judge_norm: KEITH W ALLEN

disposition: granted

text:
Citation Nr: 0121000
Decision Date: 08/17/01    Archive Date: 08/27/01

DOCKET NO.  95-07 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico

THE ISSUES

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

2.  Entitlement to an increased rating for a bilateral hearing
loss, currently rated as 10 percent disabling.

3.  Entitlement to a permanent and total disability rating for
non-service-connected pension purposes, including on an
extraschedular basis pursuant to 38 C.F.R. � 3.321(b)(2)
(2000).

REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for
Veterans Affairs

WITNESS AT HEARING ON APPEAL

Jose Arturo Juarbe Ortiz, M.D.

ATTORNEY FOR THE BOARD

Stanley Grabia, Counsel

INTRODUCTION

The veteran had service from August 1971 to October 1973.

This case comes to the Board of Veterans' Appeals (Board) from
rating decisions of the Department of Veterans Affairs (VA)
Regional Office (RO) in San Juan, Puerto Rico, which denied the
claims on appeal.

The claim for non-service connected pension benefits will be
remanded to the RO for further development, whereas the Board
will decide the other claims for service connection for PTSD
and for a higher rating for the bilateral hearing loss.

FINDINGS OF FACT

1.  To the extent required, the RO has developed all evidence
necessary for an equitable disposition of the veteran's claims.

2.  The veteran's service personnel records confirm that he
engaged in combat against enemy forces while in the military,
as reflected by his receipt of the Combat Infantry Badge
specifically denoting this.

3.  The veteran has a confirmed diagnosis of PTSD, which has
been medically linked to stressful events that occurred
coincident with his combat service.

4.  The veteran's service-connected bilateral hearing loss is
manifested by an average pure tone threshold loss, in decibels,
of:

HERTZ

500
1000
2000
3000
4000
RIGHT
45
55
65
70
70
LEFT
35
50
65
65
70
The average decibel loss is 65 for the right ear and 63 for the
left ear, and speech recognition ability is 84 percent
bilaterally, equating to a level V hearing loss in his right
ear and a level III hearing loss in his left ear.

CONCLUSIONS OF LAW

1.  With resolution of all reasonable doubt in his favor, PTSD
was incurred during the veteran's active duty service.
38 U.S.C.A. �� 1110 (West 1991 & Supp. 2000); Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000); 38 C.F.R. �� 3.303, 3.304 (2000).

2.  The criteria for a rating higher than 10 percent for the
bilateral hearing loss disability have not been met.
38 U.S.C.A. �� 1155 (West 1991 & Supp. 2000); Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000); 38 C.F.R. �� 4.1-4.14, 4.85-4.87 (1998 & 2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In November 2000, the President of the United States signed
into law the Veterans Claims Assistance Act of 2000 (VCAA).
This Act introduces several fundamental changes into VA's
adjudication process including the elimination of any
requirement that a veteran submit a well-grounded claim.  Here,
the Board is satisfied that all relevant facts have been
properly developed and that VA has fulfilled its duty to assist
the veteran as mandated by the Veterans Claims Assistance Act
of 2000.  The veteran has been informed of the evidence
necessary to substantiate his claims and provided an
opportunity to submit such evidence.  Moreover, VA has
conducted reasonable efforts to assist him in obtaining
evidence necessary to substantiate his claims.  In this
respect, the RO has made numerous attempts to develop the
record, has obtained his treatment records, and has had him
examined.  Finally, he has not identified any additional,
relevant evidence that has not been requested or obtained.
Accordingly, the Board finds that the duty to assist has been
fulfilled.  Id.

I.  Service connection for PTSD

Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by active service.
38 U.S.C.A. �� 1110, 1131 (West 1991 & Supp. 2000).  If a
chronic disease is shown in service, subsequent manifestations
of the same chronic disease at any later date, however remote,
may be service connected, unless clearly attributable to
intercurrent causes.  38 C.F.R. � 3.303(b) (2000).  However,
continuity of symptomatology is required where the disease or
injury in service is not shown to be chronic or where
chronicity of the disease or injury in service legitimately may
be questioned.  Id.  Service connection also may be granted for
any disease initially diagnosed after discharge from service,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 U.S.C.A. � 1113(b) (West 1991); 38 C.F.R. � 3.303(d) (2000).
The Board must determine whether the evidence supports the
claim or is in relative equipoise, with the veteran prevailing
in either case, or whether the preponderance of the evidence is
against the claim, in which case service connection must be
denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In addition, service connection for PTSD requires a medical
diagnosis of PTSD (presumed to include the adequacy of the PTSD
symptomatology and the sufficiency of a claimed in-service
stressor); credible supporting evidence that the claimed
in-service stressor actually occurred; and medical evidence of
a causal nexus between current symptomatology and the specific
claimed in-service stressor.  38 C.F.R. � 3.304(f) (2000);
Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Samuels v. West,
11 Vet. App. 433, 435 (1998).  Revisions were made to
38 C.F.R. � 3.304(f), effective March 7, 1997.  But the
revisions still require the three essential elements set forth
above, only with less formal evidentiary requirements.  Thus,
the Board may proceed to consider the claim for PTSD in this
case without prejudicing the veteran.  Cf. Bernard v. Brown, 4
Vet. App. 384 (1993).

With respect to the first element under the old criteria, the
United States Court of Appeals for Veterans Claims-formerly,
the U.S. Court of Veterans Appeals (Court) has held that "a
clear (that is, unequivocal) PTSD diagnosis by a mental-health
professional must be presumed 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."  Cohen,
10 Vet. App. at 139.  Moreover, the Court concluded that
"under the DSM-IV, the mental illness of PTSD would be treated
the same as a physical illness for purposes of VA disability
compensation in terms of predisposition toward development of
that condition."  Id. at 141 (incorporating the "eggshell
plaintiff" rule to service connection awards).

With regard to the second element, the evidence necessary to
establish that the claimed stressor actually occurred varies
depending on whether it can be determined that the veteran
"engaged in combat with the enemy."  38 U.S.C.A. � 1154(b)
(West 1991).  The Court has held that "[w]here it is
determined, through recognized military citations or other
supportive evidence, that the veteran was engaged in combat
with the enemy and the claimed stressors are related to such
combat, the veteran's lay testimony regarding claimed stressors
must be accepted as conclusive as to their actual occurrence
and no further development for corroborative evidence will be
required, provided that the veteran's testimony is found to be
'satisfactory,' e.g., credible, and 'consistent with the
circumstances, conditions, or hardships of [combat] service'."
Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); 38 U.S.C.A.
� 1154(b) (West 1991); 38 C.F.R. � 3.304(d), (f) (1999); see
also Gaines v. West, 11 Vet. App. 113 (1998) (determination of
whether veteran engaged in combat with enemy is particularly
significant in PTSD cases).

Under the old criteria, if the claimed in-service stressor was
related to combat, service department evidence that the veteran
had engaged in combat or that he was awarded the Purple Heart,
Combat Infantryman Badge, or similar combat citation
was accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed in-service stressor.  38
C.F.R. � 3.304(f).  Under the revised criteria, it also is
required that the evidence establishes that the veteran engaged
in combat with the enemy.  However, if the "claimed stressor
is not combat related, a veteran's lay testimony regarding in-
service stressors is insufficient to establish the occurrence
of the stressor and must be corroborated by 'credible
supporting evidence'."  Cohen, 10 Vet. App. at 142 (citing
Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Doran v. Brown, 6
Vet. App. 283 (1994)).

In this case, the Board notes that the service records reveal
that the veteran served in Vietnam, as an infantryman.  And his
commendations include the Combat Infantry Badge (CIB).  He
alleges that he developed PTSD as a result of various
firefights in which members of his unit were killed or wounded.
In addition, he alleges that a friend named Efraim Rivera was
killed along with 37 others in a helicopter crash.

Since the veteran received the Combat Infantry Badge, this is
prima fascia evidence that he engaged in combat with the enemy.
VAOPGCPREC 12-99 (Oct. 18, 1999).  Thus, the Board finds that
his statements regarding his claimed stressors are conclusive
proof of their actual occurrence, and no further development
for corroborative evidence is required.

The post-service medical records reveal that the veteran was
admitted and treated at the First Hospital Panamericano for 30
days, from March to April 1993.  He had various diagnoses-
including panic attack, paranoid schizophrenia,
major depression, and PTSD.

Upon his release, the veteran immediately was seen at a VA
medical center (VAMC).  He reported frequent nightmares of
Vietnam, and was re-experiencing events that had occurred
there.  He recalled a close friend's death.  While the examiner
noted the veteran had been treated for depression and PTSD, the
diagnostic impression was to rule out PTSD.

Subsequent VA records, dated in December 1993, noted the
veteran had been hospitalized from November to December 1993,
and was being followed at the VA PTSD clinic.  He reported
hyperalertness, recurrent dreams and recollections of Vietnam,
trouble concentrating, increased irritability, restlessness,
anxiety, tearfulness, insomnia, and fear of losing control.
The diagnoses were PTSD, delayed, and major depression with
psychotic features.  A Global Assessment of Functioning (GAF)
score of 50 was assigned.

The veteran underwent several VA examinations beginning with an
April 1994 VA examination by a board of three psychiatrists.
He reported functioning well until about a year earlier when he
began having flashbacks.  He was being followed at the VA PCT
Program.  He also reported receiving Social Security
Administration (SSA) Pension benefits.  His medical records and
claims file were reviewed.  It was noted that he was being
treated by VA for PTSD.  He had had multiple jobs since
separation from service, but was not currently employed.  The
examiners noted he was appropriately dressed.  He was somewhat
tense, but his affect did not match his complaints.  No tears
were observed during the interview, and no depressive signs
were noted.  He expressed freely, was relevant, coherent, and
well organized.  There were no thought or perception disorders
noted.  He was well oriented in 3 spheres; his memory was
preserved; and retention and recall were good.  It was felt
that he suffered from a floating anxiety.  Voluntary component
was marked, and not considered a true psychological effect.  No
suicidal ruminations were found.  The diagnosis was anxiety
disorder, not otherwise specified (NOS).  It was the unanimous
opinion of the Board that there was no evidence that the
veteran met the criteria for a diagnosis of PTSD.

In March 1996, the veteran was examined by a member of the
April 1994 psychiatric board-who noted the record included
diagnoses of PTSD and major depression with psychotic features.
The veteran had been unemployed for 2 1/2 years, and lived with
his wife and four children.  He received VA compensation and
SSI benefits.  He reported experiencing anxiety, depression,
flashbacks, and nightmares.  The examiner noted the veteran was
appropriately dressed, alert, and oriented x 3.  He was stiff
and rigid, which may have been due to medication.  His mood was
slightly anxious; his affect was constricted; and his
attention, concentration, and memory were good.  His speech was
clear, coherent, and loud.  He was not hallucinating, suicidal,
or homicidal, and no thought or perception disorders were
noted.  His insight and judgment were fair.  The diagnoses were
anxiety disorder, NOS, and passive-aggressive and dependent
personality traits.  A GAF score of 65 was assigned.

During a November 1999 VA mental status examination, by another
member of the April 1994 psychiatric board, the examiner noted
several psychiatric admissions since 1993.  The last VA
admission was in 1997.  The final diagnoses at that time
were impulse control disorder and PTSD.  The examiner currently
evaluating the veteran noted that he was casually dressed,
alert, with a very flat and inappropriate affect.  He was
notably disorganized with looseness of association and a tense
mood.  From the beginning of the interview, he started talking
and practically did not stop, making statements one after the
other with the same fixed flat facial expression.  He spoke
rather illogically and obsessively.  He did not specify any
stressor event in Vietnam, except that it was very hard for
him.  He was oriented x 3, and his memory was grossly
preserved, but disorganized.  His intellectual functioning
seemed average, but affected due to disorganization of his
thoughts.  His judgment and insight were poor.  A field survey
also was conducted and considered along with the other evidence
of record prior to rendering a diagnosis.  It was noted that,
while the veteran had been examined on various occasions for
PTSD, the condition was not diagnosed in relation to his
symptomatology.  Rather, he had shown variability in terms of
his complaints and symptoms throughout the years since service,
with what appeared to have been psychotic events.  So in the
present examiner's opinion, the appropriate diagnoses were
schizoaffective disorder, mixed, and personality disorder, NOS.
A GAF score of 50-55 was assigned.

A hearing was held in June 2000 at the RO.  And while the
veteran did not testify personally, expert testimony was
offered, instead, by Jose Arturo Juarbe Ortiz, M.D.  He
indicated that he had been a psychiatrist for over 30 years
and, in that capacity, had testified as an expert witness
before the VA, SSA, as well as Federal and State Courts and
Agencies.  Dr. Ortiz also stated, in essence, that he had
reviewed the veteran's medical records and claims file, and
that in his professional medical opinion the veteran had PTSD
due to his traumatic experiences in Vietnam.

Following the June 2000 hearing, the veteran underwent another
VA mental status evaluation in August 2000.  The examining
physician again was one of the three psychiatric board members
from the 1994 examination.  He reviewed the veteran's medical
and other records, including the hearing testimony of Dr.
Ortiz.  The VA examiner noted the veteran was clean, unshaven,
overweight, properly dressed, but rigid.  He was alert and
oriented x 3, with a slightly depressed mood, and he had a
blunted affect.  His attention and concentration were good.
His memory, insight, and judgment were fair.  His speech was
clear and coherent.  He was not hallucinating, suicidal, or
homicidal.  The diagnosis was schizoaffective disorder with
depressive features.  A GAF score of 60 was assigned.  The
examiner opined that the veteran did not suffer a sufficient
stressor, noting that the alleged exposure to combat lacked
details and specifics of the alleged stressing situations.
Consequently, he did not fulfill the diagnostic criteria for
PTSD, nor was there a link between a diagnosis of PTSD and a
recognized stressor or stressors in service.

As previously noted, the veteran was awarded the Combat
Infantry Badge and, as such, his statements-alone-regarding
his claimed stressors in service are conclusive proof of their
actual occurrence in the absence of any affirmative evidence to
the contrary, and no further development for corroborative
evidence is required.  Secondly, the treatment records and Dr.
Ortiz's expert testimony during the hearing reflect a diagnosis
of PTSD and, moreover, conclude that the PTSD is related to
stressful events that occurred in combat.  Therefore, a link,
established by medical evidence, between the current symptoms
and the in-service stressors has been provided.  The evidence
of record thus reflects that all three requirements to
establish a claim of entitlement to service connection for PTSD
have been met.  And as a result, the appeal concerning this
claim must be granted.

While none of the VA psychiatric examiners who evaluated the
veteran in April 1994, March 1996, November 1999, and August
2000 believed that a diagnosis of PTSD was warranted-and
diagnosed, instead, other psychiatric conditions not related to
his military service, he still is entitled to service
connection for PTSD in this particular instance because the
other evidence of record places the evidence, as a whole,
into relative equipoise for and against his claim.  And that
being the case, all reasonable doubt concerning whether he has
PTSD, and whether it is related to his combat service in
Vietnam, must be resolved in his favor. 38 C.F.R. � 3.102
(2000); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

II.  Increased rating for a bilateral hearing loss

The record reveals that the veteran initially was awarded
service connection for a bilateral hearing loss in a May 1974
rating decision and assigned a noncompensable (i.e., 0 percent)
rating, effective from November 1973.  His rating was increased
in March 1986 to 10 percent, effective from April 1985, and it
has remained at that level since.  In October 1996, the RO
received his claim for a higher rating for his bilateral
hearing loss.  However, the RO denied his claim,
and this appeal ensued.

Disability evaluations are determined by the application of a
schedule of ratings based on average impairment of earning
capacity.  Generally, the degrees of disability specified is
considered adequate to compensate for considerable loss of
working time from exacerbations or illnesses proportionate to
the severity of the several grades of disability.  38 C.F.R. �
4.1 (2000).  Separate diagnostic codes identify the various
disabilities.  38 U.S.C.A. � 1155 (West 1991 & Supp. 2000);
38 C.F.R. Part 4 (2000).  Where there is a question as to which
of two evaluations shall be applied, the higher evaluation will
be assigned if the disability more closely approximates the
criteria required for that rating; otherwise, the lower rating
will be assigned.  38 C.F.R. � 4.7 (2000).  And when, after
careful consideration of all of the evidence, there is an
approximate balance of evidence for and against the claim, all
reasonable doubt will be resolved in favor of the veteran.  38
C.F.R. � 4.3 (2000).  Also, when making determinations
concerning the appropriate rating to be assigned, VA must take
into account the veteran's entire medical history and
circumstances.  See 38 C.F.R. � 4.1; Schafrath v. Derwinski,
1 Vet. App. 589, 592 (1995).  However, where, as here, he is
requesting a higher rating for a disability that was service
connected many years ago, as opposed to appealing the rating
that initially was assigned just after establishing his
entitlement to service connection, his current level of
functional impairment due to his disability is of primary
importance.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994);
Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  And this, in
turn, means the Board does not have to consider whether he is
entitled to a "staged" rating to compensate him for times
since filing his current claim when his disability may have
been more severe than at other times during the course of his
appeal.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Ratings for bilateral defective hearing range from 0 to 100
percent based on organic impairment of hearing acuity as
measured by the results of controlled speech discrimination
tests together with the average hearing threshold level as
measured by a pure tone audiometry test in the frequencies of
1,000, 2,000, 3,000, and 4,000 Hertz.  The rating schedule
establishes 11 auditory acuity levels designated from level I
for essentially normal auditory acuity through level XI for
profound deafness.  38 C.F.R. � 4.85, Diagnostic Codes 6100-
6110.

The veteran filed his claim for an increased rating for his
bilateral hearing loss in October 1996.  And during the
pendency of his appeal, the criteria used for rating diseases
of the ear (and other sense organs) were amended-effective
June 10, 1999.  While the eleven auditory acuity levels alluded
to above did not change for determining the severity of his
hearing loss disability, and continue to be codified at
38 C.F.R. � 4.85, the June 1999 amendment added the provisions
of 38 C.F.R. � 4.86 for evaluating exceptional patterns of
hearing impairment.

(a) When the puretone threshold at each of
the four specified frequencies (1000, 2000,
3000, and 4000 Hertz) is 55 decibels or
more, the rating specialist will determine
the Roman numeral designation for hearing
impairment from either Table VI or Table
VIA, whichever results in the higher
numeral.  Each ear will be evaluated
separately.

(b) When the puretone threshold is 30
decibels or less at 1000 Hertz, and 70
decibels or more at 2000 Hertz, the rating
specials will determine the Roman numeral
designation for hearing impairment from
either Table VI or Table VIA, whichever
results in the higher numeral.
That numeral will then be elevated to the
next higher Roman numeral.  Each ear will
be evaluated separately.

See 38 C.F.R. � 4.86 (2000).

In this particular instance, however, the new provisions of
section 4.86 do not apply to the left ear because the results
of the two most recent VA audiological examinations, in
February 2001 and July 1997, show that the veteran does not
have a sufficient decibel loss in this ear at all of the
enumerated frequencies to warrant application of this new
regulation.  Therefore, insofar as his hearing loss in this ear
is concerned, although there was a partial change in the method
used to rate the severity of his bilateral hearing loss
disability as a result of the new criteria, the change is not
actually "more favorable" to him in comparison to the rating
criteria previously in effect.  See Karnas v. Derwinski, 1 Vet.
App. 308, 312-13 (1991).

During the most recent VA audiometric examination in February
2001, the pure tone threshold losses, in decibels, were as
follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
45
55
65
70
70
LEFT
35
50
65
65
70

The average decibel loss was 65 for the right ear and 63 for
the left ear.  Speech audiometry revealed speech recognition
ability of 84 percent, bilaterally.  The clinical summary
indicated a moderate-to-moderately severe sensorineural
hearing loss in the right ear, a mild-to-moderately severe
hearing loss in the left ear, and mildly reduced speech
recognition, bilaterally.

During the earlier VA audiometric examination in July 1997, the
pure tone threshold losses, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
40
55
65
65
65
LEFT
35
50
60
65
70

The average decibel loss was 62 for the right ear and 61 for
the left ear.  Speech audiometry revealed speech recognition
ability of 84 percent, bilaterally.  The clinical summary
indicated a mild-to-moderately severe sensorineural
hearing loss.

Thus, since the veteran only had a 50 decibel loss in his left
ear at 1,000 Hertz during both the February 2001 and July 1997
VA audiological evaluations, the new provisions of 38 C.F.R.
� 4.86 do not apply to this ear.  He did, nevertheless, have a
sufficient loss in his right ear of at least 55 decibels at
this and the other frequencies of 2,000, 3,000, and 4,000 Hertz
to warrant application of this new regulation.  So the Board
must evaluate the severity of his hearing loss in this ear
under the old criteria until the effective date of the change
in regulation-in June 1999.  And thereafter, the degree of
hearing loss in this ear must also be evaluated under both the
old and the current provisions-with the most favorable version
ultimately being applied in rating his disability.  See Dudnick
v. Brown, 10 Vet. App. 79 (1997); see also Rhodan v. West, 12
Vet. App. 55 (1998); Haywood v. West, 12 Vet. App. 55 (1998)
(revised regulations are not applied retroactively unless they
contain a provision expressly indicating that they should be
and, if not, only may be applied as of the effective date of
the change).

Under the former criteria in effect prior to June 10, 1999, an
average decibel loss in the right ear of 65 (from the February
2001 VA audiological evaluation) combined with a speech
discrimination score of 84 percent correlated to level III
hearing acuity.  See 38 C.F.R. � 4.87, Table VI (1998).
Similarly, an average decibel loss in the left ear of 63 (also
from the February 2001 VA audiological evaluation) combined
with a speech discrimination score of 84 percent correlated to
level III hearing acuity.  Id.  And level III hearing acuity
also resulted from the combination of a 62 decibel loss in the
right ear (from the July 1997 VA audiological evaluation) and
speech recognition ability of 84 percent, as it did also from
the combination of a 61 decibel loss for the left ear (from the
July 1997 VA audiological evaluation) and speech recognition
ability of 84 percent.  Id.  Level III hearing, bilaterally, in
turn correlated to a noncompensable (i.e., 0 percent) rating.
38 C.F.R. � 4.87, Diagnostic Code 6100, Table VII (1998).  So
under the old criteria, considering the results of either the
February 2001 or July 1997 VA audiological evaluation, the
veteran clearly would not be entitled to a higher rating than
he already has.  The assignment of disability ratings for
hearing impairment was derived by a mechanical application of
the rating schedule to the numeric designations assigned after
audiometric evaluations were rendered.  See Lendenmann v.
Principi, 3 Vet. App. 345 (1992).  And the schedular ratings
also were intended to make proper allowances for improvement by
hearing aids.  38 C.F.R. � 4.86 (1998).

The above decibel losses and speech recognition data that were
obtained for the right and left ears during the February 2001
and July 1997 VA audiological examinations also correlate to
level III hearing acuity, bilaterally, under the revised
criteria of 38 C.F.R. � 4.85, Tables VI and VII (2000).  So the
veteran, in turn, is not entitled to a rating higher than he
already has under this revised regulation, either.  Hence, the
only issue that remains is whether he is entitled to a higher
rating under the revised criteria of 38 C.F.R. � 4.86-as this
revised regulation pertains specifically to his right ear since
he does not have sufficient hearing loss in his left ear to
warrant its application.  According to 38 C.F.R. � 4.85, Table
VIA (2000), a 65 puretone threshold average from the February
2001 VA audiological evaluation results in level V hearing
acuity in the right ear, and a 62 decibel loss from the earlier
VA audiological evaluation in July 1997 results in level IV
hearing acuity in this ear.  So the Board will use the higher
level V hearing acuity in this ear that was observed during the
more recent VA audiometric evaluation in February 2001 to give
the veteran the best chance of obtaining a higher rating for
his bilateral hearing loss disability.  However, even when
combining his level V hearing acuity for his right ear with his
static level III hearing acuity for his left ear correlates to
only a 10 percent rating under 38 C.F.R. � 4.85, Table VII
(2000).  And he already has a 10 percent rating for his
bilateral hearing loss disability.  Consequently, the revisions
in the rating criteria do not provide any additional tangible
benefit to him in this instance.

There also is no objective medical or other indication that the
schedular criteria are inadequate to properly evaluate the
severity of the veteran's bilateral hearing loss disability-
considering such factors as whether there has been marked
interference with his employment (i.e., beyond that
contemplated in the rating currently assigned) or frequent
periods of hospitalization.  38 C.F.R. � 3.321(b)(1) (2000).
The vast majority of the treatment and evaluation that he has
received for his hearing loss has been on an outpatient (as
opposed to an inpatient) basis.  And to the extent that he
has experienced any occupational impairment, it primarily has
been attributed to conditions other than his hearing acuity.
So he is not entitled to a higher rate of compensation for his
bilateral hearing loss disability on an extra-schedular basis.

The Board is mindful of the veteran's allegations that his
hearing loss disability is worse than currently rated.
However, as alluded to earlier, the ratings for hearing loss
disabilities are derived by a "mechanical application" of
level of hearing acuity shown during the objective testing to
the specifically enumerated criteria of the rating schedule.
In other words, the Board does not have any discretion but to
correlate the results of the hearing tests to the tables used
in the rating schedule to determine the appropriate rating;
this is a ministerial function, so the Board has no choice but
to deny his claim for a higher rating.  See Lendenmann, 3
Vet. App. at 349.  The preponderance of the evidence is against
the claim, so the benefit-of-the-doubt doctrine does not apply.
See Alemany, 9 Vet. App at 519.

ORDER

Service connection for PTSD is granted, subject to the laws and
regulations governing the payment of VA compensation.

An increased rating for the bilateral hearing loss, currently
rated as 10 percent, is denied.

REMAND

The veteran believes that he should be granted pension benefits
due to his
non-service connected disabilities because they prevent him
from securing and maintaining substantially gainful employment.
After a preliminary review of the record on appeal, the Board
finds that additional development of the evidence is necessary
prior to deciding this claim.

The record reflects that the veteran, in his February 1995
pension claim, indicated that he had been awarded SSA
disability benefits.  The records pertaining to the award of
those benefits have not been obtained and associated with the
other evidence of record, and they should be.  See Lind v.
Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski,
2 Vet. App. 363, 370-372 (1992).  Thus, the RO must request
complete copies of any SSA records utilized in awarding the
veteran disability benefits-including a copy of the SSA's
decision deciding his claim.

The evidence of record shows the veteran has several non-
service-connected physical and mental disorders-including
onychomycosis, hyperlipidemia, hypercholesterolemia, seborrheic
dermatitis, internal hemorrhoids, colonic diverticula, an
anxiety disorder, passive aggressive and dependent
personality traits, major depression, paranoid schizophrenia, a
schizoaffective disorder, and a personality disorder, etc.  He
also is service connected for a bilateral hearing loss and
PTSD.  The January 2000 rating decision on appeal did not
evaluate or list all of these disabilities.  Furthermore, as a
result of this decision, service connection was granted for
PTSD, so the initial rating determination must still be made by
the RO.

In light of the veteran's statements and the medical evidence
of record, the Board concludes that the claim must be remanded
to the RO to afford him appropriate VA examinations for all of
his disabilities to properly adjudicate his claim.

According to applicable regulations, an evaluation must be
performed under the Schedule for Rating Disabilities to
determine the percentage of impairment caused by each
disability which is claimed by the veteran.  See 38 C.F.R. Part
4 (2000); see also Roberts v. Derwinski, 2 Vet. App. 287
(1992).  VA has the responsibility of identifying all
disabilities which the veteran currently has, determining
whether they are permanent in nature, and assigning a schedular
evaluation for each.  Id.  The Court has held that VA
adjudicators, when considering a claim for pension benefits,
must consider whether the veteran is unemployable as a result
of a lifetime disability, i.e., an "objective" standard, or
if he is not unemployable, whether there nonetheless exists a
lifetime disability that would render it impossible for an
average person to follow a substantially gainful occupation,
i.e., a "subjective" standard.  38 U.S.C.A. �� 1502, 1521
(West 1991); 38 C.F.R. �� 3.321, 4.15, 4.16, and 4.17 (2000);
Brown v. Derwinski, 2 Vet. App. 444 (1992).  On remand, all
diagnosed disabilities should be rated according to the
criteria set forth in the Schedule for Rating Disabilities.

The Board further notes that, because of the change in the law
brought about by the Veterans Claims Assistance Act of 2000
(VCAA), a remand in this case also is required for compliance
with the notice and duty to assist provisions contained in the
new law.  See Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, � 7, subpart (a), 114 Stat. 2096, 2099-2100
(2000).  See also Bernard v. Brown, 4 Vet. App. 384 (1993); VA
O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57
Fed. Reg. 49,747 (1992)).  Therefore, for these reasons as
well, a remand is required.

Accordingly, the claim for pension is REMANDED to the RO for
the following development and consideration:

1.  The RO should contact the veteran to
determine the names, addresses, and dates
of treatment of any physicians, hospitals,
or treatment centers (private, VA or
military) who have provided him with
relevant medical treatment for any of his
disabilities, and whose records are not
already associated with the claims file.
The veteran must adequately identify the
records and provide any necessary
authorization.  If the RO, after making
reasonable efforts, is unable to obtain any
records sought, the RO shall notify the
veteran that it is unable to obtain those
records by identifying the records it is
unable to obtain; explaining the efforts
that it made to obtain those records; and
describing any further action to be taken
by the RO with respect to the claim.

2.  The RO should contact the SSA to obtain
the records from that agency pertaining to
the award of disability benefits to the
veteran-including a copy of the decision.
The RO's efforts should continue until the
records are obtained, unless it is
reasonably certain that such records do not
exist or that further efforts to obtain
those records would be futile.  The RO
should proceed with all reasonable follow-up
referrals that may be indicated by the
inquiry.  If the RO, after making reasonable
efforts, is unable to obtain any records
sought, the RO shall notify the veteran that
it is unable to obtain those records by
identifying the records it is unable to
obtain; explaining the efforts that it made
to obtain those records; and describing any
further action to be taken by the RO with
respect to the claim.

3.  The RO should arrange for the veteran to
undergo VA pension examination(s) to
determine the nature and extent of all
disabilities found to be present.  The
claims file must be made available to and
reviewed by the examiner(s) in connection
with the requested study.  The examiner(s)
must describe the impact of the veteran's
disabilities on his industrial adaptability.
All appropriate diagnostic testing deemed
necessary to render clinically supported
diagnoses should be administered.  In
addition, if a psychiatric disorder is
found, a GAF score should be assigned and
explained.  A complete rationale should be
given for all opinions and conclusions
expressed.

4.  The RO then must review the claims file
and ensure that all notification and
development action required by the Veterans
Claims Assistance Act of 2000, Pub. L. No.
106-475 is completed.  In particular, the RO
should ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act (to
be codified as amended at 38 U.S.C. �� 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.

5.  Following any additional development
deemed appropriate by the RO, the RO should
re-adjudicate the claim for pension.  If
the claim continues to be denied,
the veteran and his representative should
be furnished a supplemental statement of
the case (SSOC) that includes the
percentage rating for each diagnosed
disability.  The SSOC also must contain
notice of all relevant actions taken on the
claim for benefits- to include a summary
of the evidence and the applicable laws and
regulations considered pertinent to this
issue.  An appropriate period of time
should be allowed for response.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.

The veteran has the right to submit additional evidence and
argument concerning the claim the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment by the RO.
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 Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1,
Part IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.  See
M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

	Keith W. Allen
	Acting Member, Board of Veterans' Appeals


series: legacy

judge_norm: SHANE A DURKIN

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
Citation Nr: 0123000
Decision Date: 09/21/01    Archive Date: 09/24/01

DOCKET NO.  00-06 038	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a total disability rating based on
unemployability due to service-connected disabilities.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Veteran and spouse

ATTORNEY FOR THE BOARD

R. Giannecchini, Associate Counsel

INTRODUCTION

The veteran had active military service from January 1960 to
July 1981.  This matter came to the Board of Veterans'
Appeals (Board) on appeal of a November 1999 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in Pittsburgh, Pennsylvania.  The veteran testified
before a hearing officer at the RO in April 2000.

REMAND

The veteran was scheduled for a Board hearing in Washington,
D.C. on September 12, 2001.  On September 11, 2001, the day
of the coordinated terrorist attacks on the cities of
Washington, D.C. and New York, the veteran requested that his
hearing in Washington, D.C. be canceled and that he be
afforded a Board hearing at the RO before a traveling member
of the Board or via video conferencing.

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

After obtaining clarification from the
veteran concerning the type of Board
hearing desired, the RO should schedule
the veteran for the requested hearing in
accordance with the docket number of his
appeal.

Thereafter, the case should be returned to the Board for
further appellate action, if otherwise in order.

	Shane A. Durkin
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 2001), 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) (2000).


judge_norm: S L KENNEDY

disposition: denied

condition: heart

benefit: tdiu

text:
Citation Nr: 0124000
Decision Date: 10/02/01    Archive Date: 10/09/01

DOCKET NO.  95-09 220A	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for residuals of a
stroke.

2.  Entitlement to service connection for a heart disorder.

3.  Entitlement to a total disability evaluation based on
individual unemployability due to service-connected
disability or disabilities (TDIU).

REPRESENTATION

Appellant represented by:	Missouri Veterans Commission

ATTORNEY FOR THE BOARD

M. Vavrina, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1954 to
October 1956.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1995 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri.

The veteran requested a Travel Board hearing in his April
1995 Substantive Appeal and one was scheduled to be held in
June 1999.  However, he failed to report for that hearing.
As such, his hearing request is deemed withdrawn.  See
38 C.F.R. � 20.704(e) (2000).

In August 1999, the Board remanded the case to the RO for
additional development.  The RO having made concerted efforts
to comply with the remand, the case is now before the Board
for further appellate consideration.

FINDINGS OF FACT

1.  The RO has expended sufficient efforts to obtain all
relevant evidence necessary for an equitable disposition of
the appeal.

2.  There is no medical evidence of a nexus between residuals
of a stroke and active service.

3.  There is no medical evidence of a nexus between a heart
disorder and active service.

4.  The veteran currently is service connected for
hemorrhoids, rated as noncompensably disabling.

5.  The veteran's service-connected disability does not
preclude him from obtaining or retaining substantially
gainful employment.

CONCLUSIONS OF LAW

1.  Residuals of a stroke were not incurred in or aggravated
by active service.  38 U.S.C.A. �� 1110, 1131, 5103A, 5107
(West 1991 & Supp. 2001); 38 C.F.R. �� 3.303, 3.307, 3.309
(2000); 66 Fed. Reg. 45630-45632 (Aug. 29, 2001) (to be
codified as amended at 38 C.F.R. � 3.159).

2.  A heart disorder was not incurred in or aggravated by
active service.  38 U.S.C.A. �� 1110, 1131, 5103A, 5107 (West
1991 & Supp. 2001); 38 C.F.R. �� 3.303, 3.307, 3.309 (2000);
66 Fed. Reg. 45630-45632 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. � 3.159).

3.  The criteria for a total disability rating based on
individual unemployability due to a service-connected
disability have not been met.  38 U.S.C.A. �� 1155, 5107
(West 1991 & Supp. 2001); 38 C.F.R. �� 3.102, 3.340, 3.341,
4.16 (2000); 66 Fed. Reg. 45630-45632 (Aug. 29, 2001) (to be
codified as amended at 38 C.F.R. � 3.159).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

During the pendency of the appeal, the Veterans Claims
Assistance Act of 2000 (VCAA) became effective.  Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000), now codified at 38 U.S.C.A. �� 5102, 5103,
5103A, 5107 (West Supp. 2001).  This liberalizing legislation
is applicable to the veteran's claims.  Karnas v. Derwinski,
1 Vet. App. 308, 312-13 (1991).  It essentially eliminates
the requirement that a claimant submit evidence of a well-
grounded claim and provides that VA will assist the claimant
in obtaining evidence necessary to substantiate a claim.
Specifically, it requires VA to notify the claimant and the
claimant's representative, if any, of information required to
substantiate a claim, a broader VA obligation to obtain
relevant records and advise a claimant of the status of those
efforts, and an enhanced requirement to provide a VA medical
examination or obtain a medical opinion in cases where such a
procedure is necessary to make a decision on a claim.  VA has
also revised the provisions of 38 C.F.R. � 3.159 effective
November 9, 2000, in view of the new statutory changes.  See
66 Fed. Reg. 45620-45632 (August 29, 2001).  VA is not
required to provide assistance to a claimant if there is no
reasonable possibility that such assistance would aid in
substantiating the claim.

After examining the record, the Board is satisfied that all
relevant facts pertaining to the service-connection and TDIU
claims in issue have been properly developed as service and
private medical records and Social Security Administration
(SSA) disability claim records have been associated with the
file.  The Board notes that the SSA records indicate that the
veteran was significantly impaired and could not work as a
result of his 1986 cerebrovascular accident (CVA) and a
September 1981 statement from R. G. R., M.D., noted that the
veteran had a congenital disorder of myocardial structure.
Under these circumstances, the Board finds that the VCAA does
not mandate an examination.  In a March 1995 Statement of the
Case (SOC), the RO advised the appellant of what must be
demonstrated to establish service connection, including on a
presumptive basis.  The Board finds that the RO has obtained,
or made reasonable efforts to obtain, all treatment and
administrative records, which might be relevant to the
veteran's claim.  Searches of several VA Medical Center
(VAMC) treatment records proved fruitless.  The Board
observes that the RO's efforts have been hampered by the
failure of the veteran to respond to repeated requests for
information on medical providers.  The veteran is advised
that the duty to assist is not a one-way street.  "If a
veteran wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence."  Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991).  Accordingly, no
further assistance to the veteran in acquiring medical
evidence is required by statute.  38 U.S.C.A. � 5103A (West
Supp. 2001).

The Board finds no prejudice to the appellant in this case by
proceeding with the adjudication of the question of
entitlement to service connection or to TDIU as the RO has
complied with the notice provisions of the VCAA.  This is so
because the RO specifically notified him of the requirements
needed for entitlement to service connection and TDIU in the
March 1995 SOC and the May 1996 and June 2001 Supplemental
Statements of the Case.  The RO notified the appellant that
for service connection there must be evidence of a current
disability, evidence of a disease or injury due to service,
and evidence of a link between the disability and service and
that for TDIU that there must be evidence of an inability to
secure and follow a substantially gainful occupation due to
his service-connected disabilities.  Moreover, all of the
relevant evidence was considered.  As such, there has been no
prejudice to the veteran that would warrant a remand, the
veteran's procedural rights have not been abridged, and the
Board will proceed with appellate review.  Bernard v. Brown,
4 Vet. App. 384, 393 (1993).

Service Connection

Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military, naval, or air service.  See 38 U.S.C.A. �� 1110;
1131 (West 1991 & Supp. 2001); 38 C.F.R. �� 3.1(k), 3.303(a)
(2000).  Where a veteran who served for ninety (90) days or
more during a period of war (or during peacetime service
after December 31, 1946) develops certain chronic diseases,
such as cardiovascular disease, to a degree of 10 percent or
more within one year from separation from service, such
diseases may 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.  See 38 U.S.C.A. ��
1101, 1112, 1113, 1137 (West 1991 & Supp. 2001); 38 C.F.R. ��
3.307, 3.309 (2000).  Service connection may also 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).  Further, if a condition noted during service is
not shown to be chronic, then generally, a showing of
continuity of symptoms after service is required for service
connection.  See 38 C.F.R. � 3.303(b).

Service connection connotes many factors but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service.  In order to prevail in a
claim for service connection there must be medical evidence
of a current disability as established by a medical
diagnosis; of incurrence or aggravation of a disease or
injury in service, established by lay or medical evidence;
and of a nexus between the in-service injury or disease and
the current disability established by medical evidence.
Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Medical
evidence is required to prove the existence of a current
disability and to fulfill the nexus requirement.  Lay or
medical evidence, as appropriate, may be used to substantiate
service incurrence.

The Board observes that during the pendency of this appeal,
the veteran has alternately contended that his heart disorder
preexisted service and was aggravated therein.  To establish
service connection for the residuals of a stroke or a heart
disorder on the basis of aggravation, it must be shown that a
condition preexisted service and underwent an increase in
disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease.  See 38 U.S.C.A. � 1153 (West 1991);
38 C.F.R. � 3.306(b) (2000).  Thus, establishing service
connection for a disability based on aggravation requires (1)
evidence sufficient to show that a disease or injury
preexisted service; (2) evidence showing an increase in
disability during service sufficient to raise a presumption
of aggravation of the disability; and (3) an absence of clear
and unmistakable evidence to rebut the presumption of
aggravation which may include evidence showing that the
increase in severity was due to the natural progress of the
disability.  38 C.F.R. � 3.306(b) (2000).  Concerning item
(1), a disorder may be shown to have preexisted service if it
is noted at entrance into service or where clear and
unmistakable evidence rebuts a legal presumption of sound
condition at entrance for disorders not noted at entrance.
History provided by the veteran of the pre-service existence
of conditions recorded at the time of the entrance
examination does not, in itself, constitute a notation of a
preexisting condition.  38 C.F.R. � 3.304(b)(1) (2000);
Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v.
Brown, 7 Vet. App. 238, 246 (1995).

The veteran suffered a stroke (CVA) in 1986 with attendant
residuals, was diagnosed as having idiopathic hypertrophic
subaortic stenosis, an congenital disorder of myocardial
structure by Dr. R. G. R. in 1981, and was noted to have a
history of congestive heart failure by E. B. M., M.D., in
1987.   This satisfies the first element of the claims for
service connection for residuals of a stroke and a heart
disorder.  See Caluza, supra.  But there is no competent
medical evidence linking the veteran's current residuals of
his 1986 stroke or a heart disorder to service.  The veteran
contends that he was turned down for Officer Candidate School
because he had a heart attack or stroke before his discharge.
However, the service medical records are silent for
complaints or diagnosis of, or treatment for, a heart attack
or stroke.  The veteran was hospitalized in June 1955 in
Germany for hemorrhoids and underwent surgery for excision of
a rectal fistula.  During his 25-day stay, there was no
indication of a heart disorder or stroke.  A June 1955 chest
X-ray showed lungs and heart appeared normal.  A hospital
record dated June 28, 1955 noted "cardiac and respiratory
status good" and another dated July 1, 1955 showed "physical
status good."  His July 1956 separation examination report
noted that his heart, lungs and chest, and his vascular
system were normal.  In an October 5, 1956 statement signed
by the veteran, he certified that there had been no change in
his physical condition since his separation examination and
noted that he had four imbedded wisdom teeth and a broken
bridge, which should have been taken care of three months
earlier.  The veteran did not indicate that he received
medical treatment within the first year after discharge and
he did not file a service-connection claim until April 1994,
38 years after his discharge, even though he did file claims
for dental disorders immediately following his discharge.
The first private treatment record indicating a possible
heart or vascular disorder was a July 1969 laboratory report,
which indicated that the veteran should see an internist for
a possible heart murmur, nearly 13 years after discharge.

The Board notes that the veteran indicated that he had been
treated for the claimed disorders beginning in 1956 at VA
Medical Centers (VAMCs) and the case was remanded by the
Board to ascertain from the veteran specific information
regarding the claimed treatment.  The RO attempted to contact
the veteran by letter without response and telephone on
several occasions and were unsuccessful.  The RO also
contacted the VAMCs in Kansas City and Columbia, Missouri,
and Muskegon, Michigan for any medical information on
treatment for the veteran and all reported that they had no
records.

The statement of the veteran as to his belief that his
current vascular and heart disorders were incurred in or
aggravated in service is not competent evidence with regard
to the nexus issue.  See Grottveit v. Brown. 5 Vet. App.
91,92-93 (1993).  There is no evidence that the veteran has
the requisite medical expertise to enter a medical judgment
as to the etiology of his current disorders.  Espiritu v.
Derwinski, 2 Vet. App. 492 (1992) (holding that laypersons
are not competent to offer medical opinions).  Thus, his own
statements do not establish the required evidence needed, and
the claims must be denied.  The veteran's treating physician,
Dr. R. G. R. has indicated that the veteran's current
problems are congenital and did not link them to any incident
of active service.  To the extent that the evidence shows a
congenital disorder of myocardial structure in 1981 that may
have preexisted service, the Board notes that there is no
evidence of such on entrance, in service or in close
proximity thereto.  To the extent that the record on appeal
arguably contains clear and unmistakable evidence that rebuts
the legal presumption of sound condition at entrance, there
simply is no evidence of an increase in cardiovascular
disability in service sufficient to raise a presumption of
aggravation, and significantly, no medical evidence linking
any heart disorder that may have preexisted service to any
incident of the veteran's military service.  Therefore, in
the absence any medical evidence confirming that the veteran
suffered a stroke or incurred a heart disorder to a
compensable degree (10 percent) within one year following his
release from active duty or that a preexisting disorder was
aggravated therein, the claims must be denied.

The Board is cognizant of VCAA's mandate that VA shall
provide a medical examination or obtain a medical opinion
when necessary to decide the claim.  38 U.S.C.A. �
5103A(d)(1).  However, VA is not required to provide
assistance if no reasonable possibility exists that such
assistance would aid in substantiating the claim.
38 U.S.C.A. � 5103A(a)(2).  In this case, the fact that the
veteran has residuals of a stroke and a heart disorder is not
in dispute.  The central question is whether such residuals
resulted from a stroke or a heart disorder that was incurred
in service or manifest within one year of discharge from
service, or aggravated therein.  A physician who is requested
to review the record and offer an opinion on the contended
causal relationship would review the same evidence summarized
above, to include no complaints of, or treatment for, a
stroke or heart disorder, and a normal clinical evaluation of
the veteran's heart, lungs and chest, and his vascular system
at the time of his separation from service and relevant
abnormal clinical findings first reported nearly 13 years
after service.  In other words, there is no medical evidence
dated during or proximate to service for the physician to
examine or to cite in providing such an opinion.  This is
especially so when the veteran's treating physician has
indicated that his current disabilities are congenital and
the first evidence of a possible heart disorder was reported
in 1969.  Under these circumstances, it is the Board's
judgment that no reasonable possibility exists that such
assistance would aid in substantiating the claims.

Total Rating Based on Individual Unemployability (TDIU)

The veteran also claims that his service-connected
disability(ies) renders him unemployable.  The Board is
satisfied that all the facts relevant to this claim have been
properly and sufficiently developed.

In order to establish entitlement to TDIU due to service-
connected disabilities, there must be impairment so severe
that it is impossible for the average person to follow a
substantially gainful occupation.  See 38 U.S.C.A. � 1155
(West 1991); 38 C.F.R. �� 3.340, 3.341, 4.16 (2000).  In
reaching such a determination, the central inquiry is
"whether the veteran's service connected disabilities alone
are of sufficient severity to produce unemployability."
Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
Consideration may be given to the veteran's level of
education, special training, and previous work experience in
arriving at a conclusion, but not to his age or to the
impairment caused by nonservice-connected disabilities (such
as the veteran's residuals of CVA, idiopathic hypertrophic
aortic stenosis, congestive heart failure or chronic
bronchitis).  See 38 C.F.R. �� 3.341, 4.16, 4.19; Van Hoose
v. Brown, 4 Vet. App. 361 (1993).

VA regulations establish objective and subjective standards
for an award of TDIU.  When the veteran's schedular rating is
less than total (for a single or combination of
disabilities), a total rating may nonetheless be assigned
where the veteran has a single service-connected disability
that is rated as 60 percent disabling or more; or when there
are two or more disabilities, at least one disability is
rated at 40 percent or more, and any additional disabilities
result in a combined rating of 70 percent or more, and the
disabled person is unable to secure or follow a substantially
gainful occupation.  See 38 C.F.R. � 4.16(a).  A total
disability rating may also be assigned on an extra-schedular
basis, pursuant to the procedures set forth in 38 C.F.R.
� 4.16(b), for veterans who are unemployable by reason of
service-connected disabilities, but who fail to meet the
percentage standards set forth in 38 C.F.R.
� 4.16(a).

The veteran is service connected for only one disability,
hemorrhoids, at zero percent (noncompensable); and his
combined disability rating is zero percent.  He fails to meet
the percentage requirements set forth in 38 C.F.R. � 4.16(a)
for consideration of TDIU due to a single service-connected
disability.  However, the Board must consider whether he may
still be entitled to TDIU on an extra-schedular basis, under
38 C.F.R. � 4.16(b).

The Board finds no basis to award the veteran TDIU.  There is
no medical evidence to show that the veteran's hemorrhoids
are symptomatic or productive of any industrial impairment.
Significantly, there is no medical opinion of record that the
veteran's service-connected disability has interfered with
his employability to such a degree that he is unable to
secure and follow a substantially gainful occupation.  In
contrast, the evidence indicates that the veteran suffers
from significant nonservice-connected disorders, which may
not be considered in determining whether the veteran is
unemployable due to his service-connected disability.  These
nonservice-connected disorders include residuals of CVA,
idiopathic hypertrophic aortic stenosis, congestive heart
failure and chronic bronchitis.  The evidence does not show,
and the veteran has not asserted that his hemorrhoids are in
any way related to his industrial impairment.

The Board acknowledges that the veteran undoubtedly
experiences impairment in his ability to perform
substantially gainful employment due to his nonservice-
connected disabilities.  However, the Board emphasizes that
it must be shown that the veteran's service-connected
disability precludes all forms of substantially gainful
employment, consistent with his educational and vocational
history.  Such is not shown here by persuasive evidence.
Indeed, the veteran's hemorrhoids appear to be asymptomatic.
Various private medical provider statements indicate that the
veteran's nonservice-connected disabilities, particularly the
residuals of his 1986 CVA are the reason for his occupational
incapacity.  See statements submitted in support of his SSA
disability claim by Dr. E. B. M. dated January 1, 1998; J. B.
H., D.O.; B. H. dated in 1987; B. S. S., RN, dated August 18,
1987; speech pathologist T. E. H., M.A., CCC-SP, dated in
September 1987; and psychiatrist K. C. D., M.D., dated
September 16, 1987.  In short, there is simply no persuasive
evidence of record that supports the veteran's claim that he
is unemployable by virtue of his service-connected
hemorrhoids.  As such, the Board finds that the preponderance
of the evidence is against a finding that the veteran is
unemployable due to his service-connected disability.  The
Board has considered the applicability of the benefit-of-the-
doubt doctrine under 38 U.S.C.A. � 5107 (West Supp. 2001) in
connection with the veteran's claims for service connection
and for TDIU; however, as the preponderance of the evidence
is against the claims, that doctrine does not apply.  See
Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

ORDER

Entitlement to service connection for residuals of a stroke
is denied.

Entitlement to service connection for a heart disorder is
denied.

Entitlement to a total disability rating based on individual
unemployability due to a service-connected disability is
denied.

	S. L. KENNEDY
	Member, Board of Veterans' Appeals


judge_norm: L W TOBIN

condition: respiratory

text:
Citation Nr: 0126000
Decision Date: 11/07/01    Archive Date: 11/13/01

DOCKET NO.  00-01 833	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama

THE ISSUE

Whether new and material evidence has been submitted to
reopen a claim for service connection for a lung disability
including emphysema.

REPRESENTATION

Appellant represented by:	Alabama Department of Veterans
Affairs

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

D. M. Casula, Associate Counsel

INTRODUCTION

The veteran had active service from November 1990 to June
1991.

This matter comes before the Board of Veterans' Appeals
(Board) from a January 1999 RO rating decision which found
that new and material evidence had not been submitted to
reopen a claim for service connection for emphysema.  In
August 2001 the veteran testified at a Board videoconference
hearing.

FINDINGS OF FACT

1.  A November 1994 unappealed RO rating decision denied a
claim for service connection for emphysema.

2.  Evidence received since the November 1994 RO decision
includes evidence which is neither cumulative nor redundant
of evidence previously considered, and is so significant that
it must be considered in order to fairly decide the merits of
the claim for service connection for a lung disability.

CONCLUSION OF LAW

New and material evidence has been submitted since the final
November 1994 RO decision, and thus the claim for service
connection for a lung disability is reopened.  38 U.S.C.A. ��
5108, 7105 (West 1991 & Supp. 2001); 38 C.F.R. � 3.156
(2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran had service with the Army National Guard.
Service medical records from such service include an October
1982 enlistment examination which is negative for a lung
disorder.  On an associated medical history form, the veteran
reported he had been hospitalized at Russell Hospital for
treatment of pneumonia in November 1981, but he denied a
history of respiratory symptoms.  At a periodic Army National
Guard examination in March 1987, the lungs were normal on
clinical evaluation.  It was noted the veteran reported using
cigarettes, with a history of smoking a pack a day for 15
years.  On an associated medical history form, the veteran
reported he had been hospitalized at Russell Hospital for
several days for treatment of pneumonia 9 years ago (also
reported as being in 1976), and he denied a history of
respiratory symptoms.

From the Army National Guard, the veteran was ordered to
active duty in the Army in support of Operation Desert
Shield/Desert Storm during the Persian Gulf War.  He served
on such active duty from November 21, 1990 to June 6, 1991.
This included service in Southwest Asia from January 9, 1991
to May 11, 1991.  He performed duties of a vehicle mechanic
with a military police unit.

Service medical records related to this period of active duty
include a November 1990 medical history form on which the
veteran denied a history of respiratory symptoms.  On a DA
Form 4036-R (Medical and Dental preparation for Overseas
Movement) it was noted that the veteran met the medical
fitness standards, that he did not require medical care, and
that he could be assigned to an area where medical facilities
were limited or nonexistent.

A service medical record from February 6, 1991 (after the
veteran had arrived in Saudi Arabia) notes he complained of
tightness in the chest, wheezing, and difficulty breathing
for two week, which he first noted on the ocean ride from
Florida.  It was noted he had smoked one pack per day for 30
years and continued to smoke.  The assessment was chronic
obstructive pulmonary disease (COPD), complicated by smoking.
The veteran was admitted to a service hospital.  On admission
it was noted that he had mild exertional dyspnea and had been
deployed to Saudi Arabia on a slow ship that took 40 days to
arrive.  He had been there for several weeks and developed a
cough with some production of sputum, wheezing, and increased
shortness of breath, increasing symptoms.  The impressions
were severe emphysema and exacerbating COPD with bronchospasm
and bronchitis.

The veteran was subsequently evacuated by ambulance to
another hospital, and on February 8, 1991 he complained of
difficulty breathing with headache and productive cough for
four days.  It was noted that he had a history of COPD
symptoms approximately three years prior.  The diagnosis
included COPD with exacerbation.  In an undated medical
record it was noted that due to the COPD exacerbation, the
veteran would probably not be able to stay in the theater of
operations due to the dust and climate.  The veteran was
discharged back to duty on February 12, 1991

On an April 1991 medical history form for upcoming release
from active duty, the veteran indicated that he had a history
of shortness of breath and chronic cough, that at the
evacuation hospital he had been told he had the beginnings of
emphysema, and that he was currently using an oral spray.  On
the April 1991 examination for service separation, the lungs
were reported to be normal on clinical evaluation, although
the examination form lists a defect of emphysema.

A service medical record from June 5, 1991 shows the veteran
was seen primarily for an ear problem, although it was also
noted that he was a smoker with COPD changes on auscultation.

The veteran was released from active duty in the Army on June
6, 1991.  He then returned to Army National Guard status.

In September 1994, the veteran filed a claim for service
connection for a lung condition, which he variously described
as emphysema, bronchitis, and shortness of breath.  He
reported treatment in service and none since.

Based on the above summarized evidence, the RO, in October
1994 and November 1994 decisions (the latter one considered
additional service medical records) the RO denied service
connection for emphysema, holding that the condition pre-
existed service without aggravation therein.  The veteran did
not appeal this determination.  Evidence received since the
November 1994 RO decision is summarized below.

In an April 1997 private doctor's statement it was noted that
the veteran had COPD.

Treatment records from the Birmingham VA Medical Center
(VAMC) show that in November 1997 the veteran underwent a
Persian Gulf examination and reported that he was not
currently smoking cigarettes; he indicated he had smoked on
average two packs per day for 30 years but quit the habit in
August 1991.  He related that his breathing problems started
in service in February 1991 when he was stationed in
Southwest Asia.  The veteran indicated that 3 years ago his
private doctor put him on medication for the breathing
problem, and that he had had 2 emergency room visits for the
problem.  He responded "yes" to the question of whether he
believed he was exposed to smoke from oil fires, smoke or
fumes from tent heaters, cigarette smoke from others, diesel
or other petrochemical fires, and burning trash/feces.  A
chest X-ray showed pulmonary emphysema, and no acute lung
disease.  The final assessment was that the veteran had COPD.

A VA outpatient record from January 1998 notes the assessment
was COPD, possibly smoking related or aggravated by Persian
Gulf War service.

In March 1998 the veteran filed an application to reopen a
claim for service connection for emphysema.

Other VA outpatient records from 1998 note COPD/emphysema.

In a January 1999 VA outpatient record, it was noted that the
veteran complained of increasing shortness of breath with
effort, and the assessment was severe COPD, possibly
worsened/aggravated by Persian Gulf service.

In a January 2000 statement, Larry T. Rayfield, the Readiness
NCO for the veteran's Army National Guard Unit, reported that
the veteran was assigned to his unit prior to, during, and
after Operation Desert Storm, and that prior to deployment to
the Southwest Asia Theater of Operations, the veteran was in
good health, had not shown any prior health problems, and was
cleared for mobilization and deployment.  Mr. Rayfield
recounted that the veteran was deployed to Saudi Arabia by
ship in 1991.  It was noted that while overseas the veteran
performed various duties, including as part of a security
operation in Kuwait for part of March 1991, during which time
the unit was in close proximity to the oil well fires which
created extreme conditions with smoke and unburned oil in the
air.  After redeployment to the United States, the veteran
reportedly showed some degradation in his abilities to
perform strenuous tasks, and was unable to participate in the
Army Physical Fitness test.  It was noted that the veteran
elected to retire from service and had been placed in retired
reserve status.  Mr. Rayfield opined that the adverse
conditions while stationed overseas, particularly oil well
fires, caused or aggravated the veteran's lung problems.

In August 2001 the veteran testified at a Board
videoconference hearing.  He said that he was first diagnosed
with emphysema in February 1991 by a military doctor, and
thereafter, during and after service, the condition worsened.
He said that prior to being called to active duty he had
bronchitis and shortness of breath on occasion, but he was
given antibiotics and it would clear up.  He testified that
he was not diagnosed with emphysema prior to service, but had
been to the doctor for severe bronchitis.  He testified that
once he got to Saudi Arabia he was exposed to smoke from
burning oil wells, dust storms, and sand, and he continued to
have more and more problems with breathing.  He related that
after he returned home from his service in the Persian Gulf
War, he first went to Tuskegee VA Hospital in 1993, and then
started going to the Birmingham VAMC, where he continued to
receive treatment.  He said that his condition had
continually gotten worse since he came back from Saudi
Arabia, and that he could not pass a physical fitness test
with the National Guard.  He reported that he was no longer
in the National Guard, and had to retire due to his breathing
problems and his inability to pass the physical fitness test.

Analysis

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

A preexisting disease or injury will be considered to have
been aggravated during service when there is an increase in
disability during service, unless there is a specific finding
that the increase in disability is due to the natural
progression of the disease.  Clear and unmistakable evidence
(obvious or manifest) is required to rebut the presumption of
aggravation where the pre-service disability underwent an
increase in severity during wartime service.  This includes
medical facts and principles which may be considered to
determine whether the increase is due to the natural progress
of the condition.  Aggravation may not be conceded where the
disability underwent no increase in severity during service
on the basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during, and
subsequent to service.  38 U.S.C.A. � 1153; 38 C.F.R. �
3.306.

In a November 1994 decision, the RO denied service connection
for emphysema, finding that the condition preexisted service
and was not aggravated during service.  The veteran did not
appeal the decision, and it became final.  This claim may be
reopened if new and material evidence is submitted.  38
U.S.C.A. �� 5108, 7105; Manio v. Derwinski, 1 Vet.App. 140
(1991).

"New and material evidence" means evidence not previously
submitted to VA decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which, by
itself or in connection with evidence previously assembled,
is so significant that it must be considered in order to
fairly decide the merits of the claim.  38 C.F.R. � 3.156(a);
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

When the claim was denied by the RO in 1994, the medical
evidence on file consisted of service medical records.  The
available service medical records from when the veteran was
in the National Guard, before his active duty, note a past
history of hospialization for pneumonia, but there were no
findings of chronic lung disease.  It does not appear that
the veteran received a complete medical examination when he
entered active duty in November 1990, although he was
medically cleared for duty, and on a medical history form he
denied lung symptoms.  Service medical records show he was
diagnosed with emphysema during service in February 1991, and
he then reported a history of COPD symptoms approximately
three years prior to service.  He was treated in February
1991 for an exacerbation of COPD.  Continuing service medical
records, up to the veteran's June 1991 release from active
duty, note COPD and emphysema.

Medical evidence submitted since the 1994 RO decision
includes VA and private medical records from 1994 to 1999,
indicating the veteran was treated for a lung disorder,
generally diagnosed as COPD.  Some of these medical records
contain information suggesting that the veteran's lung
problem may have begun during or was worsened by his active
duty.  Also submitted was a statement from a National Guard
official, noting that the veteran had no significant health
problems before his active duty.  The veteran has also
provided hearing testimony in which he asserted that while he
may have had episodes of bronchitis before service, emphysema
first was diagnosed in service.

The Board finds that some of the additional evidence
submitted since the 1994 RO decision is new, in that it is
neither cumulative nor redundant of previously considered
evidence.  Some of this new evidence raises significant
questions as to whether a chronic lung condition pre-existed
service, and if it did, whether it was aggravated by service.
Such evidence is material, since it is so significant that it
must be considered in order to fairly decide the merits of
the claim.  38 C.F.R. � 3.156.

As new and material evidence has been submitted since the
1994 RO decision, the claim for service connection for a lung
disability has been reopened.  This does not mean that
service connection is granted; rather, the reopened claim for
service connection will have to be further reviewed on the
merits, following development of the evidence as set forth in
the below remand.

ORDER

The claim for service connection for a lung disability is
reopened and, to that extent, the appeal is granted.

REMAND

The Board finds that there is a further VA duty to assist the
veteran in developing evidence on the reopened claim for
service connection for a lung disability including emphysema
(also diagnosed as COPD).  38 U.S.C.A. � 5103A (West Supp.
2001); 66 Fed.Reg. 45,620, 45,630 (Aug. 29, 2001) (to be
codified as amended at 38 C.F.R. � 3.159).

The file currently contains a few National Guard medical
records from before the veteran's 1990-1991 active duty, and
no such records from after his active duty (although the
veteran returned to and eventually retired from the National
Guard/Reserve).  An effort should be made to obtain any
additional service medical records from National Guard
service, from before and after active duty, as they may be
relevant to the claim for service connection.

Information on file relates that before active duty the
veteran reportedly was hospitalized for pneumonia, and he
also reports that before service he was treated on occasion
by his private doctor for bronchitis.  No records of pre-
service treatment have been obtained, and they should be.
With regard to post-service medical records, while a 1997
private doctor's statement (noting COPD) has been submitted,
the file also refers to other private medical treatment.  For
example, a 1997 VA medical record notes a history of the
veteran being prescribed medication by his private doctor
three years earlier, and of having had two emergency room
visits.  All private medical records of post-service
treatment should be obtained.  As to post-service VA medical
treatment for a lung condition, the file contains 1997-1999
records from the Birmingham VAMC.  However, the veteran has
also reported that he was treated at the Tuskegee VAMC in
1993.  All additional post-service VA treatment records
should be secured.

Under the circumstances of this case, a VA examination with
opinion on the nature and etiology of the veteran's lung
condition is also warranted.

Accordingly, the case is remanded for the following:

1.  The RO should obtain, from the
appropriate office of the service
department, complete service medical
records from the veteran's National Guard
service, from both before and after his
1990-1991 active duty.  This includes all
periodic examinations, any treatment
records, and any retirement examination.

2.  The RO should have the veteran
identify (names, addresses, dates) all
health care providers (private, VA,
other) who have ever examined or treated
him (both before and after his 1990-1991
active duty) for any type of
lung/breathing problem.  After securing
the necessary releases, the RO should
obtain copies of any previously
unobtained medical records.  This should
include the records referenced earlier in
this remand.

3.  After the above development is
completed, the veteran should undergo a
VA respiratory examination to determine
the nature and etiology of his current
lung disorder.  The claims folder should
be provided to and reviewed by the
examiner in conjunction with the
examination, and the examination report
should note that such has been
accomplished.  Based on examination
findings, historical records, and medical
principles, the VA examiner should
provide a medical opinion, with full
rationale, as to the date of onset and
etiology of the current lung disorder,
and, if the condition pre-existed
service, whether it worsened during
service beyond the natural progress of
the disease.

4.  Thereafter, the RO should review, on
a de novo basis, the claim for service
connection for a lung disability.  If the
claim is denied, the veteran and his
representative should be provided a
supplemental statement of the case, and
given an opportunity to respond, before
the case is returned to the Board.

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

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


judge_norm: BETTINA S CALLAWAY

condition: back

text:
Citation Nr: 0127000
Decision Date: 12/05/01    Archive Date: 12/11/01

DOCKET NO.  99-24 344	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama

THE ISSUE

Entitlement to an initial disability evaluation in excess of
20 percent for arthralgia of the thoracic spine.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Christopher J. Gearin, Counsel

INTRODUCTION

The veteran had active service from December 1978 to December
1998.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1999 decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama, which granted service connection for arthralgia of
the thoracic spine, effective January 1, 1999, and assigned a
noncompensable evaluation.  While the veteran's appeal was
pending, the RO increased the evaluation to 10 percent, also
effective January 1, 1999.

FINDINGS OF FACT

1.  The veteran's initial rating does not warrant the
application of staged ratings.

2.  The veteran's arthralgia of the thoracic spine is
manifested by no more than a slight decreased range of motion
and functional impairment with complaints of pain,
fatigability, and weakness.

CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 10
percent for arthralgia of the thoracic spine have not been
met.  38 U.S.C.A. �� 1155, 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 1991 & Supp. 2001); 38 C.F.R. � 3.102, 4.7,
4.40, 4.45, 4.71a, Diagnostic Code 5291.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board notes that there has been a significant
change in the law during the pendency of this appeal.  On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000, 38 U.S.C.A. �� 1155, 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 1991 & Supp. 2001)
(VCAA).  Among other things, this law eliminates the concept
of a well-grounded claim, redefines the obligations of the VA
with respect to the duty to assist, and supersedes the
decision of the United States Court of Appeals for Veterans
Claims (Court) in Morton v. West, 112 Vet. App. 477 (1999),
withdrawn sub nom.  Morton v. Gober, No. 96-1517 (U.S. Vet.
App. Nov. 6, 2000) (per curiam order), which had held that
the VA cannot assist in the development of a claim that is
not well grounded.  This change in the law is applicable to
all claims filed on or after the date of enactment of the
VCAA, or filed before the date of enactment and not yet final
as of that date.  38 U.S.C.A. � 5103A; see Karnas v.
Derwinski, 1 Vet. App. 308 (1991).  Regulations implementing
this law were also recently promulgated.  66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a).

Among the changes in the law brought about by the VCAA is a
heightened duty to assist the veteran in developing evidence
in support of a claim.  Such assistance includes identifying
and obtaining evidence relevant to the claim, and affording
the veteran a VA rating examination unless no reasonable
possibility exists that such assistance would aid in
substantiating the veteran's claim.  See 38 U.S.C.A. � 5103A;
66 Fed. Reg. 45,620 (to be codified as amended at 38 C.F.R �
3.102).

The Board has reviewed the veteran's claim in light of the
VCAA and concludes that while the RO did not necessarily
fully comply with the new notification requirements at the
time the veteran's claim was filed, a substantial body of lay
and medical evidence was developed with respect to the
veteran's claim.  The RO's statement and supplemental
statement of the case clarified what evidence would be
required to establish evaluations for the veteran's service-
connected disorder in excess of that already assigned and
provided reasons as to why the RO found that a compensable
rating was not warranted.  The veteran responded to the RO's
communications with additional evidence and argument, curing
(or rendering harmless) any earlier notification omissions
that the RO may have made.  See Bernard v. Brown, 4 Vet. App.
384, 393-94 (1993); VA O.G.C. Prec. 16-92, para. 16 (57 Fed.
Reg. 49,747 (1992)) ("if the appellant has raised an argument
or asserted the applicability of a law or [Court] analysis,
it is unlikely that the appellant could be prejudiced if the
Board proceeds to decision on the matter raised").

The VCAA also requires VA to provide a medical examination
when such an examination is necessary to make a decision on
the claim.  See 38 U.S.C.A. � 5103A; 66 Fed. Reg. 45,620 (to
be codified as amended at 38 C.F.R � 3.102).  This obligation
was satisfied by the VA examination requested and
accomplished in connection with this claim.  The Board is
satisfied that all relevant facts have been properly and
sufficiently developed, and that the veteran will not be
prejudiced by proceeding to a decision on the basis of the
evidence currently of record.

The veteran asserts that an initial disability rating in
excess of 10 percent is warranted for arthralgia of the
thoracic spine.  In such cases, VA has a duty to assist the
veteran in developing facts that are pertinent to this claim.
See generally, VCAA.  As noted above, the Board finds that
all relevant facts have been properly developed, and that all
relevant evidence necessary for an equitable resolution of
the issue on appeal has been identified and obtained by the
RO.  The evidence includes the veteran's service medical
records, reports of VA rating examinations and outpatient
treatment records, private medical records, and personal
statements and evidence submitted by the veteran in support
of her claim.  The Board is not aware of any additional
relevant evidence that is available in connection with this
appeal.  Therefore, no further assistance to the veteran
regarding the development of evidence is required.  See VCAA.

The veteran is appealing the disability rating assigned
following an award of service connection.  Shipwash v. Brown,
8 Vet. App. 218, 224 (1995).  In such a case as this it is
not the present level of disability which is of primary
importance, but rather the entire period is to be considered
to ensure that consideration is given to the possibility of
staged ratings; that is, separate ratings for separate
periods of time based on the facts found.  Fenderson v. West,
12 Vet. App. 119 (1999).

Disability evaluations are determined by the application of a
schedule of ratings that is based on the average impairment
of earning capacity.  38 U.S.C.A. � 1155.  Separate
diagnostic codes identify the various disabilities.
38 C.F.R. Part 4 (2000).

In accordance with 38 C.F.R. �� 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records pertaining to the service-connected
disability at issue.  The Board has found nothing in the
historical record which would lead it to conclude that the
current evidence of record is not adequate for rating
purposes, nor has the Board found any of the historical
evidence in this case to be of sufficient significance to
warrant a specific discussion herein.

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

Also, evaluation of the same disability under various
diagnoses is to be avoided.  38 C.F.R. � 4.14.  For rating
purposes, the evaluation of the same disability under various
diagnoses is to be avoided.

Where functional loss is alleged due to pain on motion, the
provisions of 38 C.F.R. �� 4.40 and 4.45 must also be
considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-8 (1995).
Within this context, a finding of functional loss due to pain
must be supported by adequate pathology and evidenced by the
visible behavior of the claimant.  Johnston v. Brown, 10 Vet.
App. 80, 85 (1997).

The appellant's thoracic spine disability is evaluated as 10
percent disabling under the provisions of 38 C.F.R. � 4.71a,
Diagnostic Code 5291.  Under this provision, both "moderate"
and "severe" limitation of motion of the dorsal spine are
assigned a 10 percent disability rating - the maximum
schedular provision.  38 C.F.R. � 4.71a, Diagnostic Code
5291.  However, the appellant's submissions raise the issue
of entitlement to ratings under alternative diagnostic codes,
and the Board must ascertain whether any other appropriately
applied criteria would avail the appellant of a higher
disability rating.  See Butts v. Brown, 5 Vet. App. 532, 538
(1993). Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Based on a thorough review of the record, the Board finds
that a rating in excess of 10 percent is not warranted at any
time during the pendency of the appeal for the following
reasons.  First, the service medical records show that
although the veteran was treated for thoracic spine pain, x-
ray studies are negative for abnormality.  There is no
evidence of arthritis.

Second, the preponderance of the post-service medical
evidence is against a rating for in excess of 10 percent for
any orthopedic impairment of the thoracic spine.  For
example, according to a February 1999 VA examination report,
the veteran complained of pain and stiffness of the thoracic
spine.  She also indicated that she took various pain
medications for relief.  Physical examination revealed that
her thoracic spine motion stopped when the pain began.  The
examiner noted that there was no objective evidence of
painful motion, spasm, weakness or tenderness; there were no
postural abnormalities; and the musculature of the back was
good; there were no neurological abnormalities.  The examiner
diagnosed arthralgia of the thoracic spine with slight loss
of function due to pain.  Thus, there is no evidence of
greater than moderate limitation of motion of the thoracic
spine.

According to a February 2000 VA examination report the
veteran claimed to have pain, weakness, stiffness, swelling,
instability, giving away, locking, fatigability, and lack of
endurance.  Although it is clear that not all of these
complaints related to the thoracic spine, such as locking,
giving way and instability, she did explain that any
pressure, to include clothing, on her back caused pain.  She
continued to take various pain relief medications and she
also underwent physical therapy.  She reported that she wore
an upper back brace, although she did not wear it to the
examination.

Physical examination revealed that motion stopped when pain
began, although there was no evidence of painful motion,
spasm, weakness and tenderness.  Deep tendon reflexes of the
upper extremities were active and equal.  The range of motion
of the thoracic spine was flexion to the right to 27 degrees,
flexion to the left to 22 degrees, forward flexion to 102
degrees, and backward extension to 22 degrees.  The examiner
diagnosed arthralgia of the thoracic spine with questionable
loss of function due to pain.  The x-ray study was normal.
Thus, in light of the examiner's findings and diagnosis of
"questionable loss of function due to pain, although the
range of motion studies indicate slight limitation of motion,
the Board finds that the preponderance of the evidence shows
that the veteran's thoracic spine disability is no greater
than moderate, as reflected in the current evaluation.  38
C.F.R. �� 4.40, 4.45.

Additionally, the clinical evidence does not show that the
service-connected arthralgia of the thoracic spine presents
such an unusual or exceptional disability picture with
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards, as is
required for an extraschedular evaluation under 38 C.F.R. �
3.321(b)(1) (2001).  For example, the veteran does not
contend, nor does the evidence show, that she is unable to
work as a result of her arthralgia of the thoracic spine.
Furthermore, there is no evidence that she has been
hospitalized after service for this condition.  Therefore, an
extraschedular evaluation is not warranted.  38 C.F.R.
� 3.321(b)(1).

As the preponderance of the evidence is against a compensable
rating under Diagnostic Code 5291, the benefit of the doubt
doctrine is not for application in this regard.  38 C.F.R.
� 3.102.

	(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to an initial disability evaluation in excess of
10 percent for arthralgia of the thoracic spine is denied.

	BETTINA S. CALLAWAY
	Member, Board of Veterans' Appeals