in developing all
pertinent evidence.

At the January 1991 hearing it was indicated (at page 2) that
not all of the veteran�s service medical records were on
file.  The report of the examination for discharge from the
first period of service, in the Army, is not on file but the
service medical records of that period of service otherwise
appear complete.  Indeed, the veteran testified (at page 3)
that his first back injury did not occur until 1984, after
his service in the Army and active duty for training in June
1979.

However, during active duty for training in June 1979 the
veteran fell off a truck and landed on his back, incurring an
acute lumbosacral strain.  He returned to work of a light
nature.

In the July 1989 claim the veteran reported that his second
period of active service, in the Marine Corps, commenced in
December 1982 but information from the National Personnel
Records Center reflects that it commenced in December 1979.
However, there are no service medical records from December
1979 until a general medical examination in December 1982.
Here again, it is pertinent to note that the injuries
complained of were in 1984 or 1984, after the period when
service medical records are incomplete and would, therefore,
have no bearing.

The evidentiary record is sufficient both in scope and in
depth for a fair, impartial, and fully informed appellate
decision.

Service connection is to be granted for a disability
resulting from disease or injury incurred in or aggravated
by service.  38 U.S.C.A. �� 1110, 1131 (West 1991).  This
requires a finding that there is current disability which
has a definite relationship with an injury or disease or
some other manifestation of the disability during service.
Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) and Cuevas
v. Principi, 3 Vet.App. 542, 548 (1992).  However, it need
not be shown that the disability was present or diagnosed
during service but only that there is a nexus between the
current condition and military service, even if first
diagnosed after service, on the basis of all the evidence,
including pertinent service medical records.  This can be
shown by establishing that the disability resulted from
personal injury or disease incurred in the line of duty.  38
C.F.R. � 3.303(d); Godfrey v. Derwinski, 2 Vet.App. 352, 356
(1992).

Where, as here, the veteran had ninety (90) days or more of
peacetime service after December 31, 1946, and arthritis
manifests to a compensable degree within a year after
service, it is rebuttably presumed to be of service origin,
absent affirmative evidence to the contrary, even if there
is no evidence thereof during service.
38 U.S.C.A. �� 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R.
�� 3.307, 3.309 (1995).

Under 38 C.F.R. � 3.303(b) the evidence must demonstrate
that (1) disease or injury was chronic in service or within
the presumptive period, or (2) in the absence of such a
showing of chronicity, that there is continuity of
symptomatology after service.  Gee v. Derwinski, No. 91-494,
slip op. at 2 (U.S. Vet.App. Jun. 4, 1992) and Hayes v.
Derwinski, No. 90-743, slip op. at 3 (U.S. Vet. App. April
27, 1992).

Continuity of symptomatology does not require that the in-
service and post-service diagnoses use exactly the same
terminology.  Heuer v. Brown, 7 Vet.App. 379, 387 (1995)
(citing Jones v. Derwinski, 1 Vet.App. 210, 216 (1991)).
"Rather, the regulation requires continuity of symptomatology
in order to provide a linkage between the inservice and post-
service diagnosis."  Jones v. Derwinski, 1 Vet.App. 210, 216
(1991).

A chronic disease need not be diagnosed during the
presumptive period under 38 C.F.R. � 3.307(c) but, if not,
there must be shown by acceptable medical or lay evidence
the characteristic manifestations of the disease to the
required degree, followed without unreasonable time lapse by
definite diagnosis.  Caldwell v. Derwinski, 1 Vet.App. 466,
469 (1991).

An important factor in the factual question of
reasonableness in lapse of time from manifestation to
diagnosis under 38 C.F.R. � 3.307(c) is the difficulty in
diagnosing the disability and the strength of the evidence
establishing an identity between the disease manifestations
and the subsequent diagnosis.  A strong evidentiary link
tends to ensure the disease is not due to 'intercurrent
cause' as set forth in 38 C.F.R. � 3.303(b) (1994).  Cook v.
Brown, 4 Vet.App. 231, 238 (1993) and Bielby v. Brown, 7
Vet.App. 260, 266 (1994).

Background

The veteran testified that there are no pertinent service
medical records prior to at least 1984.  The service medical
records of the first period of service are negative as to the
veteran�s cervical and thoracic segments of the spine.
Similarly, service medical records from the second period of
service reflect that general medical examinations for
reenlistment in December 1982, January 1984, and January 1986
were negative.

The service medical records from the second period of service
reflect a question of osteoarthritis in the cervical spine in
October 1987.  The veteran was hospitalized in at the
University Hospital in Jackson, Mississippi, in December 1988
when an X-ray revealed degenerative joint disease of the 7th
cervical and 1st thoracic (C7 and T1) vertebrae.  The
diagnosis was degenerative joint disease of the neck.  In
February 1989, he had left scapular pain of questionable
etiology which in April 1989 was felt to possibly be due to
neurologic impairment from osteophytes of the 6th and 7th
cervical vertebrae (C6 and C7).

The examination for service discharge in May 1989 disclosed
functional scoliosis, convex to the right, at T6 and T7.  An
X-ray disclosed a slight compression deformity of a mid-
thoracic vertebra suggesting an old compression fracture, and
moderate thoracic scoliosis.  Electrodiagnostic testing in
June 1989 disclosed specific hypersensitivity to pain of the
suprascapular nerve, C5-6.  The assessment was chronic left
subscapular pain of uncertain cause with questionable nerve
entrapment from scoliosis.

A service clinical record, possibly dated in August 1989,
reflects that an X-ray disclosed exostotic calcification
anterior to the vertebral bodies of �C7-8.�  There was
cupping of T1, T2, and T3 and thoracic scoliosis focused at
T6 and T7, with convexity to the right.  There were
assessments of scoliosis and cervical exostosis with a
notation that these might possibly be causing nerve
entrapment.

VA orthopedic examination in November 1989 yielded a
diagnosis of scoliosis, by history but an X-ray at that time
confirmed the presence of scoliosis.  VA neurology
examination in that month found that his pain was presumably
due to some type of mechanical entrapment without significant
neurological deficits.

X-rays on VA orthopedic examination in March 1991 found mild
flattening at the C6-7 interspace and narrowing of the C7-T1
interspace.  There was mild right convex thoracic scoliosis
and a suggestion of an irregularity at the inferior end-plate
of the T9 vertebral body.  The assessments were cervical and
left rhomboid muscle strain.

X-rays on VA orthopedic examination in December 1992 found
straightening of the cervical spine which was probably due to
muscular spasm and mild right convex thoracic scoliosis but a
decrease in the vertebral height of T8 could not be excluded.
The examiner noted that consideration was to be given to
degenerative disc disease as causing pain which was referred
to the left trapezius and left medial scapular region.  It
was unlikely that any possible old compression fracture of a
mid-thoracic vertebra would have caused any significant
scoliosis.  However, it was noted that some degenerative disc
changes at C7 and T1 (found on X-ray in March 1991) could
correspond to the area which had reportedly been injured
during service and was one plausible explanation for the pain
in the left paracervical region with radiation into the
trapezius and medial scapular region.

VA neurology examination in January 1993 was essentially
normal but it was noted that the veteran�s pain was
presumably due to some type of mechanical problem and it was
specifically noted that prior X-rays had disclosed changes at
C7 and T1 which accounted for his present discomfort.

In view of the medical complexity, the case was referred to
an independent medical expert (IME) for an opinion as to the
etiology of the veteran's scoliosis and as to whether the
veteran had acquired pathology of the cervical and thoracic
spine, as well as the left shoulder, from trauma or
otherwise, which first manifested during service and, if they
existed, what was the correct diagnosis or diagnoses as to
each anatomical area.

In substance, the IME opinion in November 1994 indicated that
it was necessary to review the actual X-ray films conducted
during service, particularly the X-ray film which reportedly
disclosed a compression fracture of a thoracic vertebra, in
order to determine whether the veteran had acquired or
congenital versus idiopathic scoliosis or other types of
spinal deformity which might have preexisted service.  It was
noted that the 30-degree scoliosis in the mid-thoracic area,
if idiopathic in nature, was not usually a cause of pain, but
that the left scapulothoracic pain might be related to lower
cervical disc degeneration, as indicated in other examiners'
findings.  This could not be verified without actual X-ray
films, but it was known that lower cervical spondylosis and
disc changes could cause pain which was referred to the
shoulder.  Additionally, intermittent snapping syndrome, such
as the veteran's, was not usually related to cervical
spondylosis and was seldom related to mild scoliosis.  It was
recommended that the veteran be evaluated by an expert
familiar with scoliosis for an accurate opinion as to whether
the pathology was related to trauma or otherwise, noting that
it was feasible that any lower cervical disc disease, if it
existed, could cause pain to be referred from the neck to the
left trapezius and scapula.

In view of the past attempts of the RO to obtain additional
service medical records, it does not appear that any actual
X-ray films during service are available.  Thus, the case was
remanded in February 1995 for VA orthopedic and neurology
examinations, pursuant to recommendation of the IME.

VA orthopedic examination in September 1995 revealed an
excellent range of motion of the cervical spine in all
directions with pain on extension and lateral bending to the
right and to the left, but more on the left, as well as point
tenderness to palpation of C6 and 7, on the left but no
cervical paravertebral muscle spasm.  X-rays at that time
revealed a normal curvature of the cervical spine but there
was fusion of the anterior interbody ligament between C7 and
T1.  Between C6 and 7 there was considerable �tenderness
processes,� and especially the nuchal ligament and the
spinous processes.  There was severe degenerative disk
disease at C6 and 7 with bilateral foraminal narrowing of
more than 50 percent.  X-rays of the thoracic spine revealed
scoliosis with apex to the right of 18 degrees at T7 and some
other minor congenital deformities in the remainder of the
thoracic spine.  There did not appear to be any destruction
of the vertebrae, no serious bony injury but only a �simple
idiopathic scoliosis.

The diagnoses were degenerative disk disease, C6-7; left
radiculitis, C7, and mild thoracic spinal scoliosis.  The
examiner felt that the scoliosis was a �red herring� because
he felt that it was not causing the veteran�s symptoms but he
did have left scapulothoracic syndrome with popping and
rubbing of the scapula on the ribs.  These were two different
pathologies, caused by two different things.  It was felt
that the veteran had radiculitis of the C7 nerve root, which
was to be corroborated by an examining VA neurology
examination.  It was not felt that �the scoliosis was caused
by the Service� but was a �pre-existing condition and
actually can be thrown out as any kind of a base cause of his
troubles.�

On VA neurology examination in September 1995 the veteran
again had full range of motion of the cervical spine but had
tenderness in the left mid- to lower cervical paraspinal
region.  X-ray reports were not available to the examiner but
on review of the summary of these films there was apparently
evidence of severe narrowing in the cervical spine at C6-7
with bilateral foraminal narrowing at that level as well as
thoracic scoliosis without apparent vertebral destruction.
The impression was cervical degenerative disk disease at C6-
7, and rule out left cervical radiculopathy.  It was felt
that most of the veteran�s pain was related to his left
scapulothoracic syndrome but he did have symptoms suggestive
of left cervical radiculopathy but without objective evidence
of root involvement on neurologic examination.  Thus,
electrodiagnostic testing was to be conducted.

Electrodiagnostic testing in October 1995 found no evidence
of radiculopathy at C6-7 and no evidence of suprascapular
nerve entrapment or upper trunk pathology.

Analysis

With respect to the claim for service connection for
scoliosis of the thoracic spine, the veteran is not competent
to render an opinion as to the etiology or causation thereof.
That scoliosis of the thoracic spine, convex to the right,
exists is firmly established.

Generally, congenital defects, such as congenital scoliosis,
are not diseases for which service connection may be granted.
38 C.F.R. � 3.303(c) (1995).  Additionally, a veteran is
presumed to have been in sound condition at service entrance
except for defects noted on the entrance examination unless
clear and unmistakable evidence demonstrates otherwise and a
pre-existing disorder which undergoes an increase during
service will be presumed to have been aggravated unless the
increase is due to the natural progress of the disorder.
38 U.S.C.A. � 1111, 1153; 38 C.F.R. � 3.306.

The only definitive medical opinion as to the nature and
etiology of the thoracic scoliosis is the VA examination in
September 1995 when the examiner commented that X-rays of the
thoracic spine disclosed congenital deformities without
destruction of the vertebrae or serious bony injury and only
a �simple idiopathic scoliosis� as to which he stated �I do
not believe that the scoliosis was caused by the Service
[sic]; I believe this is a pre-existing condition and
actually can be thrown out as any kind of a base cause for
his troubles.�

There is no persuasive medical evidence to rebut the
foregoing medical conclusion.  Consequently, the Board must
find that the veteran�s thoracic scoliosis is idiopathic and
congenital in nature and therefore pre-existed service.
Under 38 C.F.R. � 3.303(c) congenital abnormalities are not
the proper subject of a grant of service connection.
Additionally, inasmuch as the recent VA orthopedic examiner
stated that the thoracic scoliosis could not be causing any
of the veteran�s symptoms, it could not have increased in
severity during service.

With respect to the claims for service connection for
arthritis of the cervical and thoracic segments of the spine,
there is ample evidence of pathology of these segments of the
spine both during and after service.

As reported above, an X-ray during private hospitalization in
December 1988, while the veteran was on active duty, found
degenerative joint disease of C7 and T1.  An X-ray at
discharge from the second period of service in May 1989 found
evidence suggestive of a compression fracture of a mid-
thoracic vertebra.  Thereafter, in August 1989 there was
exostotic calcification of C7-8 and cupping of T1, 2, and 3.

In this regard, VA orthopedic examination in December 1992
noted degenerative disk changes at C7 and T1 and VA
examination in September 1995 found fusion of the anterior
interbody ligament between C7 and T1, with severe
degenerative disk disease at C6 and 7.  These are the same
levels found to be affected during service.

Moreover, given the evidence of a compression fracture during
service of a mid-thoracic vertebra and degenerative joint
disease of the cervical and thoracic segments of the spine in
December 1988, it is the determination of the Board, with the
resolution of all doubt in favor of the veteran, that service
connection for arthritis and degenerative disk disease of the
cervical and thoracic segments of the spine is warranted.

ORDER

Service connection for thoracic scoliosis is denied.

Service connection for arthritis and degenerative disk
disease of the cervical and thoracic segments of the spine is
granted.

	M. W. GREENSTREET
	Acting Member, Board of Veterans' Appeals

The Board of Veterans� Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

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