judge_norm: RENÉE M PELLETIER

text:
Citation Nr: 0431000
Decision Date: 11/23/04    Archive Date: 11/29/04

DOCKET NO.  00-09 621A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a back disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Ambler T. Jackson, Law Clerk

INTRODUCTION

The veteran served on active duty from October 1984 to
October 1988.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a August 1998 rating decision from the
Department of Veterans' Affairs (VA) Regional Office (RO) in
New York, New York, which denied the veteran's claim for
entitlement to service connection for a back disability.

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

REMAND

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

In February 1998, VA received the veteran's claim for
entitlement to service connection for a back disability.  By
correspondence, dated in July 1999, the veteran indicated
that the complaints of back pain stemmed from an incident in
service where he jumped off a trailer and injured his right
knee.

During the pendency of the appeal, in February 2004, the RO
granted the veteran's claim for entitlement to service
connection for posttraumatic patellofemoral syndrome of the
right knee.  The United States Court of Appeals for Veterans
Claims has held that where a veteran's service-connected
disability causes an increase in, but is not the proximate
cause of, a nonservice connected disability, the veteran is
entitled to service connection for that incremental increase
in severity attributable to the service-connected disability.
See Allen v. Brown, 7 Vet.App. 439 (1995).

Because the veteran has essentially maintained that the
service connected right knee injury caused him to experience
back pain, the RO should develop the claim for entitlement to
service connection for a back disability, consistent with the
Allen case.

The Board notes that the medical evidence of record has not
established a definitive diagnosis of a back disability.
Since the medical evidence of record is not sufficient at the
present time to make an equitable decision on this claim,
further development for such an examination is warranted.  38
U.S.C.A. � 5103A(d); 38 C.F.R. � 3.159(c)(4) (2003).
Therefore, the RO should arrange for the veteran to undergo
VA examination to determine whether the veteran has a back
disability, and if so, the etiology of the disability.

In view of the foregoing, this case is remanded for the
following:

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

2.  The RO should contact the veteran and
request the names, addresses and
treatment dates pertaining to any claims
he has submitted for any back injuries
sustained, to include automobile injuries
and /or other claimed back injuries.  In
addition, the veteran is requested to
provide the names and addresses of all
medical care providers, VA and non-VA,
who treated him for the complaints of
back pain.  After securing the necessary
releases, the RO should obtain copies of
those records, to include all previous x-
ray reports, that are not already in the
claims file, and have them associated
with the claims file.  All attempts to
procure records should be documented in
the file.  If the RO cannot obtain
records identified by the veteran, a
notation to that effect should be
inserted in the file.  The veteran and
his representative are to be notified of
unsuccessful efforts in this regard.

3.  After associating all relevant
records received, as noted above, the RO
is to arrange for the veteran to undergo
VA examination to determine whether there
is a nexus between the complaints of low
back pain, claimed as secondary to the
service connected right knee injury.  The
veteran's entire claims file, to include
the service medical records, is to be
made available to the examining physician
for review in this case.  A notation to
the effect that this record review took
place should be included in the report of
the examiner.  All appropriate tests and
studies are to be performed and x-rays
taken.  All medical findings are to be
reported in detail.  Following
examination of the veteran and review of
the record, the physician is to offer a
medical opinion as to whether it is at
least as likely as not that the service
connected right knee injury caused or
aggravated the veteran's claimed back
disability.  A complete rationale for any
opinion rendered is to be included in the
report.

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

5.  The RO must review the claims file
and ensure that there has been full
compliance with all notification and
development action required by 38
U.S.C.A. �� 5102, 5103, and 5103A (West
2002) and 38 C.F.R. � 3.159 (2004), and
that all requested development has been
completed (to the extent possible) in
compliance with this REMAND.  If any
action is not undertaken, or is taken in
a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).

7.  Thereafter, the RO should
readjudicate this claim, to include
consideration of Allen as it pertains to
service connection for the veteran's
residuals of the 5th metatarsal fracture,
claimed as secondary to the service
connected otitis  media of the left ear.
If the benefits sought on appeal remain
denied, the veteran and his
representative should be provided a
supplemental statement of the case
(SSOC).  The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal.  An
appropriate period of time should be
allowed for response.

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

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.

See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, �
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. �� 5109B, 7112).

_________________________________________________
	REN�E M. PELLETIER
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2003).


series: legacy

judge_norm: G H SHUFELT

disposition: granted

condition: knee

condition: back

text:
Citation Nr: 0501000
Decision Date: 01/13/05    Archive Date: 01/19/05

DOCKET NO.  03-24 084	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri

THE ISSUES

1.	Entitlement to service connection for a left knee
disability, secondary to the right knee.

2.	Entitlement to service connection for a lower back
disability, secondary to the right knee.

3.	Entitlement to service connection for a skin disability.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of
the United States

ATTORNEY FOR THE BOARD

Raymond L. Liu, Associate Counsel

INTRODUCTION

The veteran, who is the appellant in this case, had active
military service from June 1967 to February 1971.

This appeal arises before the Board of Veterans' Appeals
(Board) from a June 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri, which denied the veteran's claim seeking
entitlement to service connection for a left knee disability
as secondary to the service-connected disability of the right
knee; entitlement to service connection for a low back
disability as secondary to the service-connected disability
of the right knee; and from a May 2002 rating decision, which
denied the veteran's claim of entitlement to service
connection for a skin disability, characterized as a skin
rash from exposure to herbicides.

The issue of entitlement to service connection for a skin
disability is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.

FINDINGS OF FACT

1.	All relevant evidence necessary for an equitable
resolution of the left knee and lower back disability issues
on appeal has been obtained.

2.	Service connection is presently in effect for the right
knee disability, characterized as a postoperative medial
meniscectomy, with a 10 percent evaluation.

3.	The veteran's disability of the left knee, chondromalacia
with arthritis, and his lower back disability, lumbar disk
disease with fusion and arthritis, were caused by the
veteran's transference of weight to the left knee and lower
back due to surgeries on the service-connected disability of
the right knee.

CONCLUSIONS OF LAW

1.	Service connection for the disability of the left knee as
secondary to the service-connected right knee, to include
chondromalacia and degenerative arthritis, is warranted.
38 U.S.C.A. �� 1110, 5103, 5103A (West 2002); 38 C.F.R. ��
3.303, 3.304, 3.310(a) (2004).

2.	Service connection for the lower back as secondary to the
service-connected right knee, to include herniated disk and
unstable lumbar spine fusion with osteoarthritis, is
warranted. 38 U.S.C.A. �� 1110, 5103, 5103A (West 2002);
38 C.F.R. �� 3.303, 3.304, 3.310(a) (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Compliance with the Veterans Claims Assistance Act of 2000
(VCAA)

On November 9, 2000, the VCAA was enacted. Pub. L. No. 106-
475, 114 Stat. 2096 (2000); see 38 U.S.C.A. �� 5103, 5103A
(West 2002). Among other things, the VCAA amended 38 U.S.C.A.
� 5103 to clarify VA's duty to notify claimants and their
representatives of any information that is necessary to
substantiate the claim for benefits.  The VCAA also created
38 U.S.C.A. � 5103A, which codifies VA's duty to assist, and
essentially states that VA will make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate a claim. Implementing regulations for the VCAA
were subsequently enacted, which were also made effective
November 9, 2000, for the most part. 66 Fed. Reg. 45,620
(Aug. 29, 2001) (codified at 38 C.F.R. �� 3.102, 3.159).  The
intended effect of the implementing regulations was to
establish clear guidelines consistent with the intent of
Congress regarding the timing and scope of assistance VA will
provide to claimants who file a claim for benefits. 66 Fed.
Reg. 45,620 (Aug. 29, 2001).  Both the VCAA and the
implementing regulations are applicable in the present case,
and will be collectively referred to as "the VCAA."

To comply with the aforementioned VCAA requirements, the RO
must satisfy the following four requirements.

First, the RO must inform the claimant of the information and
evidence not of record that is necessary to substantiate the
claim.  See 38 U.S.C.A. � 5103 and 38 CFR � 3.159(b)(1)
(2004). In an April 2002 letter, the RO informed the veteran
of the requirements necessary to prove his claims for service
connection of the left knee, lower back, and skin rash.
Specifically, the RO informed the veteran that to establish
entitlement for his secondary service connection claims, he
will need to obtain medical records and evidence to show his
current claimed conditions as well as a relationship between
the conditions and his service-connected disability. For the
skin rash claim, the RO informed the veteran that he will
need to provide medical treatment evidence showing the
earliest observed manifestation of the disability. He will
also need to provide a description of his exposure to Agent
Orange in Vietnam. The veteran was properly notified of the
RO's request for information, and although he provided
treatment evidence concerning his left knee and lower back
claims, he has not provided any medical treatment information
or evidence to support his skin rash claim.

Second, the RO must inform the claimant of the information
and evidence the VA will seek to provide. See 38 U.S.C.A. �
5103 and 38 CFR � 3.159(b)(1) (2004). In its April 2002
letter, the RO informed the veteran that the RO would obtain
medical records, employment records, and records kept by any
other federal government agency.

Third, the RO must inform the claimant of the information and
evidence the claimant is expected to provide. See 38 U.S.C.A.
� 5103 and 38 CFR � 3.159(b)(1) (2004). In the April 2002
letter, the RO informed the veteran to complete a VA Form 21-
4142 regarding any private treatment he had received, and to
provide information about any person, agency, or company who
has records that may help decide his claim.

Finally, the RO must request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim. See 38 U.S.C.A. � 5103 and 38 CFR � 3.159(b)(1)
(2004). The April 2002 letter instructed the veteran to send
the RO all of the evidence requested within a designated
period of time and to inform the RO of any additional
information or evidence that he wants the RO to try to obtain
for him.

In view of the development that has been undertaken for the
left knee and lower back claims, further development is not
needed to comply with the VCAA. The April 2002 letter
informed the veteran of the information and evidence needed
to substantiate these claims, and he has been made aware of
how VA would assist him in obtaining evidence and
information. He has not identified any additional, relevant
evidence that has not been requested or obtained. For the
aforementioned reasons, there is no reasonable possibility
that further assistance would aid in the substantiation of
the left knee and lower back claims. In short, the
requirements under the VCAA have been met. Accordingly, there
is no potential prejudice to the veteran for failure to
develop these particular claims.

Factual Background

The veteran reports that he initially injured his service-
connected right knee while doing a squat during basic
training. He improved to some degree until he injured it
again while playing in-service tag football in 1968. He was
subsequently treated and diagnosed with a torn cartilage in
the right knee. He received surgery to repair the knee and
underwent subsequent physical therapy. However, he claims
that the right knee continued to cause him pain due to
swelling, especially after physical activity. After service
in 1973, he underwent another surgery to repair the right
knee but it still continued to swell from overt physical
activity and caused him pain. In 1997, the veteran was
operated on again with a preoperative diagnosis of internal
derangement of the right knee with an MRI showing a medial
meniscal tear, an absent anterior cruciate ligament, and
diffuse degenerative arthritis. The knee continued to cause
him pain and he underwent another operation in 1998. Since
that time the right knee has continued to be painful. He has
limitation of motion. Walking, doing any physical activity
such as cutting the grass, and household chores cause his
right knee to be painful and it continues to swell.

In 1998, the veteran reportedly began to experience low back
pains, which began as a weak feeling in his back and then
pain in the back. He was diagnosed with disk herniation at
L4-5 or L5-S1. He underwent back surgery for a bulging disk.
In December 1999, he developed more back pain with lifting.
He underwent another back surgery, but the back pains
reportedly did not improve. A magnetic resonance imaging scan
later showed fusion, but the fusion did not take and a third
surgery was done to fuse the lower back. Since then, he has
had a sore back doing yard work and lifting. He reports
experiencing occasional pain radiating into his buttocks, but
he does not have pain going down his legs with coughing,
sneezing, bending, or stooping.

In August 1999, the veteran reportedly began to experience
left knee pain. He fell and tore the anterior cruciate
ligament of his left knee, and he had a surgical procedure
arthroscopically-aided with a patella chondroplasty of the
left knee. He currently has chondromalacia of the left knee
with degenerative arthritis. The left knee has been feeling
more comfortable but still continues to bother him when
walking or performing any physical activity.

The VA examiner's May 2003 opinion notes that the veteran
provided a report from Dr. G.B. dated August 2001 that states
the veteran's right knee injury in service caused him to
develop left knee arthritis and possible internal
derangement, due to the necessity of transferring his weight
to the left knee following his right knee surgery. In
conjunction, the veteran also developed low back pain, which
Dr. G.B. reportedly states was a result of his right knee
surgeries. The VA examiner indicates that Dr. G.B. states in
his report that the veteran's right and left knee problems
have contributed significantly to the development of the
chronic low back pains and that he feels these are therefore
service related disabilities. The VA examiner did not express
disagreement with Dr. G.B.'s assessment that the left knee
and back disabilities are service-connected disabilities.
Upon an examination of the veteran and a review of the claims
folder, the VA examiner expressed his personal opinion that
it is as likely as not that the veteran's current left knee
disability is secondary to his service-connected right knee
disability; and the low back disability is also as likely as
not to have been caused or at least aggravated by the right
knee disability.

Analysis

To establish service connection on a secondary basis, the
veteran must submit evidence of a current left knee and low
back disability, and a nexus opinion by a medical
professional that the claimed disabilities resulted from a
service-connected disability. See 38 C.F.R. � 3.310(a)
(2004).

Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

The veteran's service medical records is entirely silent for
complaints, symptoms, and diagnoses of a left knee or lower
back condition. However, he continues to complain of pain in
the left knee and lower back condition due to his claimed
altered gait to compensate for pain in the right knee.

In May 2003, the VA examiner expressed his personal medical
opinion that he believes it is as likely as not that the
veteran's current left knee disability and low back
disability are secondary to his service-connected right knee
disability, such that they were caused or at least aggravated
by the service-connected disability.

As is true with any piece of evidence, the credibility and
weight to be attached to medical opinions are within the
province of the Board as adjudicators. Guerrieri v. Brown, 4
Vet. App. 467, 470-71 (1993); see also Winsett v. West, 11
Vet. App. 420 (1998) (Court affirmed the Board's decision
which weighed two medical opinions, from an expert and a
treating physician); Owens v. Brown, 7 Vet. App. 429, 433
(1995) (Board favoring one medical opinion over another is
not error).

When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. � 5107(b)
(West 2002). When, after careful consideration of all
procurable and assembled data, a reasonable doubt arises
regarding service origin, such doubt will be resolved in
favor of the claimant. 38 C.F.R. � 3.102 (West 2002).
Therefore, as the veteran has demonstrated the presence of
his current left knee and lower back disability and has
provided a competent opinion that indicates a nexus between
the secondary disabilities and the service-connected right
knee, entitlement to service connection for the left knee and
lower back is warranted.

ORDER

1.	Entitlement to service connection for the left knee as
secondary to the service-connected right knee, to include
chondromalacia and degenerative arthritis, is granted.

2.	Entitlement to service connection for the lower back as
secondary to the service-connected right knee, to include
herniated disk and unstable lumbar spine fusion with
osteoarthritis, is granted.

REMAND

In order to establish service connection for the skin
disability, the evidence must show it resulted from disease
or injury incurred in or aggravated by active service.
38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. �� 3.303 (2004).
Even if the disease at issue is initially diagnosed after the
veteran's discharge from service, service connection may
still be granted for any disability first noted after
discharge, when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R.
� 3.303(d) (2004).

For certain disabilities, such as diseases associated with
exposure to certain herbicide agents, service connection may
be presumed when such disability is shown to have manifested
to a degree of 10 percent or more at any time after service,
except for certain diseases such as chloracne or other
acneform disease, which must be shown to have manifested to a
degree of 10 percent or more within one year of the veteran's
last exposure to the herbicide agent in service. 38 U.S.C.A.
� 1101, 1112 (West 2002); 38 C.F.R. �� 3.303(d), 3.307(a)(6),
3.309 (2004). Such a presumption is rebuttable by affirmative
evidence to the contrary. 38 U.S.C.A.
� 1113 (West 2002); 38 C.F.R. � 3.307(d) (2004).

The veteran contends that he is entitled to presumptive
service connection for a skin condition, characterized as due
to exposure to herbicides such as Agent Orange, during
service in the Republic of Vietnam. See 38 U.S.C. � 1116(f)
(West 2002);
38 C.F.R. � 3.309(e) (2004). In his Form 9 Appeal to the
Board, he indicates that he did not have any types of
problems with his skin until he went to Vietnam. Since then,
he claims to have problems with his skin.

As stated previously, where the determinative issue involves
medical causation or a medical diagnosis, there must be
competent medical evidence to the effect that the claim is
plausible; lay assertions of medical status do not constitute
competent medical evidence. 38 C.F.R. � 3.159(a) (2004);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

The VA's duty to assist requires that the veteran be afforded
a VA examination with respect to his disability, which should
take into account the records of the veteran's prior medical
history, and include an opinion as to the etiology of his
disability before a decision concerning his appeal can be
made. See Pond v. West, 12 Vet. App. 341, 346 (1999); Moore
v. Derwinski, 1 Vet. App. 401, 405 (1991). The veteran was
examined and treated at a Veterans Affairs Medical Center
(VAMC) in 2003, however, the examiner did not comment or
indicate whether he examined the veteran for his claimed skin
disability. Although the veteran has provided little
information about his skin disability and has not indicated
whether he has received treatment for it in the past, he does
maintain that it is a problem that continues to bother him.

Therefore, in light of the foregoing, further development of
the record is warranted prior to final appellate
consideration of the skin disability issue. Accordingly, the
case is remanded for the following actions:

1.	The RO must schedule the veteran for a
dermatological examination and opinion to determine
the existence, extent, and etiology of the
veteran's claimed skin disorder.

a.	The examiner must provide a diagnosis for
the claimed skins disability and the
findings supporting that diagnosis.
b.	The examiner must render an opinion as to
whether it is more likely than not (i.e.
probability greater than 50 percent), at
least as likely as not (i.e. probability of
50 percent), or less likely than not (i.e.,
probability less than 50 percent ) that the
skin disability is related to the veteran's
service and whether the skin disability was
caused by exposure to herbicides such as
Agent Orange.
c.	The examiner must also render an opinion as
to when the claimed skin disability first
manifested (before service, during service,
within 1 year of service, or more than a
year after service).
d.	All indicated tests and studies must be
performed, and any indicated consultations
must be scheduled. The claims folder,
including all associated material must be
made available to the examiner for review,
and the examiner must verify that the
claims folder and the associated material
has, in fact, been reviewed. The rationale
for all opinions must be set forth in
writing.

2.	When the above foregoing actions have been
completed, the RO should undertake any other
indicated development and then readjudicate the
issue of entitlement to service connection for a
skin disability, characterized as exposure to
herbicides. If the benefits sought on appeal are
not granted to the veteran's satisfaction, he and
his representative must be furnished a Supplemental
Statement of the Case and afforded an opportunity
to respond. Thereafter if otherwise in order, the
case should be returned to the Board for further
appellate action.

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

This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, �
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C. �� 5109B, 7112).

____________________________________________
	G.H. Shufelt
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: S L KENNEDY

text: Service connection for PTSD is granted.

text:
Citation Nr: 0502000
Decision Date: 01/27/05    Archive Date: 02/07/05

DOCKET NO.  03-26 453	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania

THE ISSUE

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant and his son

ATTORNEY FOR THE BOARD

Raymond F. Ferner, Counsel

INTRODUCTION

This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania, that denied the benefit sought on
appeal.  The veteran, who had active service from March 1969
to October 1970, appealed that decision to the BVA, and the
case was referred to the Board for appellate review.

FINDINGS OF FACT

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

2.  The veteran has PTSD that is causally or etiologically
related to combat service he performed while in Vietnam.

CONCLUSION OF LAW

PTSD was incurred during active service.  38 U.S.C.A.
�� 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
�� 3.102, 3.159, 3.303, 3.304 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board is required to address the
Veterans Claims Assistance Act of 2000 (VCAA) that became law
in November 2000.  The VCAA provides, among other things,
that the VA will make reasonable efforts to notify a claimant
of the relevant evidence necessary to substantiate a claim
for benefits under laws administered by the VA.  The VCAA
also requires the VA to assist a claimant in obtaining that
evidence.  38 U.S.C.A. �� 5103, 5103A (West 2002); 38 C.F.R.
� 3.159 (2003).

First, the VA has a duty under the VCAA to notify a claimant
and his representative of the information and evidence needed
to substantiate his claim.  Collectively, the May 2003 rating
decision and the Statement of the Case issued in connection
with the veteran's appeal have notified him of the evidence
considered, the pertinent laws and regulations and the
reasons his claim was denied.  In addition, a letter to the
veteran from the RO dated in February 2003, prior to the
initial unfavorable decision in this case, specifically
notified the veteran of the provisions of the VCAA, including
the types of evidence necessary to substantiate his claim and
whether or not he or the VA had the burden of producing or
obtaining that evidence or information.  Under these
circumstances, the Board finds that the notification
requirements of the VCAA have been satisfied.  Pelegrini v.
Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi,
16 Vet. App. 183 (2002).

Second, the VA has a duty to assist a claimant in obtaining
evidence necessary to substantiate a claim.  In this regard,
the Board notes that the veteran's service medical and
personnel records are associated with the claims file, as are
VA treatment records identified by the veteran.  Also, the
veteran has been afforded a VA examination in connection with
his current appeal and the veteran presented testimony in
support of his claim at a hearing before the VA at the RO.
The veteran and his representative have not indicated that
there is any other evidence that needs to be obtained in
order to fairly decide this appeal.  Therefore, the Board
finds that all relevant evidence has been obtained and that
the case is ready for appellate review

The veteran essentially contends that he has PTSD as a result
of his combat service in Vietnam.  Service connection will be
granted if it is shown that a veteran suffers from a
disability resulting from an 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, any active military, naval or air service.
38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  Service connection
for PTSD requires a medical diagnosis of the disorder;
credible supporting evidence that the claimed inservice
stressor actually occurred; and a link, as established by
medical evidence, between current symptomatology and the
claimed inservice stressor.  38 C.F.R. � 3.304(f).

The evidence necessary to establish the occurrence of a
stressor during service to support a diagnosis of PTSD will
vary depending upon whether the veteran engaged in "combat
with the enemy" as established by official records, including
recognized military combat citations, or other supportive
evidence.  If the VA determines that the veteran engaged in
combat with the enemy and the alleged stressor is combat-
related, then the veteran's lay testimony or statement is
accepted as conclusive evidence of the stressor's occurrence
and no further development or corroborative evidence is
required, provided that such testimony is found to be
"satisfactory," i.e., credible, and "consistent with the
circumstances, conditions or hardships of service."  See
38 U.S.C.A. � 1154(b); 38 C.F.R. � 3.304(f); Dizoglio v.
Brown, 9 Vet. App. 163, 164 (1996); West v. Brown,
7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91,
98 (1993).  If, however, the VA determines that the veteran
did not engage in combat with the enemy or that the veteran
engaged in combat with the enemy, but the alleged stressor is
not combat-related, the veteran's lay testimony, by itself,
is insufficient to establish the occurrence of the alleged
stressor.  Instead, the record must contain credible
supporting evidence that corroborates the veteran's
statements or testimony.  Cohen v. Brown, 10 Vet. App. 128,
142 (1993).

Service records reflect that the veteran engaged in combat
with the enemy.  In this regard, the veteran's DD Form 214
shows that he served in Vietnam from October 1969 to October
1970, and while that document does not reflect that the
veteran was awarded a Combat Infantryman Badge, an award
typically reflective of exposure or participation in combat
with the enemy, the veteran's DA Form 20 (Enlisted
Qualification Record) shows that the veteran did receive such
an award.  That award, coupled with the veteran's contention
that the alleged stressors are combat-related, demonstrates
that the veteran did engage in combat with the enemy and is
accepted as conclusive evidence of the stressor's occurrence
because it is consistent with the circumstances, conditions
or hardships of the veteran's service.

The remaining question is a medical question of whether the
veteran has been diagnosed as having PTSD, and if so, whether
that diagnosis is related to the veteran's combat service in
Vietnam.  On this point there is conflicting evidence.  On
the one hand, a VA examination performed in May 2003 failed
to diagnose the veteran as having PTSD.  Following that
examination the examiner stated that the veteran did not meet
the diagnostic criteria for the diagnosis of PTSD in terms of
a stressor that meets criterion A for the diagnosis, nor in
terms of the full symptom presentation.  The Board would note
at this point that the conclusion reached following the May
2003 examination is incorrect in terms of whether the veteran
was exposed to a stressful incident to support a diagnosis of
PTSD, given the veteran's contention that he participated in
combat while serving in Vietnam and was awarded a Combat
Infantryman Badge.

On the other hand, VA outpatient treatment records dated in
2002 and 2003 do contain a diagnosis of PTSD.  For example, a
record dated in December 2002 contains a diagnosis of PTSD.
Noteworthy is a report of a psychological evaluation
performed in April 2003 that included psychological testing.
Following that evaluation the examiner summarized that it was
difficult to make a definitive diagnostic judgment, but it
was the examiner's impression that the veteran was not
completely malingering PTSD symptoms.  The examiner felt the
veteran had some degree of PTSD symptoms and indicated that
at that point the pertinent diagnosis was rule-out PTSD.  The
Board would observe that a subsequently dated VA outpatient
treatment record dated in May 2003 diagnosed the veteran as
having PTSD, but a record dated in July 2003 again diagnosed
rule-out PTSD.

Based on this record, the Board finds that there is a
question as to whether the veteran has PTSD as a result of
his combat service in Vietnam.  While the examiner who
performed the May 2003 VA examination, and some mental health
care professionals who have provided treatment to the veteran
have concluded that the veteran does not have PTSD by virtue
of either not diagnosing the disorder or diagnosing rule-out
PTSD following evaluation, at least some of his treating
health care practitioners believe the veteran does have PTSD.
The Board notes that in a case involving a diagnosis of PTSD
the United States Court of Appeals for Veterans Claims stated
that,

[A] clear (that is, unequivocal) PTSD
diagnosis by a mental health professional
must be presumed (unless evidence shows
to the contrary) to have been made in
accordance with the applicable DSM
[Diagnostic and Statistical Manual of
Mental Disorders] criteria as to both the
adequacy of the symptomatology and the
sufficiency of the stressor.  Mental
Health professionals are experts and are
presumed to know the DSM requirements
applicable to their practice and to have
taken them into account in providing a
PTSD diagnosis.

Cohen v. Brown, 10 Vet. App. 128, 140 (1997).

In this case, the Board has no reason to accept the diagnosis
of the VA examiner over the VA treating professionals in
regard to whether the veteran has symptomatology reflective
of a diagnosis of PTSD.  In this regard, the diagnosis
rendered following the May 2003 VA examination was recorded
by a psychologist, as were the diagnoses recorded in the VA
outpatient treatment records.  Therefore, the Board finds
that the record creates a reasonable doubt as to whether the
veteran actually has PTSD as a result of his combat service
in Vietnam.  Resolving any reasonable doubt as to this
question in the veteran's favor, the Board concludes that
service connection for PTSD is warranted.

ORDER

Service connection for PTSD is granted.

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

 Department of Veterans Affairs


judge_norm: JAMES L MARCH

condition: eye

disposition: remanded

text:
Citation Nr: 0503000
Decision Date: 02/07/05    Archive Date: 02/15/05

DOCKET NO.  02-12 391	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah

THE ISSUES

1.  Entitlement to service connection for residuals of a head
injury.

2.  Whether new and material evidence has been received to
reopen a claim of service connection claim a left eye
disorder, including an intraocular lens implant with a
history of ectopic cataract and damage to the lens and
retina.

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

4.  Entitlement to service connection for blackouts.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of
the United States

ATTORNEY FOR THE BOARD

C. P. Shonk, Associate Counsel

INTRODUCTION

The veteran served on active duty from November 1990 to April
1991, with prior active service of six months and three days
indicated on his DD Form 214.

This matter comes to the Board of Veterans' Appeals (Board)
from September 2000 and February 2002 rating decisions of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Salt Lake City, Utah.

In April 1998, the RO denied thirty service connection
claims, including for degenerative arthritis of the cervical
spine, a left eye disorder, and major depression.  In May
2000, the veteran sought to file a notice of disagreement
(NOD) seeking an extension of time, and in June 2000 the RO
decided that the veteran was not entitled to an extension of
the time limit to challenge the April 1998 rating decision.
Also in June 2000, the veteran sought service connection and
applied to reopen a variety of claims.

In September 2000, the RO denied sixteen claims, and in a
December 2000 NOD, the veteran sought to appeal all of the
issues, including reopening a claim of service connection for
(1) left eye damage to lens and retina (requiring an
intraocular lens implant with history of ectopic cataract),
and (2) a head injury, as well as a claim of service
connection for PTSD.  A March 2001 statement reflected the
veteran wished to pursue adjudication of the left eye and
head injury issues.

Thereafter in August 2001, the veteran sought to reopen the
claim of service connection for a neck injury, and raised a
service connection claim for blackouts.  In February 2002,
the RO reopened claims for a head injury, degenerative
arthritis of the cervical spine, left eye damage to the lens
and retina, and PTSD, and continued to deny all on the
merits.  The determination noted that the issue of PTSD had
been raised during an informal hearing.  Also, the RO denied
service connection for blackouts.  In May 2002, the veteran
disagreed with each issue, and in August 2002, filed a VA
Form 9 concerning all of these matters.

In April 2003, the Board reopened claims of service
connection for residuals of a head injury (as reflected on
the title page of this decision), and degenerative arthritis
of the cervical spine.  Thereafter, the Board remanded these
issues, and the issue concerning blackouts, for VA
examination, as well as to notify the veteran of 38 U.S.C.A.
� 5103 and 38 C.F.R. � 3.159.  The Board also sought Social
Security Administration records.  Further, the Board
requested that the RO issue a statement of the case (SOC)
concerning entitlement to compensation under 38 U.S.C.A.
� 1151, and right C-7 radiculopathy (claimed as paralysis of
the right hand and damage to the muscles of the right arm).
It is noted that these specific actions were completed.

In July 2003, the RO granted service connection for
spondylosis and traumatic arthritis of the cervical spine
evaluated as 10 percent disabling, as well as for weakness
and paresthesias of the right upper extremity due to C7 root
lesion evaluated as 30 percent disabling.  Though the veteran
disagreed with the 10 percent disability evaluation for the
cervical spine, and the RO issued an SOC for that issue, the
veteran did not perfect an appeal.  Thus, that issue will not
be considered.

In the July 2003 SSOC, the RO dropped the issue of residuals
from a head injury, apparently conceiving that the grant of
service connection for the cervical spine addressed the
residuals claim.  According to the record, however, the
veteran is concerned with other head injury residuals and
this issue remains on appeal.

It is noted in the appellant's October 2004 post remand
brief, he raised the issue of major depression (previously
adjudicated in April 1998) as secondary to a head injury.
The RO should address this accordingly.

The issues of entitlement to service connection for residuals
of a head injury, blackouts, a left eye disorder, and PTSD
claim, are addressed in the REMAND portion of the decision
below and are REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  The veteran's claim of service connection for a left eye
disorder, including an intraocular lens implant with a
history of ectopic cataract and damage to the lens and
retina, was previously denied in an unappealed April 1998
decision.

2.  Evidence received since the April 1998 determination is
new and bears directly and substantially on the question of
whether a left eye disorder, including an intraocular lens
implant with a history of ectopic cataract and damage to the
lens and retina, was incurred in service.

CONCLUSION OF LAW

New and material evidence has been received to reopen a claim
of service connection for a left eye disorder, including an
intraocular lens implant with a history of ectopic cataract
and damage to the lens and retina.  38 U.S.C.A. �� 5103,
5108, 7104, 7105 (West 2002); 38 C.F.R. �� 3.156, 3.159
(2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Assessing VA's duties under the Veterans Claims Assistance
Act (VCAA), 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002), is not necessary as the service
connection claim for a left eye disorder is reopened.

Generally, an unappealed RO denial is final under 38 U.S.C.A.
� 7105(c), and the claim may only be reopened through the
receipt of "new and material" evidence.  If new and
material evidence is presented or secured with respect to a
claim that has been disallowed, VA must reopen the claim and
review its former disposition.  38 U.S.C.A. � 5108; see Hodge
v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).

By "new and material evidence" is meant that which was 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 claim.  Hodge, 155 F.3d at 1362.

Here, the RO denied the veteran's application to reopen the
claim of service connection for a left eye disorder because
of conflicting medical evidence in the record that any eye
disorder may have been attributable to other non-service
accidents and medical conditions other than the claimed in-
service head injury.  Particularly, there was no evidence of
an in-service incurrence of an eye disorder as a result of a
head injury.

Of record, however, is a July 2004 lay statement from a
fellow soldier detailing various symptoms the veteran
exhibited after a head injury.  Specifically, the statement
noted the veteran ordered at least five lenses for his gas
mask.  She seemed to think that had something to do with the
veteran's vision.

Presuming the credibility of this statement reflecting the
veteran's need for new lenses, the service connection claim
should be reopened for further assessment.

ORDER

New and material evidence has been received to reopen a
service connection claim for a left eye disorder, including
an intraocular lens implant with a history of ectopic
cataract and damage to the lens and retina, and to that
extent only the appeal is granted.

REMAND

In view of the VCAA, further evidentiary development is
necessary.

The April 2003 Board remand requested a VA examination to
determine the etiology of the veteran's claimed residuals of
a head injury, degenerative arthritis of the cervical spine,
and blackouts.  The examiner was to provide an opinion as to
whether it was at least as likely as not that the preceding
were related to service.

One VA examiner offered such an opinion for the cervical neck
issue, and as mentioned above, the RO granted that service
connection claim.  A June 2003 examination concerning the
residuals of a head injury and blackouts did not, however,
give an opinion that the Board may rely on to decide the
claim.  See Stegall v. West, 11 Vet. App. 268 (1998).

The examiner recounted the veteran's reported symptoms after
the head injury at Fort Carson, such as impaired memory, a
personality change, an inability to stand for long periods of
time due to pain, irritability, tension headaches, and
repeated lightheadedness during the day.  The veteran noted
that he had been diagnosed as having orthostatic hypotension.
The examiner concluded:  "It is hard to know whether the
patient's symptoms are etiologically related to the injury he
states he suffered while in service.  Certainly some patients
suffer from a post concussion syndrome after a concussion.
It would be unusual for this syndrome to last this long
however."

There is no indication that the examiner had access to the
claims file, which contains the veteran's medical history and
service medical records.  The claims file, for example,
contains July 2004 lay statements from fellow soldiers that
recount the veteran's head injury and how he behaved and felt
following the event, and this kind of information should be
made available to an examiner.  The Board needs a medical
opinion that reflects the legal standard set out in this
remand.  As such, the veteran should be afforded another VA
examination.  The assessment should also clarify the current
diagnosis of any left eye disorder, and determine whether it
is due to an in-service head injury, in light of the
veteran's documented medical history including service
medical records.

Moreover, the April 2003 Board remand asked that the veteran
be notified of VCAA provisions in 38 U.S.C.A. � 5103 and
38 C.F.R. � 3.159 in a SSOC.  Recent decisions by the United
States Court of Appeals for Veteran Claims' instruct that the
veteran should receive a content-complying VCAA notice
letter.  Accordingly, the RO must send substantive and
procedural information concerning applications to reopen and
service connection claims.

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

1.  The RO should notify the claimant
of the required information and
evidence to substantiate the claim to
reopen the application for service
connection for PTSD, and service
connection for residuals of a head
injury, blackouts, and a left eye
disorder, in compliance with the VCAA.
This notice should advise the appellant
of what evidence he is to provide and
what evidence VA will attempt to
obtain.

2.  The RO should schedule the veteran
for a VA examination.  The examiner
must have the claims file for review in
rendering any opinion.  The examiner
should do the following:
(a)	Clarify whether the veteran
has any residuals from a head
injury, and opine whether any
such residuals including
blackouts, in light of the
veteran's medical history, are
at least as likely as not
related to an in-service head
injury.
(b)	Clarify any diagnosis
concerning a left eye disorder
and opine whether it is at
least as likely as not any left
eye disorder is related to
service.

3.  Then, the RO should readjudicate
the veteran's application to reopen a
service connection for PTSD and service
connection claims for residuals of a
head injury, blackouts, and a left eye
disorder.  If the determination of
these claims remains unfavorable to the
veteran, the RO must issue a
supplemental statement of the case and
provide him a reasonable period of time
in which to respond before this case is
returned to the Board.

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

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, �
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C.A. �� 5109B, 7112).

______________________________________________
	JAMES L. MARCH
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: DEBORAH W SINGLETON

disposition: denied

text:
Citation Nr: 0504000
Decision Date: 02/15/05    Archive Date: 02/22/05

DOCKET NO.  03-12 727	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island

THE ISSUE

Entitlement to an initial disability rating in excess of 10
percent for status postoperative ganglion cystectomy, left
wrist (synovial) with minimal arthritic changes, to include
whether a separate disability rating is warranted for a left
wrist scar.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

J.W. Kim, Associate Counsel

INTRODUCTION

The veteran served on active duty from May to August 1980 and
from March 1981 to March 1984.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Providence, Rhode Island.  The RO granted service connection
for status postoperative ganglion cystectomy, left wrist
(synovial) with minimal arthritic changes, and assigned a 10
percent evaluation.  The veteran timely perfected an appeal
of this determination to the Board.

Additionally, as will be discussed below, the Board believes
that the issue of a separate disability rating for a left
wrist scar, as a status postoperative residual of the
ganglion cystectomy of the left wrist, may be reasonably
inferred from the evidence of record.  Thus, this matter will
be addressed within the context of this appeal.

FINDINGS OF FACT

1.  The veteran's status postoperative ganglion cystectomy,
left wrist (synovial) with minimal arthritic changes, is
manifested by swelling, pain, weakness of grip strength, and
slight limitation of motion of the wrist, but not ankylosis
of the wrist.

2.  The veteran's left wrist scar, as a status postoperative
residual of the ganglion cystectomy of the left wrist
(synovial), is manifested by a 3-cm, healed, superficial scar
with repeated ulceration; however, it is not deep or cause
limited motion and exceed 6 square inches, 144 square inches
or greater, unstable, or painful on exam.

CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 10
percent for status postoperative ganglion cystectomy, left
wrist (synovial) with minimal arthritic changes, have not
been met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R.
�� 4.71a, Diagnostic Codes 5003, 5020, 5215 (2004).

2.  Resolving all reasonable doubt in favor of the veteran,
the criteria for a separate disability rating of 10 percent,
but no more, for a left wrist scar, as a status postoperative
residual of the ganglion cystectomy of the left wrist
(synovial), have been met.  38 U.S.C.A. �� 1155, 5107 (West
2002); 38 C.F.R. � 4.118, Diagnostic Codes 7803, 7804, 7805
(effective prior to August 30, 2002); 38 C.F.R. � 4.118,
Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (effective
since August 30, 2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Board observes that the Veterans Claims Assistance Act of
2000 redefined VA's duty to assist a veteran in the
development of a claim.  Pub. L. No. 106-475, 114 Stat. 2096
(Nov. 9, 2000) [hereinafter VCAA].  This law and its
implementing regulations essentially eliminate the
requirement that a claimant submit evidence of a well-
grounded claim, and provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim.  38 U.S.C.A. �� 5103A, 5107(a)
(West 2002); 38 C.F.R. �� 3.102, 3.159(c)-(d) (2004).

The VCAA and its implementing regulations also include new
notification provisions.  Specifically, they require VA to
notify the claimant and the claimant's representative, if
any, of any information and medical or lay evidence, not
previously provided to the Secretary, that is necessary to
substantiate the claim.  As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
38 U.S.C.A. � 5103 (West 2002); 38 C.F.R. � 3.159(b) (2004).

In this case, the record reflects that VA has made reasonable
efforts to notify the veteran and his representative of the
information and medical and lay evidence necessary to
substantiate his claim.  VA provided the veteran with a copy
of the appealed July 2002 rating decision and February 2003
Statement of the Case.  These documents provided notice of
the law and governing regulations, as well as the reasons for
the determinations made regarding his claim.  Specifically,
the documents contained the pertinent provisions of VA's
Schedule for Rating Disabilities, including the diagnostic
codes and associated rating criteria.  See 38 C.F.R. Pt. 4
(2004).  By way of these documents, the veteran was also
specifically informed of the information and evidence
previously provided to VA or obtained by VA on his behalf.

In addition, the record reflects that VA has made reasonable
efforts to inform the veteran and his representative of the
evidence he was responsible for submitting and what evidence
VA would obtain on his behalf.  In an April 2002 letter, VA
informed the veteran that VA would assist in obtaining
relevant records and asked the veteran to identify sources of
any relevant records, including medical and employment
records, so that VA could request those records on his
behalf.  VA also asked the veteran to inform VA of any
additional information or evidence relevant to his claim.
Thus, the Board finds that the veteran was informed of the
evidence he was responsible for submitting and the evidence
VA would obtain on his behalf.  See Quartuccio v. Principi,
16 Vet. App. 183 (2002).  The Board also finds that the
veteran was informed that he could submit any records in his
possession relevant to his claim.  See Pelegrini v. Principi,
18 Vet. App. 112 (2004).

Furthermore, the record reflects that VA has made reasonable
efforts to obtain relevant records adequately identified by
the veteran.  Specifically, the information and evidence that
have been associated with the claims file consist of the
veteran's service medical records, post-service non-VA
medical records, a VA exam report, and statements made by the
veteran in support of his claim.

All the VCAA requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims.  Once
this has been accomplished, all due process concerns have
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. � 20.1102 (2004) (describing harmless error).  Because
each of the four content requirements of a VCAA notice has
been fully satisfied, any error in not providing a single
notice to the veteran covering all content requirements prior
to the initial unfavorable rating decision is harmless error.
Under the circumstances in this case, the Board finds that
the veteran has received the notice and assistance
contemplated by law and adjudication of his claim poses no
risk of prejudice to the veteran.  See Bernard v. Brown,
supra.

Factual Background

The record reveals numerous private medical reports, all
dated in August 1999.

An initial visit note shows complaints of a cyst on the left
wrist and that the veteran does not like it.

A consultation form reflects a 2- to 3-cm, firm, nontender,
non-inflamed nodule on the left anterior wrist with a
diagnosis of ganglion.  The veteran had a history of a
previously excised lesion 10 to 12 years ago.  Current
complaints included some numbness in the fingers.

A report of history and physical reflects that the veteran
has a mass over the dorsum of his left wrist that has been
present for several months and has caused some discomfort,
especially when using his hand for heavy lifting at work.
The veteran stated that he had a cyst removed in this area
while in service and that the lesion seems similar.  The
veteran denied any numbness of the hand.

Physical exam showed a soft, subcutaneous mass over the
dorsum of the wrist underlying a well-healed transverse scar.
There was no sensory or vascular deficit distal to the wrist.
Extensor function of all fingers, including the thumb, was
intact.  Radial and ulnar pulses were normal.  The mass was
nontender.  There was no instability at the scapholunate
joint with a negative Watson test.  The diagnosis was
recurrent left wrist arthrosynovial cyst.  In view of the
discomfort, which is most likely related to the cyst, the
physician recommended excision.

A report of operation reflects a recurrent mass over the
dorsum of the left wrist, the veteran's decision to proceed
with the excision, and that the recurrence rate is about 5
percent.  The report notes that the previous scar was
partially excised to the level of the subcutaneous tissue,
there was significant scarring over the radial aspect of the
wrist, and that the cyst was completely excised after
entering the joint capsule to the level of the scapholunate
ligament.  The report concludes that the veteran tolerated
the procedure well and was transferred to the recovery room
in stable and satisfactory condition.

The record also contains a June 2002 VA exam report.  The
examiner notes that the veteran developed a swelling on the
dorsum of the left wrist while on active duty and was treated
for a ganglion cyst.  The cyst was excised and some erosion
of the lunate was noted.  In August 1999, the veteran had a
recurrence of the ganglion, and it was surgically removed.
The veteran complained of swelling, pain, and numbness of the
left wrist, and that his hand shakes with heavy activity.

Physical exam showed a 3-cm healed surgical scar on the
dorsum of the left wrist running transversely over the joint
line.  There was some weakness of the grip of the left hand
with about 50 percent of the strength as compared to the
right.  The intrinsics were functional but the veteran stated
that he feels some pulling at the wrist when he attempts to
do the pinch.  The veteran could extend both wrists to 87
degrees and flex both wrists to 65 degrees.  Ulnar deviation
was 48 degrees on the right and 30 degrees on the left.
Radial deviation was 30 degrees on the right and 18 degrees
on the left.  Sensation was within normal limits in
corresponding areas of both hands.

The diagnoses were ganglion cysts of the left wrist
(synovial) and minimal arthritic changes of the left wrist by
operative report of erosion of the lunate.  The examiner
states that the veteran had a recurrence of a ganglion of the
left wrist and now has some stiffness of the wrist.  The
examiner adds that the recurrence of the ganglion after the
original excision is suggestive of some tendency of the joint
capsules to produce ganglia but that it has been about 3
years since the last recurrence.  The examiner concludes that
the veteran has some minor restriction of movement and radial
and ulnar deviation of the left wrist.

Analysis

Disability evaluations are determined by applying the
criteria set forth in the VA Schedule for Rating Disabilities
(Rating Schedule), which is based on average impairment in
earning capacity.  See 38 U.S.C.A. � 1155 (West 2002); 38
C.F.R. � 4.1 (2004).  When a question arises as to which of
two ratings apply under a particular diagnostic code, the
higher evaluation is assigned if the disability more closely
approximates the criteria for the higher rating; otherwise,
the lower rating is assigned.  38 C.F.R. � 4.7 (2004).  Where
the Rating Schedule does not provide for a noncompensable
evaluation for a particular disability, such an evaluation
will be assigned when the requirements for a compensable
evaluation are not met.  38 C.F.R. � 4.31 (2004).  The
veteran's entire history is reviewed when making disability
evaluations.   See 38 C.F.R. � 4.1; Schafrath v. Derwinski, 1
Vet. App. 589, 592 (1995).  After careful consideration of
the evidence, any reasonable doubt remaining is resolved in
favor of the veteran.  38 C.F.R. � 4.3 (2004).

The Board notes that this is an initial rating case, and
consideration will be given to "staged ratings" since
service connection was made effective (i.e., different
percentage ratings for different periods of time).  Fenderson
v. West, 12 Vet. App. 119 (1999).

Status Postoperative Ganglion Cystectomy, Left Wrist
(Synovial)
with Minimal Arthritic Changes

The veteran's status postoperative ganglion cystectomy, left
wrist (synovial) with minimal arthritic changes, is currently
evaluated as 10 percent disabling under Diagnostic Code 5099-
5020.  The Board notes that the veteran's disability has been
evaluated under this diagnostic code by analogy.  38 C.F.R. �
4.20 (2004).

Pursuant to Diagnostic Code 5020 for synovitis, the
disability will be rated on limitation of motion of affected
parts, as degenerative arthritis.

Under Diagnostic Code 5003, degenerative arthritis
established by X-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved.  When, however,
the limitation of motion of the specific joint or joints
involved is noncompensable under the appropriate diagnostic
codes, a rating of 10 percent is for application for each
such major joint or group of minor joints affected by
limitation of motion, to be combined, not added under
diagnostic code 5003.  Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion.

Pursuant to Diagnostic Code 5215, under which limitation of
motion of the wrist is evaluated, dorsiflexion less than 15
degrees warrants a 10 percent evaluation for either major or
minor wrist; and palmar flexion limited in line with forearm
warrants a 10 percent evaluation for either major or minor
wrist.

Normal range of motion for the wrist is defined as follows:
dorsiflexion (extension) to 70 degrees; palmar flexion to 80
degrees; ulnar deviation to 45 degrees; and radial deviation
to 20 degrees.  38 C.F.R. � 4.71, Plate I (2004).

In addition, when evaluating joint disabilities rated on the
basis of limitation of motion, VA may consider granting a
higher rating in cases in which functional loss due to pain,
weakness, excess fatigability, or incoordination is
demonstrated, and those factors are not contemplated in the
relevant rating criteria.  See 38 C.F.R. �� 4.40, 4.45, 4.59
(2004); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

The veteran is currently assigned the maximum 10 percent
schedular evaluation for left wrist limitation of motion
under Diagnostic Code 5215.  Because there is no evidence of
ankylosis of the wrist, Diagnostic Code 5214 is not for
application.  In this regard, the veteran's radial and ulnar
deviation of the wrist do not provide for a higher rating.
See Diagnostic Code 5214.  Also, because the veteran is
already receiving the maximum rating available for limitation
of motion, the provisions of 38 C.F.R. �� 4.40 and 4.45 do
not allow for a higher evaluation.  See Johnston v. Brown, 10
Vet. App. 80, 85 (1997).

The Board has considered other potentially applicable
diagnostic codes that provide for assignment of higher
evaluations for the veteran's status postoperative ganglion
cystectomy, left wrist (synovial) with minimal arthritic
changes.  However, the Board finds that no other diagnostic
code provides for a higher rating.  In this regard, the Board
observes that the record shows no sensory or vascular deficit
distal to the wrist; intact extensor function of all fingers,
including the thumb; normal radial and ulnar pulses; and no
instability at the scapholunate joint.

Furthermore, the Board has considered whether the veteran's
status postoperative ganglion cystectomy, left wrist
(synovial) with minimal arthritic changes, presents an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards such that referral to the appropriate officials for
consideration of extra-schedular ratings is warranted.  See
38 C.F.R. � 3.321(b)(1) (2004); Bagwell v. Brown, 9 Vet. App.
337, 338-39 (1996).  In this regard, the Board notes that the
veteran's disability has not been shown objectively to
interfere markedly with employment (i.e., beyond that
contemplated in the assigned ratings), to warrant frequent
periods of hospitalization, or to otherwise render
impractical the application of the regular schedular
standards.  Therefore, the Board finds that the criteria for
submission for consideration of extra-schedular ratings
pursuant to 38 C.F.R. � 3.321(b)(1) are not met.
Accordingly, 38 C.F.R. � 3.321(b)(1) does not provide an
additional basis for a disability rating in excess of 10
percent for status postoperative ganglion cystectomy, left
wrist (synovial) with minimal arthritic changes.

The Board notes that there appears to be no identifiable
period of time since the effective date of service connection
during which the veteran's status postoperative ganglion
cystectomy, left wrist (synovial) with minimal arthritic
changes, was more than 10 percent disabling.  Thus "staged
ratings" are inapplicable to this case.

Separate Rating for Left Wrist Scar, as a Status
Postoperative Residuals of the Ganglion Cystectomy of the
Left Wrist

As indicated above, the Board finds that the evidence of
record reasonably infers that there is also a claim for a
separate disability rating for a residual left wrist scar in
light of Estaban v. Brown, 6 Vet. App. 259 (1994).  See
Robinette v. Brown, 8 Vet. App. 69 (1995); Akles v.
Derwinski, 1 Vet. App. 118 (1991).  VA is obligated to
consider all issues reasonably inferred by the evidence of
record.  See Douglas v. Brown, 2 Vet. App. 435 (1992).

In this case, the Board finds that the veteran is entitled to
a separate rating for a residual scar, status postoperative
ganglion cystectomy, left wrist (synovial) with minimal
arthritic changes.  As for the evaluation to be assigned, the
Board observes that, effective August 30, 2002, regulations
regarding the evaluation of skin disease were revised.  See
67 Fed. Reg. 49,590-99 (2002).  Where the law or regulation
changes after a claim has been filed or reopened, but before
the administrative or judicial appeal process has been
concluded, the version most favorable to the veteran will
apply unless Congress provided otherwise or permitted the
Secretary to do otherwise and the Secretary did so.  Karnas
v. Derwinski, 1 Vet. App. 308, 313 (1991).  As the veteran
filed his claim in June 2002, the Board will consider the
regulations in effect both prior to and since August 30,
2002.

After a careful review of the record, the Board finds that
the veteran's residual left wrist scar warrants at most a 10
percent evaluation under Diagnostic Code 7803 in effect prior
to August 30, 2002.  In this regard, the Board finds that the
regulations in effect prior to August 30, 2002, are more
favorable to the veteran.

With respect to the regulations in effect prior to August 30,
2002, the Board notes that the June 2002 VA exam found a
healed surgical scar on the dorsum of the left wrist.  Given
the recurrence of the veteran's ganglion cyst, and resolving
all reasonable doubt in favor of the veteran, the Board finds
that the veteran's residual left wrist scar is analogous to a
superficial scar with repeated ulceration under Diagnostic
Code 7803, warranting a 10 percent evaluation.  Estaban v.
Brown, supra.  The Board notes that this is the maximum
rating allowed under this diagnostic code.

The Board notes that Diagnostic Code 7805 evaluates scars on
limitation of function of part affected and points out that
the veteran's disability is already rated on limitation of
motion of the wrist.  Thus, application of Diagnostic Code
7805 would violate the rule against pyramiding.  See
38 C.F.R. � 4.14 (2004).

The Board has also considered other potentially applicable
diagnostic codes that provide for assignment of higher
evaluations for the veteran's residual left wrist scar under
the regulations in effect prior to August 30, 2002.  However,
because the evidence does not show that the veteran has
disfiguring scars of the head, face or neck, or third degree
burn scars, a rating greater 10 percent is not warranted
under Diagnostic Code 7800 or 7801 (effective prior to August
30, 2002).

With respect to the regulations in effect since August 30,
2002, the Board points out that the veteran currently has a
healed 3-cm scar.  Moreover, the August 1999 report of
history and physical shows that the site of the previous
excision scar was well healed and nontender.  In this regard,
the Board observes that the record does not show that the
veteran's current residual scar is deep or causes limited
motion and exceeds 6 square inches, 144 square inches or
greater, unstable, or painful on exam.  Thus, the veteran is
not entitled to a compensable rating under Diagnostic Codes
7801, 7802, 7803, or 7804 (effective since August 30, 2002).
The Board also notes that, because the veteran does not have
disfigurement of the head, face or neck, a compensable rating
is not warranted under Diagnostic Code 7800 (effective since
August 30, 2002).

The Board again notes that application of Diagnostic Code
7805, which evaluates scars on limitation of function of
affected part, would violate the rule against pyramiding.
See 38 C.F.R. � 4.14.

The Board has also considered other potentially applicable
diagnostic codes that provide for assignment of higher
evaluations for the veteran's residual left wrist scar under
the regulations in effect since August 30, 2002.  However,
the Board finds that no other diagnostic code provides for a
higher rating.

In sum, the Board finds that the veteran is entitled to a
separate rating for his residual left wrist scar, and that he
is entitled to no more than a 10 percent evaluation under
Diagnostic Code 7803 (effective prior to August 30, 2002).

The Board finds that the veteran is not prejudiced by the
Board's review of the issue of a separate rating for a
residual scar, status postoperative ganglion cystectomy, left
wrist (synovial) with minimal arthritic changes, in the first
instance as the outcome of this review is favorable to the
veteran.  See Bernhard v. Brown, supra.

Furthermore, the Board has considered whether the veteran's
residual left wrist scar presents an exceptional or unusual
disability picture as to render impractical the application
of the regular schedular standards such that referral to the
appropriate officials for consideration of extra-schedular
ratings is warranted.  See 38 C.F.R. � 3.321(b)(1); Bagwell
v. Brown, supra.  In this regard, the Board notes that the
veteran's disability has not been shown objectively to
interfere markedly with employment (i.e., beyond that
contemplated in the assigned ratings), to warrant frequent
periods of hospitalization, or to otherwise render
impractical the application of the regular schedular
standards.  Therefore, the Board finds that the criteria for
submission for consideration of extra-schedular ratings
pursuant to 38 C.F.R. � 3.321(b)(1) are not met.
Accordingly, 38 C.F.R. � 3.321(b)(1) does not provide an
additional basis for a disability rating in excess of 10
percent for a residual scar, status postoperative ganglion
cystectomy, left wrist (synovial) with minimal arthritic
changes.

The Board notes that there appears to be no identifiable
period of time since the effective date of service connection
during which the veteran's residual left wrist scar was more
than 10 percent disabling.  Thus "staged ratings" are
inapplicable to this case.

ORDER

An initial disability rating in excess of 10 percent for
status postoperative ganglion cystectomy, left wrist
(synovial) with minimal arthritic changes, is denied.

Subject to the provisions governing the award of monetary
benefits, a separate 10 percent disability rating for a left
wrist scar, as a status postoperative residual of the
ganglion cystectomy of the left wrist (synovial), is granted.

____________________________________________
	DEBORAH W. SINGLETON
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: CHERYL L MASON

text:
Citation Nr: 0505000
Decision Date: 02/23/05    Archive Date: 03/04/05

DOCKET NO.  03-21 947	)	DATE
	)
	)

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

THE ISSUE

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

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

S. Barial, Associate Counsel

INTRODUCTION

The veteran had active military service from November 1970 to
August 1972; March 1990 to July 1990; and December 1990 to
September 1991.

This matter comes to the Board of Veterans' Appeals (Board)
from a February 2003 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Waco, Texas,
which denied service connection for PTSD.

In the January 2004 VA PTSD examination, the examiner
indicated that the veteran had some adjustment problems after
returning from military service and diagnosed an anxiety
disorder.  The Board finds that this is an informal claim for
service connection for anxiety disorder and refers this issue
to the RO.

The RO in a June 2004 rating decision denied the veteran's
service connection claims for depression with insomnia and
mood swings, allergic rhinitis (claimed as respiratory
problems), rash/skin condition, and joint and muscle pains.
The RO notified the veteran that he had one year from the
date of notice of the denial to appeal this decision until
June 2005.

FINDING OF FACT

The competent and most probative medical evidence of record
does not show a diagnosis of PTSD.

CONCLUSION OF LAW

PTSD was not incurred in active service.  38 U.S.C.A. ��
1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. ��
3.102, 3.159, 3.303, 3.304, 4.125 (2004).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002);
38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2004)
redefined the obligations of VA with respect to the duty to
assist, and imposed on VA certain notification requirements.
The final regulations implementing the VCAA were published on
August 29, 2001, and they apply to most claims for benefits
received by VA on or after November 9, 2000, as well as any
claim not decided as of that date.  38 C.F.R. � 3.159 (2004).

The United States Court of Appeals for Veteran Claims (CAVC)
in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in
part, that a VCAA notice, as required by 38 U.S.C. � 5103(a),
must be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim for
VA benefits and that the VCAA notice consistent with 38
U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b) must:  (1) inform
the claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim, or
something to the effect that the claimant should provide any
evidence in his possession pertaining to the claim.

I.  Duty to Notify

In this case, the agency of original jurisdiction notified
the veteran of the information and evidence necessary to
substantiate the claim and the respective responsibilities of
each party for obtaining and submitting evidence.  This was
accomplished by way of May 2002 and August 2002 VA letters,
which are prior to the February 2003 rating decision.  The RO
notified the veteran again in November 2003.

The RO notified the veteran of the responsibilities of the VA
and the veteran in developing the record.  Specifically, the
RO notified the veteran that VA would obtain all relevant
evidence in the custody of a federal department or agency.
The RO notified the veteran of his responsibility to respond
in a timely manner to the VA's requests for specific
information and to provide a properly executed release so
that VA could request the records for him.  The RO also
requested the veteran to advise VA if there was any other
information or evidence he considered relevant to his claim
for service connection for PTSD, so that VA could help by
getting that evidence.

The Board notes that the May 2002 and August 2002 VA letters
notified the veteran that he had 30 days from the date of the
letters to respond.  The veteran was further advised that if
he did not respond by the end of the 30-day period, his
appeal would be decided based on the information and evidence
currently of record.  In a decision promulgated on September
22, 2003, Paralyzed Veterans of America v. Secretary of
Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United
States Court of Appeals for the Federal Circuit invalidated
the 30-day response period contained in 38 C.F.R. �
3.159(b)(1) as inconsistent with 38 U.S.C.� 5103(b)(1).  The
Court made a conclusion similar to the one reached in
Disabled Am. Veterans v. Secretary of Veterans Affairs, 327
F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board
regulation, 38 C.F.R. � 19.9).  The court found that the 30-
day period provided in � 3.159(b)(1) to respond to a VCAA
duty to notify is misleading and detrimental to claimants
whose claims are prematurely denied short of the statutory
one-year period provided for response.

The Veterans Benefits Act of 2003, Pub. L. No. 108-183, �
701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at
38 U.S.C.A. � 5103(b)), however, amended section 5103(b) to
provide that the one-year limitation in that section should
not be construed to prohibit VA from making a decision on the
claim before the expiration of the one-year period.  This
section of the Veterans Benefits Act of 2003 also provides
that nothing in the section should be construed to require
re-notification or additional notification to the claimant.
This amendment is effective as if enacted on November 9,
2000.  Consequently, there is no defect with the VCAA notice
given to the veteran in this case.

The RO notified the veteran why he was not entitled to
service connection for PTSD in the February 2003 rating
decision, and the May 2003 statement of the case.  The RO
notified the veteran of the laws and regulations pertaining
to service connection and provided a detailed explanation why
service connection was not warranted for PTSD under the
applicable laws and regulations based on the evidence
provided.

Upon a review of the claims folder, the Board finds that the
veteran and his representative were notified of the evidence
and information necessary to substantiate his claim for
service connection; were notified of the respective
responsibilities of VA and himself as it pertained to who was
responsible for obtaining such evidence; and also were
notified to submit all relevant evidence he had to the RO.
Thus, the Board concludes that the duty to notify the veteran
has been satisfied under 38 U.S.C.A. � 5103; 38 C.F.R. �
3.159.

II.  Duty to Assist

VA also must make reasonable efforts to assist the veteran in
obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159 (2004).

In the present case, the evidence includes service medical
records, an August 2000 private social worker report, and a
November 2000 private psychiatry report.  The Board finds
that there are no additional medical treatment records
necessary to proceed to a decision in this case.

In addition, for disability compensation, VA will provide a
medical examination or obtain a medical opinion based upon a
review of the evidence of record if VA determines it is
necessary to decide the claim.  38 C.F.R. � 3.159(c)(4).
Here, VA provided a VA medical examination in January 2004,
and the examiner rendered a considered medical opinion
regarding the pertinent issues in this matter.

In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the veteran in developing
the facts pertinent to the issue of service connection is
required to comply with the duty to assist under the VCAA.
38 U.S.C.A. �� 5103 and 5103A; 38 C.F.R. � 3.159.
Analysis

In March 2002, the veteran filed a claim of service
connection for PTSD.  The veteran contended that while
serving in the U.S. Navy from 1970 to 1972, including one
year on the USS New Orleans, he witnessed a helicopter from
the USS Tripoli crash into the ocean after one of the rotors
struck the superstructure of the ship.  He does not recall
the casualty count.  He also stated that the USS New Orleans
served as a medical evacuation hospital for the Marine
Battalion Landing Teams, and that during general quarters, he
was a radiophone talker and witnessed burned casualties on
one occasion.  He further noted that he experienced other
traumatic events while serving in the U.S. Army during the
Gulf War, where he was assigned to the 401st MP Company (EPW)
as part of the 755th AG Company (Postal), near Al-Sarrar just
south of the Kuwait border.  Specifically, he stated that he
was in Hafir Al-Batin when the war started, and that they
were fired on the second night of the war.  He stated that he
saw hundreds of dead Iraqis in Khafji and in Kuwait on the
Basra highway.

In April 2003, the veteran's wife submitted correspondence,
in which she noted that before the Gulf War, the veteran
participated in his daughters' activities and always wanted
to be involved in their daily lives.  She also stated that he
was a loving and caring husband.  She noted that he held a
degree in Accounting and was "business minded."  She
observed that after the Gulf War, the veteran was unable to
concentrate, prioritize, or organize well enough to function
in an accounting type position.  She also noted that he did
not sleep well and would not sit in a room with his back
toward a door or in a place where he was unable to see
everything going on around him.  She found that he had
terrible mood swings, was irritable, and rarely enjoyed
anything, including hunting.  She noted that their marriage
suffered because of his depression and they got a divorce;
although they later remarried.  She noted that he was doing
fine for a while after he got a new job, but then hit a major
low and had to resign.

The veteran's daughters also submitted April 2003
correspondence, in which they stated that before the Gulf
War, their father was full of life and enjoyed being with
family and friends.  They stated that he took them on family
vacations and made sure their needs and most of their wants
were met.  They noted that after the Gulf War, he came home a
totally different person.  He did not attend school
activities.  He left their Mom alone to raise them, and hated
to socialize with friends or be involved in family
activities.  They also noted that when they visit home, they
usually find him asleep on the couch, day or night.

In an August 2000 medical and social assessment, a social
worker and certified trauma specialist noted that the veteran
was the source of the information and was considered
reliable.  The social worker found that the veteran had
short-term memory loss, feelings of helplessness,
hopelessness, loss of interest, energy, and motivation,
suicidal ideation without plan, and blunted affect.  He found
the veteran's moods to be recurrent and to occur for no
reason at all.  He noted that the veteran was treated with
antidepressant medication.  He also reported the veteran to
have nightly sleep disruptions, occasional nightmares, and
occasional night sweats.  He noted that he had recurrent and
intrusive memories of being mortared and of friends, who were
killed, plane crashes, chemical alerts, and the Highway of
Death.  He found the veteran to be easily triggered by rains,
helicopters, heat, diesel smells, and loud sounds.  He noted
that the avoidant behavior consists of depression, isolation,
avoidance of people and places, emotional distancing from his
wife and children, forgetfulness, and emotional constriction.
He also noted that his arousal symptoms include sleep
disruptions, nightmares, night sweats, intrusive memories,
sensitivity to injustice, problems with authority, problems
with concentration, self-destructive behavior, anxiety,
distrust, startle response, and anger eruptions over minor
things.  The examiner found that all of these symptoms meet
all of the requirements of, and are consistent with, the DSM-
IV Diagnostic Manual for a diagnosis of PTSD due to war
related events in two wars.  The diagnosis was PTSD, chronic,
severe.

A private psychiatrist submitted November 2000
correspondence, in which he noted that he had evaluated the
veteran in connection with his application for VA
compensation for PTSD.  The psychiatrist indicated that he
was a "different person" after his return from Saudi
Arabia.  The veteran found himself to be more irritable,
staying angry all the time, so that he could not tolerate
supervisors at his job site.  The psychiatrist noted that the
alteration in his personality and temperamental display
persist, in addition to the memory of the sights and smells
of the destruction in Saudi Arabia.  The diagnosis was Axis
I: PTSD, chronic of mild to moderate intensity; and Axis IV:
Combat-related stressors mostly from Desert Storm conflict.

A January 2004 VA PTSD examination report reveals that the
examiner specifically reviewed the veteran's claims file and
military record as well as obtained information from the
veteran during examination.  The examiner noted that the
veteran denied any stressors would produce PTSD in
individuals.  In fact, he denied any acute specific
stressors.  Specifically, the examiner stated that the
veteran did not have re-experiencing, panic anxiety and
depression associated with many persons with PTSD.  Also,
while the veteran displayed some avoidance, this was
associated with discomfort as opposed to trauma per se.  The
examiner thus found that the veteran did not meet all of the
criteria for PTSD.  He determined that psychometric testing
results showed some difficulty being around others, anger,
and depression, which was not being channeled productively,
and a number of somatic complaints.  The examiner concluded
that overall, given his background, his report was not really
consistent with PTSD, especially since the scale was down.
The examiner found the report more consistent with alienation
from others and affective problems.  Last, the examiner noted
that the veteran has some adjustment problems after returning
from military duty, which are reasonably related to some of
the things that happened to him, probably alienation from his
family and certainly the effects leading to loss of job.  The
diagnoses were anxiety disorder, not otherwise specified, and
depressive disorder, not otherwise specified. Axis V: Current
Global Assessment Function of 55-60, highest in the past year
same, with being unable to separate the effects.

Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in the
line of duty or for aggravation of a pre-existing injury or
disease in the line of duty.  38 U.S.C.A. � 1110; 38 C.F.R.
�� 3.303, 3.304, 3.306.  Service connection also 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).

Where a veteran served ninety days or more during a period of
war and certain chronic diseases, including psychoses,
becomes manifest to a degree of 10 percent within one year
from date of termination of such service, such disease shall
be presumed to have been incurred in service even though
there is no evidence of such disease during the period of
service.  This presumption is rebuttable by affirmative
evidence to the contrary.  38 U.S.C.A. �� 1101, 1112, 1113;
38 C.F.R. �� 3.307, 3.309.

Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R. �
4.125(a); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred.  38 U.S.C.A. � 1154; 38 C.F.R. � 3.304(f).

If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
this combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor.  38 C.F.R. � 3.304(f); see 38 U.S.C.A. � 1154(b);
see also Cohen v. Brown, 10 Vet. App. at 138; Zarycki v.
Brown, 6 Vet. App. 91, 98 (1993).  Regardless of whether the
veteran is determined to have engaged in combat, a veteran is
still required to show evidence of a current disability and a
link between that current disability and service.  See
Clyburn v. West, 12 Vet. App. 296, 303 (1999).

When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied.  38 U.S.C.A. �
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Although there is a discrepancy in the medical findings on
whether the veteran has PTSD, the Board finds that the
January 2004 VA examination report is the most probative, in
that the examiner specifically reviewed the veteran's claims
file including his service records, addressed the
requirements for a PTSD diagnosis, and why the veteran's
current mental state does not qualify for such a diagnosis.
The examiner noted that the veteran denied stressors, which
for the most part, would produce PTSD.  Additionally, after
review of the record and evaluation of the veteran, the
examiner found that the veteran showed no evidence of
exposure to trauma, but rather had manifestations of
adjustment problems after coming back from the Gulf War,
including alienation from others and affective problems.

While the August and November 2000 reports reflects diagnoses
of PTSD, it does not appear that this diagnosis is based on
anything more than the veteran's reported stressors because
there is no indication that either the social worker or the
psychiatrist who completed the August and November 2000
reports had access to the veteran's service records or
reviewed such records.  Therefore, the Board gives that
diagnosis little, if any, weight in determining whether the
veteran has PTSD.  See LeShore v. Brown, 8 Vet. App. 406
(1995) (holding that evidence that is simply information
recorded by a medical examiner and that is unenhanced by any
additional medical comment by that examiner does not
constitute competent medical evidence).  The August 2000
social worker found that symptoms including helplessness,
hopelessness, loss of interest, energy, and motivation,
suicidal ideation without plan, blunted affect, trouble
sleeping, and occasional nightmares and night sweats met all
of the requirements of the DSM-IV Diagnostic Manual for a
diagnosis of PTSD.  The November 2000 psychiatrist noted that
the alteration in his personality and temperamental display,
in addition to the memory of the sights and smells of the
destruction in Saudi Arabia was sufficient to show PTSD.
Although the social worker and the psychiatrist noted the
veteran's report of his stressors in service, they did not
adequately explain the basis for their findings of PTSD.
Specifically, they did not address whether the veteran
experienced or witnessed events involving actual or
threatened death or serious injury to himself or others,
which caused a reaction of intense fear, helplessness, or
horror.  See Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, p. 209.  Thus, these findings are
not sufficient for purposes of diagnosing PTSD.

In this case, the Board gives greater weight to the reports
of the January 2004 VA examination, which set for the PTSD
criteria and explained with specificity which criteria the
veteran met and which he did not.  Therefore, the Board finds
that the competent medical evidence of record does not
support a current diagnosis of PTSD.

Although the veteran has argued that he has PTSD related to
his military service, this is not a matter for an individual
without medical expertise.  See Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).  While the Board has considered the
veteran's lay assertions, they do not outweigh the most
probative medical evidence of record, which shows that the
veteran does not have PTSD.  A competent medical expert makes
this opinion and the Board is not free to substitute its own
judgment for that of such an expert.  See Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991).  As competent medical
evidence of record does not support a current diagnosis of
PTSD, the Board concludes that the preponderance of the
evidence is against the veteran's claim for service
connection for PTSD.  Since the preponderance of the evidence
is against this claim, the benefit of the doubt doctrine is
not for application.  See Gilbert v. Derwinski, 1 Vet. App.
49 (1990).  Therefore, the claim is denied.

ORDER

Entitlement to service connection for PTSD is denied.

______________________________________________
	CHERYL L. MASON
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs