judge_norm: IRIS S SHERMAN

condition: back

condition: knee

condition: neck

text:
Citation Nr: 0304000
Decision Date: 03/07/03    Archive Date: 03/18/03

DOCKET NO.  02-03 394A	)	DATE
	)
	)

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

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen a claim of service connection for a back disorder.

2.  Whether new and material evidence has been submitted to
reopen a claim of service connection for headaches.

3.  Whether new and material evidence has been submitted to
reopen a claim of service connection for a left knee
disorder.

4.  Whether new and material evidence has been submitted to
reopen a claim of service connection for neck disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Robert A. Leaf, Counsel

INTRODUCTION

The veteran had active service from September 1972 to October
1975.

This appeal to the Board of Veterans' Appeals (Board) arises
from a September 2000 rating decision of a regional office
(RO) of the Department of Veterans Affairs (VA).  The RO
determined that new and material evidence had not been
submitted to reopen claims of service connection for back,
neck and left knee disorders and for headaches.

FINDINGS OF FACT

1.  The RO last denied the claim of service connection for a
left knee disorder in October 1980.

2.  Evidence received subsequent to the October 1980 decision
is not so significant that it must be considered in order to
fairly decide the merits of the claim of service connection
for a left knee disorder.

3.  The RO last denied claims of service connection for back
and neck disorders and headaches in February 1993.

4.  Evidence received subsequent to the February 1993
decision is not so significant that it must be considered in
order to fairly decide the merits of the claim of service
connection for back disorder and headaches.

5.  Evidence received subsequent to the February 1993
decision is not so significant that it must be considered in
order to fairly decide the merits of the claim of service
connection for a neck disorder.

CONCLUSIONS OF LAW

1.  The October 1980 decision of the RO denying service
connection for a left knee disorder is final.  38 U.S.C.
� 4005(c) (1976); 38 C.F.R. �� 3.104, 19.118, 19.153 (1980).

2.  New and material evidence has not been submitted to
reopen the claim of service connection for a left knee
disorder.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106,
5107, 5108, 5126 (West 1991 & Supp. 2002);
38 C.F.R. �� 3.102, 3.156, 3.159, 3.326 (2002).

3.  The February 1993 decision of the RO denying service
connection for back and neck disorders and headaches is
final.  38 U.S.C.A. � 7105(c) (West 1991)); 38 C.F.R.
�� 3.104, 20.302, 20.1103 (1992).

4.  New and material evidence has not been submitted to
reopen claims of service connection for a back disorder and
headaches.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106,
5107, 5108, 5126 (West 1991 & Supp. 2002);
38 C.F.R. �� 3.102, 3.156, 3.159, 3.326 (2002).

5.  New and material evidence has not been submitted to
reopen a claim of service connection for a neck disorder.
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5108,
5126 (West 1991 & Supp. 2002); 38 C.F.R. �� 3.102, 3.156,
3.159, 3.326 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Background

When the veteran was examined in August 1972 for service
entrance, he indicated that he had frequent or severe
headaches.  No neurologic deficits were noted on examination.
The examiner's summary of medical history reflects that the
veteran had occasional headaches.  No back, neck or knee
conditions were complained of or noted at service entrance.

An examination was performed in September 1975 for service
separation.  The veteran indicated frequent or severe
headache, recurrent back pain, and "trick" or locked knee.
The neck, spine, lower extremities and neurologic status were
evaluated as normal.  Service medical records make no
reference to injuries to the back, neck, left knee or head.

A VA orthopedic examination was performed in January 1976.
The veteran reported an inservice injury to the left arm.  He
made no reference to injuries during service to the back,
neck, or left knee.  On VA neurological examination in
January 1976, no clinical neurological features were
demonstrable.  A VA psychiatric examination was performed in
January 1976.  The veteran indicated that he began

experiencing blackouts in November or December 1973.  He used
to hit his head during blackouts.  Headaches had begun in
June or July 1974.  The blackouts and headaches persisted.
The diagnosis was neurasthenic neurosis.

The veteran was evaluated at a VA outpatient facility in May
1977.  He reported continuous frontal headaches.  He was
hospitalized by VA from July to August 1977.  From the
history and in view of his complaints of headaches and sudden
blackout spells, a neurological workup was started and a
brain scan was ordered which was normal.  An abnormal EEG
tracing was obtained, and a sleep EEG with nasopharyngeal
leads was ordered.  However, the veteran then insisted on
discharge from the hospital.  The diagnoses were explosive
personality and possible seizure-type disorder.

The RO entered a decision in October 1980, which in part,
denied service connection for residuals of an injury to the
left knee.  It was determined that service medical records
were negative for the claimed disability and that there was
no current medical evidence in support of the claim.  The
veteran was subsequently informed of the RO's determination
by letter dated in October 1980.  He did not appeal.

The RO entered a decision in February 1993 which denied
service connection for a back disorder, neck disorder and
headaches.  It was determined that service medical records
were negative for the claimed disabilities and that there was
no evidence that these conditions were related to service-
connected disabilities.  The veteran was subsequently
informed of the RO's determination by letter dated in
February 1993.  He did not appeal.

An application to reopen a claim of service connection for
the disabilities which are the subjects of this appeal was
received in October 1999.  The veteran referred to injuries
to the back, neck and head occurring during service from 1973
to 1975.

Marion Pierce, in a copy of a notarized statement, dated in
July 2000, indicated that he had been in military service
from 1973 to 1975.  During that period, he attended boxing
matches in which the veteran participated as a boxer.  He
also attended football games in which the veteran
participated.

VA medical records, dated from 1992 to 2000, reflect
treatment primarily for conditions which are not the subjects
of this appeal.  Additionally, there were complaints of
chronic low back pain.  In July 1999, the clinical history
indicated low back pain with onset three years before.
Imaging of the lumbosacral spine showed intervertebral disc
space narrowing; otherwise, no significant degenerative
changes were seen.  In February 2000, the clinical history
indicated a left shoulder injury over 20 years before, with
progressive radiculopathy in the past few years from the
cervical region to the mid-lower left arm.  Imaging of the
cervical spine showed marked degenerative changes with loss
of disc space height and osteophytes.

A VA examination of muscles was performed in April 2001.  The
veteran related that he had developed back problems after a
football injury in 1973.  A few months thereafter, also
during 1973, he sustained a neck injury, again while playing
football.  He also noted that he had experienced a numbness
at the occiput for the past 20 years and, in the past five to
six years, he had begun to get headaches.  The assessments
were severe cervical degenerative disc disease-the onset of
symptoms reportedly having occurred following an injury in
service; degenerative disc disease of the lumbosacral spine
with chronic low back pain; and headaches-likely tension-
type, of recent onset.

A VA orthopedic examination was performed in April 2001.  The
examiner reported that the medical history was obtained from
the veteran.  The veteran related that he had sustained
injury to the left knee in 1973.  He also indicated that

he had sustained a neck and back injury at the same time.
The diagnoses were degenerative joint disease of the cervical
and lumbar spine; status post injury of the left knee.

II.  Analysis

On November 9, 2000, the President approved the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096, which made several amendments to the law
governing VA claims.  Among other things, this law eliminates
the concept of a well-grounded claim and redefines the
obligations of VA with respect to its duty-to-assist
obligation.  It revised section 5103 to impose on VA, upon
receipt of a complete or substantially complete application,
a duty to notify the claimant of any information, and any
medical or lay evidence, not already submitted that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a)
(West Supp. 2001).  The VCAA also provides that VA shall make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate his claim, and provide a medical
examination when such an examination is necessary to make a
decision on the claim.  38 U.S.C.A. � 5103A (a)(1), (d) (West
Supp. 2001).  Implementing regulations are now codified in
the Code of Federal Regulations, including
38 C.F.R. �� 3.102, 3.159 and 3.326.

As the appellant's claims were pending when the new Act and
regulations pertaining to the VA's duty to assist were
revised, he is entitled to the version of the applicable
criteria most favorable to him.  Karnas v. Derwinski, 1 Vet.
App. 308 (1991).  The Board has considered both the old law
and regulations pertaining to the VA's duty to assist, and
the VCAA and the revised regulations and finds that the VCAA
and the revised regulations are more favorable to the
appellant as these expand the duty to assist.  Moreover, in
Janssen v. Principi, 15 Vet. App. 370 (2001), the Court noted
that the VA's General Counsel had determined that the

VCAA is more favorable to claimants than the law in effect
prior to its enactment.  See VAOPGCPREC 11-2000 (Nov. 27,
2000).  Therefore, VCAA and the revised regulations will be
applied in this case.  Karnas, supra.

By the April 2002 statement of the case provided the
appellant, the RO discussed the pertinent evidence, provided
the laws and regulations governing the claim, and essentially
notified the appellant of evidence needed to prevail on the
claims.  Also, in a letter dated in March 2001, the RO
specifically informed the veteran [of the VCAA and its
requirements and of what information he needed to provide in
the event that there were outstanding private treatment
records that VA needed to retrieve.  Further, he was advised
that the RO would obtain VA medical records identified by the
veteran.  Accordingly, the statutory and regulatory
requirement that VA notify a claimant as to what evidence, if
any, will be obtained by the claimant and what evidence, if
any, will be retrieved by VA, has been met.  See Quartuccio
v. Principi, 16 Vet App. 183 (2002) (addressing the duties
imposed by 38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159).

Pertinent postservice medical records have been associated
with the record.  Furthermore, the appellant declined a
personal hearing he had been offered.  In this regard, he was
scheduled to attend a hearing before the Board in October
2002, but failed to report for such hearing.  Significantly,
he has not identified any additional existing evidence that
is necessary for a fair adjudication of his claims that has
not been obtained.

There is no indication that additional evidence exists and
can be obtained on the issues here in question.  Adjudication
of this appeal, without referral to the RO for further
consideration under the new law and regulations, poses no
risk of prejudice to the appellant.  See, e.g., Bernard v.
Brown, 4 Vet. App. 384 (1993).

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110 (West 1991 & Supp.

2002).  Continuity of symptomatology is required where a
condition noted during service is not shown to be chronic.
When the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim.  38 C.F.R. � 3.303(b) (2002).
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) (2002).

An unappealed rating decision of the RO is final.  However, a
claim may be reopened if new and material evidence is
submitted.  38 U.S.C.A. � 5108 (West 1991).  New and material
evidence means evidence not previously submitted which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant and,
which by itself, or in connection with the evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. � 3.156(a) (2002).  An amendment to this regulation
is not applicable as it is only effective for claims filed on
or after August 29, 2001.  38 C.F.R. � 3.156(a) (2002).

For the purpose of determining whether new and material
evidence has been submitted, the credibility of the evidence
is to be presumed.  Justus v. Principi, 3 Vet. App. 510
(1992).  Moreover, the evidence to be considered is that
added to the record since the last final denial on any basis.
Evans v. Brown, 9 Vet. App. 273 (1996).

A.  New and Material Evidence to Reopen Claims of Service
Connection for a Back Disorder and Headaches

The claims of service connection for a back disorder and
headaches were last considered by the RO in February 1993.
Using these guidelines mentioned above, the Board's analysis
of the evidence submitted for the purposes of the reopening
the veteran's current claims must include a review of all of
the evidence submitted since the February 1993 RO rating
action.  The Board will, however, first review the evidence
that was before the RO in February 1993 when the veteran's
claims were last considered.

The evidence considered in connection with the RO's February
1993 rating decision denying service connection for a back
disorder demonstrated no inservice injuries of the back, and
there were no objective findings of back pathology, despite
the veteran's report of back symptoms at service separation.
Postservice medical evidence of record through February 1993
revealed no back disorders.

Evidence added to the record since the RO's February 1993
rating decision includes VA medical records demonstrating the
veteran now has degenerative changes of the lumbosacral
spine.  This evidence is new in that it first objectively
confirms the presence of a back disorder.  However, it is not
material since it does not contain medical opinion linking
the current back disorder to military service.

Also added to the record since the RO's February 1993 rating
decision were the veteran's statements in which he first
attributed a back disorder to an inservice sports injury.
His statements are new as there is no indication from prior
statements as to a traumatic basis in service for the
veteran's current back disorder.  Also added to the claims
file was a statement from a fellow serviceman indicating that
the veteran boxed and played football during service.  This
statement is also new as it was not previously of record and
serves to corroborate the veteran's statement that he boxed
and played football during service.

In any event, the veteran's statements relating his current
back disorder to inservice trauma amount to an opinion about
a matter of medical diagnosis and causation.  The veteran is
competent to state that he hurt his back while engaged in
sports during service, but he is not competent to relate
current degenerative changes of the lumbosacral spine to any
incident of military service.  As a lay person, he is not
competent to offer a medical opinion regarding the diagnosis
or etiology of a disorder.  Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).  Moreover, lay assertions of medical
causation cannot serve as the predicate to reopen a claim for
compensation benefits.  Moray v. Brown, 5 Vet. App. 211
(1993).

The evidence considered in connection with the RO's February
1993 rating decision denying service connection for headaches
indicated the veteran's complaints of headaches when examined
for entrance and separation from service.  The medical
evidence demonstrated no inservice injuries of the head, and
examiners found no neurological deficits in connection with
reported headaches.

The medical evidence of record through February 1993 revealed
that the veteran reportedly experienced headaches in
postservice years, and such headaches were potentially
associated with a possible seizure disorder or with a
psychiatric disorder.  To the extent that headaches are
attributable to a psychiatric disorder, it should be noted
that service connection has been granted for a psychiatric
disorder classified as major depression.  Service connection
is not in effect for a seizure disorder.

Evidence added to the record since the RO's February 1993
rating decision includes the veteran's statements that he has
headaches which began in service and which may be related to
trauma.  This evidence is essentially cumulative of
statements which were before the RO when it entered its
adverse determination.  Cumulative evidence is not new
evidence.

Also associated with the record since the RO's February 1993
rating decision are VA medical records demonstrating that the
veteran complains of headaches.  His headaches are identified
as tension-type headaches.  This evidence is new in that it
first objectively confirms the presence of a type of headache
not associated with any potential seizure disorder or with
the veteran's service-connected neurasthenic neurosis.
However, it is not material since it does not contain medical
opinion linking the current headache disorder to military
service.  In this regard, an examiner who evaluated the
veteran more than two decades after the veteran completed
service, specifically noted that the veteran's tension-type
headaches were of recent onset.  The totality of the evidence
demonstrates that any headaches complained of during service
were an acute and transitory phenomenon, which resolved
without residual disability and which is unrelated to
tension-type headaches shown to be present in recent years.

For reasons discussed above, the Board finds that new and
material has not been submitted to reopen the claims of
service connection for a back disorder or headaches.
Accordingly, the application to reopen claim of service
connection for a back disorder and headaches must be denied.

B.  New and Material Evidence to Reopen Claims of Service
Connection for a Neck Disorder and a Left Knee Disorder

The claim of service connection for a left knee disorder was
last considered by the RO in October 1980, while the claim of
service connection for a neck disorder was last considered by
the RO in February 1993.  Evidence added to the record since
the RO's October 1980 and February 1993 rating decision
includes VA medical records demonstrating the veteran may now
have a left knee disability, as well as that he now has
degenerative changes of the cervical spine.  This evidence is
new in that it first objectively confirms the presence of
left knee and neck disorders.  However, the evidence is not
material.  As to the neck disability, the examiner indicated
that the onset of symptoms "reportedly" occurred following
an injury in service.  It is clear that there was no
independent evaluation by the examiner as to the relationship
between the current disability and military service.  The
examiner was merely reciting the veteran's medical history.
As to the knee disability, the examiner specifically noted
that the medical history was obtained from the veteran.  The
examiner related merely that the veteran reported a left knee
injury in 1973.  The examiner then diagnosed status post
injury of the left knee.  There was no independent review of
the medical evidence, and the recitation as to the date of
onset of the knee disability was based solely on the
veteran's history.  In short, the additional evidence
submitted lacks the probity necessary to make it material
evidence.  According, the Board finds that the additional
evidence is not new and material, and the veteran's claims of
service connection for left knee and neck disorders are not
reopened.

As the claim is not being reopened, there is no need for a
medical examination to determine the etiology of the
disabilities at issue.  The duty to provide a medical
examination applies only where new and material evidence has
been presented or secured.  38 C.F.R. � 3.159

ORDER

As new and material evidence has not been submitted to reopen
a claim of service connection for a back disorder, the appeal
is denied.

As new and material evidence has not been submitted to reopen
a claim of service connection for headaches, the appeal is
denied.

As new and material evidence has not been submitted to reopen
a claim of service connection for a left knee disorder, the
appeal is denied.

As new and material evidence has not been submitted to reopen
a claim of service connection for a neck disorder, the appeal
is denied.

	Iris S. Sherman
	Member, Board of Veterans' Appeals

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

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


series: legacy

judge_norm: J E DAY

judge_role: Member, Board of Veterans' Appeals

disposition: granted

text:
Citation Nr: 0305000
Decision Date: 03/17/03    Archive Date: 03/24/03

DOCKET NO.  97-33 994	)	DATE
	)
	)

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

THE ISSUES

Entitlement to service connection for residuals of a head
injury, to include migraine headaches, a seizure disorder and
first cervical nerve disorder.

(The veteran's claims seeking service connection for left ear
otitis media, the residuals of a back injury, including
arthritis of the lumbosacral spine, and for the residuals of
a laceration of the left arm, to include carpal tunnel
syndrome, as well as to a total disability rating based on
individual unemployability due to service-connected
disabilities (TDIU), will be the subject of a later
decision).

REPRESENTATION

Appellant represented by:	Richard A. Lustgarten,
Attorney

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Steven D. Reiss, Counsel

INTRODUCTION

The veteran had active service from October 1969 to September
1971, including combat service in the Republic of Vietnam,
and his decorations include the Purple Heart Medal and the
Combat Infantryman Badge.  The veteran also served on active
duty for training in June 1974 and had service in the U.S.
Army Reserve.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from June and October 1997 and February
2002 rating decisions of the Department of Veterans Affairs
(VA) Regional Office (RO) in Newark, New Jersey.  In the June
1997 rating decision, the RO denied service connection for
bilateral otitis media and a TDIU.  In the October 1997
rating decision, the RO denied service connection for the
residuals of head and back injuries.  In February 2002, the
RO denied service connection for the residuals of a
laceration of the left arm, to include carpal tunnel
syndrome, and for first cervical nerve disorder.  The veteran
perfected timely appeals of these determinations to the
Board; the Board has accepted the veteran's September 2002
hearing testimony as an adequate substantive appeal with
respect to his first cervical nerve disorder and residuals of
a laceration of the left arm claims pursuant to 38 C.F.R.
� 20.202 (2002); see also Tomlin v. Brown, 5 Vet. App. 355,
357 (1993).

When this matter was before the Board in May 1999, it was
remanded to afford the veteran the opportunity to testify at
a travel board hearing, which was conducted before the
undersigned Board member in May 2000.  The case was remanded
by the Board for further development in July 2000, and in
September 2002, the veteran testified at a second hearing
conducted before the undersigned Board member at the local VA
office.

In a January 1983 decision, the Board denied service
connection for a seizure disorder on the basis that the
veteran did not have seizures during his period of active
duty from October 1969 to September 1971.  In that decision,
the Board also denied entitlement to VA compensation benefits
under the provisions of 38 U.S.C.A. � 351 (West 1982) (now
38 U.S.C.A. � 1151) for a seizure disorder on the ground that
the trauma he sustained to his head due to a fall occurred in
a service department rather than a VA medical facility.  The
Board notes, however, that during this appeal the veteran has
asserted service connection for seizure disorder on the basis
that the condition is secondary to his service-connected left
knee disability, and as such concludes that the RO correctly
determined that the current claim is a new one and must be
adjudicated on a de novo basis.  See Spencer v. Brown, 4 Vet.
App. 283, 289 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994),
cert. denied, 115 S. Ct. 61 (1994).  In addition, because the
veteran's migraine headaches, seizure disorder and first
cervical nerve disorder stem from the same post-service fall,
the Board has identified each of these residuals as one claim
as indicated on the title page.

In addition, during the May 2000 travel board hearing, the
veteran clarified that he sought service connection for
otitis media of the left ear only, rather than for bilateral
otitis media; thus, the Board has identified this issue as
reflected on the title page.

The February 1997 VA joint examination report reflects that
the veteran's service-connected left knee disability is
manifested by two scars, both of which were "exquisitely
tender" to the touch.  The record thus raises the issue of
entitlement to a separate evaluation for tender and painful
scars.  38 C.F.R. � 3.157 (2002).  To date, however, VA has
not considered whether the veteran is entitled to separate
schedular evaluation(s) for these scars, and this issue is
referred to the RO for appropriate action.  See Esteban v.
Brown, 6 Vet. App. 259 (1994).

The Board also observes that the veteran has asserted claims
seeking an increased rating for his service-connected left
foot disability; to service connection for left ankle
disability, asserted as directly incurred due to shell
fragment wound injuries sustained while serving in Vietnam;
service connection for residuals of gall bladder surgery,
which was performed in 1980; and to a temporary total rating
from March 18, 1975, to March 12, 1976.  These issues are
also referred to the RO for appropriate action.

The Board is undertaking additional development on the
veteran's claims for service connection for left ear otitis
media; for the residuals of a back injury, including
arthritis of the lumbosacral spine; for residuals of a
laceration of the left arm, to include carpal tunnel
syndrome; as well as to a TDIU pursuant to authority granted
by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified
at 38 C.F.R. � 19.9(a)(2)).  When it is completed, the Board
will provide notice of the development as required by Rule of
Practice 903.  (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to
be codified at 38 C.F.R. � 20.903.)  After giving the notice
and reviewing your response to the notice, the Board will
prepare a separate decision addressing these issues.

FINDINGS OF FACT

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

2.  Service connection was established for post-operative
residuals of multiple shell fragment wounds of the left knee
with retained foreign bodies (left knee disability) in March
1972, effective September 4, 1971.

3.  The veteran was hospitalized from March 1975 to March
1976, during which time he underwent surgery to treat his
service-connected left knee disability.

4.  Shortly after being sedated, placed in an elevated bed
without handrails, and wearing a left knee cast, the veteran
fell from his hospital bed and sustained trauma to his head
and body, the residuals of which include migraines, a seizure
disorder, and a first cervical nerve disorder.

CONCLUSION OF LAW

Migraine headaches, a seizure disorder and first cervical
nerve disorder are proximately due to or the result of the
veteran's service-connected left knee disability.  38 C.F.R.
�� 3.102, 3.303, 3.310(a) (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. �� 5100, 5103, 5103A, 5107, and 5126, and
codified as amended at 5102, 5103, 5106 and 5107 (West Supp.
2001)) redefined VA's duty to assist a veteran in the
development of a claim.  Guidelines for the implementation of
the VCAA that amended VA regulations were published in the
Federal Register in August 2001.  66 Fed. Reg. 45620 (Aug.
29, 2001) (to be codified as amended at 38 C.F.R. �� 3.102,
3.156(a), 3.159, and 3.326(a)).  The Board finds that all
relevant evidence has been obtained with regard to the
veteran's claim of service connection for residuals of a head
injury, to include migraine headaches, a seizure disorder and
first cervical nerve disorder, and that the requirements of
the VCAA have in effect been satisfied.

The veteran has been provided with a VA examination to
determine the nature and extent of the residuals of a head
injury in February 1997, and the RO has scheduled him for VA
examinations to further study this condition and to obtain an
opinion as to its etiology and manifestations in September
2001 and in January and May 2002, but the veteran has refused
to report.  Instead, the veteran maintains that he has a
right to decline to appear for such examinations and that VA
must evaluate his claim based on the findings and conclusions
contained in medical records and reports prepared by his
private examiners.

The veteran and his attorney have been provided with a
statement of the case and supplemental statements of the case
that discuss the pertinent evidence, and the laws and
regulations related to the claim, and essentially notify them
of the evidence needed by the veteran to prevail on the
claim.  In addition, in September and October 2001 letters,
as well as those dated in January and May 2002, the RO
notified the veteran of the evidence needed to substantiate
his claim and offered to assist him in obtaining any relevant
evidence, to include, as noted above, affording him pertinent
VA examinations.  These letters gave notice of what evidence
the appellant needed to submit and what evidence VA would try
to obtain.  Moreover, pursuant to Board's July 2000 remand
instructions, the RO has associated records from the Social
Security Administration and the state of New Jersey regarding
the veteran's disability benefit claims, as well as his VA
vocational and rehabilitation file, and the veteran has
submitted voluminous private medical records and reports.  As
such, there is no identified evidence that has not been
accounted for and the veteran's attorney has been given the
opportunity to submit written argument.

Under the circumstances, the Board finds that the veteran has
been provided with adequate notice of the evidence needed to
successfully prove his claim and that there is no prejudice
to him by appellate consideration of the claim at this time,
without a third remand of the case to the RO for providing
additional assistance to the veteran in the development of
his claim as required by the VCAA or to give his attorney
another opportunity to present additional evidence and/or
argument.  Bernard v. Brown, 4 Vet. App. 384 (1993).  See
also Karnas v. Derwinski, 1 Vet. App. 308 (1991).  In this
case, in light of the extensive record on appeal and the
Board's favorable determination, no further notice or
assistance to the veteran is required to fulfill VA's duty to
assist him in the development of the claim.  Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Background and Analysis

The veteran maintains, in essence, that service connection is
warranted for migraine headaches, a seizure disorder and for
first cervical nerve disorder because he developed each of
these conditions as a consequence of trauma he sustained to
his head and body during treatment at Patterson Army Hospital
for his service-connected left knee disability.  In support,
the veteran asserts that he has had headaches and neck pain
since the March 1975 fall, and that physician have attributed
these conditions, as well as his seizure disorder, to the
1975 fall.

Alternatively, he contends that his period of active duty
should be extended to include his hospitalization at that
service department medical facility.  In this regard, the
Board notes that only official service department records can
establish if and when an individual was serving on active
duty, active duty for training, or inactive duty for
training.  Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro
v. Derwinski, 2 Vet. App. 530, 532 (1992).  Moreover, as the
Board indicated in its January 1983 decision, official
service department records show that he served on active duty
from October 1969 to September 1971, and that his period of
active duty for training ended on June 29, 1974.  As the
United States Court of Appeals for Veterans Claims (Court)
noted, if a veteran disagrees with the information contained
in those records, his remedy, if any, must be pursued with
the Army Board of Correction of Military Records.  Id.  Here,
the Board observes that in a September 1981 decision, the
Army Board of Correction of Military Records specifically
denied this claim, and accordingly, the issue on appeal
before the Board concerns only whether service connection is
warranted for the residuals of a head injury sustained either
while on active duty or as secondary to a service-connected
disability.

Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty.  38 U.S.C.A.
� 1110; 38 C.F.R. � 3.303.  The law further provides that
service connection may be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d).  Service
connection may also be granted for disability proximately due
to or the result of a service-connected disorder and where
aggravation of a nonservice-connected disorder is proximately
due to or the result of a service-connected disability.  38
C.F.R.  � 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995)
(en banc).  In determining whether service connection is
warranted for a disability, VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event, or
whether a preponderance of the evidence is against the claim,
in which case the claim is denied.  38 U.S.C.A. � 5107;
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The record shows that, while on active duty for training in
June 1974, the veteran re-injured his left knee in the line
of duty, and that in March 1975, he was admitted to Patterson
Army Hospital for surgery to remove foreign bodies from his
service-connected left knee.  The veteran remained
hospitalized until March 1976, and during that
hospitalization, fell from his bed and struck the right side
of his head.  Although the precise date and circumstances of
the fall are unclear, lay statements drafted by ML, one
undated and the other dated in February 1981, corroborate the
contention that it occurred in late March 1975, while the
veteran was sedated and wearing a leg cast; the veteran also
reports that he was placed in an elevated bed and that there
were no side rails in place to protect him from a fall.  In
addition, the Board observes that a July 1975 medical report
reflects that the veteran complained of having fallen
approximately 90 days earlier while being medicated on
Dalmane and Percodan and wearing a cast.  Further, consistent
with ML's account in his lay statement, the veteran did not
recall the fall; ML reported that the veteran was not
conscious at the time he found him.  As such, resolving all
reasonable doubt in the veteran's favor, the Board finds that
he sustained trauma to his head as a consequence of a fall
that occurred due to treatment for his service-connected left
knee disability.  In so finding the Board accepts as true the
testimony and other evidence to the effect that his knee was
immobilized by a cast at that time, and that he was under the
influence of medications affecting his balance and/or
perception.

In addition, several lay statements, as well as service
department medical records, show that the veteran thereafter
complained on numerous occasions of suffering from headaches.
Further, a July 1975 medical record prepared by a neurologist
to whom the veteran had been referred from Patterson Army
Hospital and filed with the veteran's service medical records
reflects that that physician indicated that an EEG yielded
mildly and diffusely abnormal findings.  A September 1975
report prepared by that examiner states that the veteran
probably lost consciousness after falling out of bed and had
been suffering from headaches since that time.  The examiner
stated that the veteran's history was consistent with a post-
concussion syndrome.

The record also discloses that in September 1975, an examiner
at Patterson Army Hospital indicated that the veteran's right
neck and occipital pain was probably secondary to neuralgia
associated with injury to the right first cervical nerve; the
examiner diagnosed the veteran as having right neck and
occipital pain that was secondary to an injury to the right
first cervical nerve or the right first dorsal nerve.

The voluminous post-service VA and private medical records
show that the veteran was initially noted to suffer from
seizures in 1980 and that he has been repeatedly diagnosed as
having migraines and a seizure disorder.  In addition, in a
January 1982 report, a VA dentist reported witnessing the
veteran having a seizure in October 1981.  Accordingly, this
case turns on whether these conditions, as well as his first
cervical nerve disorder, are residuals of the trauma he
sustained while hospitalized in 1975 at Patterson Army
Hospital to treat his service-connected left knee disability.

In March and May 1980 reports, Dr. Warren H. Foer, a
neurologist, indicated that he had reviewed the veteran's
pertinent records, including his service medical records.
Dr. Foer discussed the history of his seizure disorder and
noted that he was treating his seizures with Phenobarbital
and, most recently, Dilantin.  Dr. Foer performed diagnostic
studies and conducted a physical examination of the veteran,
and based on the above, diagnosed him as having a seizure
diathesis that was probably post-traumatic in origin.
Thereafter, in a June 1980 report, Dr. Foer stated that,
based on the veteran's history and the medical findings, his
condition was consistent with a post-traumatic seizure
disorder that was most likely of temporal lobe origin and
probably related to his fall from the hospital bed in 1975.

In July 1982, the veteran testified at a hearing held before
RO personnel, during which he reported that he did not have
any seizures prior to a March 1975 fall at Patterson Army
Hospital.  In addition, he stated that he still had the cast
on at the time of the fall and has had headaches and a stiff
neck since that time.

Further, a review of the claims folder reveals that several
individuals who drafted lay statements reported that, since
1975, the veteran has suffered from recurrent headaches;
based on this history, the physician who performed the
February 1997 VA neurological examination diagnosed him as
having post-traumatic headaches.

At a May 2000 hearing, the veteran testified that he
sustained a right cervical nerve injury due to his March 1975
fall from a hospital bed, which took place as he was
receiving treatment for his service-connected left knee, and
that he currently had neck pain.  In addition, the veteran
reported that he was not conscious at the time of the fall,
that he had been in an elevated bed without side rails, and
that he was wearing a left knee cast.  During the hearing,
the veteran also complained of suffering from headaches and
seizures.  At the September 2002 Board hearing, the veteran
essentially reiterated that he had headaches, a seizure
disorder and neck pain and that each of these conditions
stemmed from the March 1975 fall at Patterson Army Hospital.
He also stated that he had been given a "narcotic" a couple
of hours before the fall, and reiterated that the bed was
elevated and did not have side rails.

In a May 2000 report, Dr. Damon M. Fellman reported that he
had treated the veteran for neurological problems since 1980.
In that report, Dr. Fellman stated that he had reviewed the
veteran's medical records and opined that the etiology of the
veteran's headaches and seizure disorder were both compatible
with a fall out of bed in 1975 at Patterson Army Hospital.
In medical reports dated from September 2000 to June 2002,
Dr. Fellman reiterated that the veteran suffered from
migraine headaches and that the condition was secondary to
his fall from a hospital bed in March 1975.

Following a careful review of the record, and with the
resolution of all reasonable doubt in the veteran's favor,
the Board finds that the evidence is at least in equipoise
and thus supports the veteran's claim of service connection
for residuals of a head injury that was sustained due to
treatment the veteran received in March 1975 for his service-
connected left knee disability, the residuals of which
include migraine headaches, a seizure disorder, and a first
cervical nerve disorder.  In reaching this conclusion, the
Board observes that every medical examiner, both VA and
private, who has addressed the issue of whether his headaches
and seizure disorder are related to the March 1975 fall, has
opined that he has migraine headaches and a seizure disorder
due to the March 1975 fall from a hospital bed; as noted
above, the Board concludes that the fall was related to
treatment the veteran was receiving for his service-connected
left knee disability.

With respect to the veteran's first cervical nerve disorder,
the Board notes that a September 1975 Patterson Army Hospital
record states that the veteran was suffering from right neck
pain that was secondary to neuralgia due to an injury to the
right first cervical nerve, and the veteran has reported that
he has had neck pain since that time.  Because the neck pain
was attributed to a right first cervical injury and there is
no medical evidence showing that the veteran's continued
complaints of pain are related to any other condition,
resolving all reasonable doubt in his favor, the Board finds
that service connection for first cervical nerve disorder is
warranted.

ORDER

Service connection for residuals of head injury, to include
migraines, a seizure disorder, and first cervical nerve
disorder, is granted as secondary to the veteran's service-
connected left knee disability.

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

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

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


judge_norm: BETTINA S CALLAWAY

disposition: denied

text: The appeal is denied.

text:
Citation Nr: 0307000
Decision Date: 04/11/03    Archive Date: 04/14/03

DOCKET NO.  00-20 158	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma.

THE ISSUE

Whether the delimiting date for receiving educational
assistance benefits under Chapter 30, Title 38, United States
Code, is correct.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel

INTRODUCTION

The veteran served on active duty from September 27, 1967, to
April 15, 1975, and from June 3, 1982, to November 30, 1994.

This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from adverse action by the
Department of Veterans Affairs (hereinafter VA) Regional
Office in Muskogee, Oklahoma, (hereinafter RO).  Following a
move by the veteran, the case came within the jurisdiction of
the VA Regional Office in Nashville, Tennessee.  In December
2002, a hearing was held at this regional office before the
Board Member signing this document, who was designated by the
Chairman to conduct the hearing pursuant to 38 U.S.C.A.
� 7102(b) (West 2002).

FINDINGS OF FACT

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

2.  The RO correctly reduced the veteran's delimiting date
for the receipt of VA Chapter 30 educational benefits by the
number of days he was not on active duty between January 1,
1977, and June 30, 1985.

3.  The veteran's adjusted delimiting date is July 2, 1999.

CONCLUSION OF LAW

The veteran's delimiting date for receiving educational
assistance benefits under Chapter 30, Title 38, United States
Code, is July 2, 1999.  38 U.S.C.A. �� 3031, 3033 (West
2002); 38 C.F.R. �� 21.7050, 21.7051, 21.7142 (2002); Sabonis
v. Brown, 6 Vet. App. at 426, 430.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Applicability of the Veterans Claims Assistance Act

There has been a significant change in the law with the
enactment of the Veterans Claims Assistance Act of 2000
(VCAA) codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West Supp. 2002) and implementing
regulations 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (codified as
amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.316(a).
However, because in the adjudication below the law, and not
the evidence, is dispositive of this claim, the VCAA is not
applicable.  See also, Smith (Caludus) v. Gober, 14 Vet. App.
227 (2000) (holding that the VCAA did not affect federal
statute that prohibits payment of interest on past due
benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Sabonis, 6
Vet. App. at 426, 430.  Nonetheless, the veteran has not
indicated at any stage in this appeal that pertinent evidence
exists, or that such evidence was brought to the attention of
the RO or the Board and not obtained.  The veteran was
afforded the opportunity to submit arguments in support of
the claim, and was informed of the legal basis for the denial
of his claim by a January 2000 letter from the RO and by a
July 2000 statement of the case.  Thus, even if the VCAA is
applicable to this case, the Board concludes that VA has
satisfied its duties as set out in this legislation to notify
and to assist the veteran with respect to the issue
adjudicated in this decision.

II.  Legal Criteria/Analysis

For background purposes, it is noted that the Chapter 34
program (Chapter 34, Title 38, United States Code) was
discontinued as of December 31, 1989.  Educational assistance
benefits under Chapter 34 were available to veterans for
qualified programs for a period of ten years following
separation from service.  38 U.S.C.A. � 3452(a).  A veteran
who served a continuous period of not less than 18 months of
active duty after January 31, 1955 and was released under
conditions satisfying his or her active duty obligation was
entitled to full-time educational assistance for a period of
45 months (or equivalent part-time assistance).  38 U.S.C.A.
� 3461(a).  As noted above, the veteran's first period of
honorable active service was from September 27, 1967, to
April 15, 1975, and as such, he was entitled to Chapter 34
benefits.  (A March 1981 record indicates that the veteran
was certified for eligibility for Chapter 34 benefits for
instruction at Southern Illinois University.)

The veteran was separated from his second period of service
in November 1994, but he did not file a claim for educational
benefits under the Chapter 30 program until December 1999.
In this regard, it is noted that the governing legal criteria
provide a ten-year period of eligibility during which an
individual may use his entitlement to Chapter 30 educational
assistance benefits; and this period begins on the date of
the veteran's last discharge from active duty.  38 U.S.C.A. �
3031(a); 21.7050(a).  In this case, as he was separated from
his final period of duty on November 30, 1994, the veteran's
10 year "delimiting date" for utilizing his Chapter 30
benefits was December 1, 2004.

However, a fact crucial to this case that led to the denial
of the veteran's claim below is that for individuals whose
eligibility is based on 38 U.S.C.A. � 3011(a)(1)(B)(i), as is
the case here, the ten-year period of eligibility is reduced
by the amount of time equal to the time that the veteran was
not serving on active duty during the period beginning
January 1, 1977, and ending June 30, 1985.  38 U.S.C.A. �
3031(e); 38 C.F.R. � 21.7050(b).  In the instant case, the
veteran had a break between his initial and second period of
active duty, beginning April 16, 1967, and ending June 2,
1982.  Thus, for the period beginning January 1, 1977, and
ending June 30, 1985, the veteran did not service on active
duty for, as calculated by the RO, 1,979 days.  When these
1,979 days were reduced from the initial delimiting date of
December 1, 2004, the "adjusted" delimiting date was
calculated by the RO as being July 2, 1999.

Based on the legal criteria listed above and the evidence of
record, the Board finds that the RO properly adjusted the
veteran's delimiting date for Chapter 30 educational
assistance benefits.  Specifically, it is not disputed that
the veteran was not on active duty for the period in question
between his two periods of active duty.  Instead, the veteran
has contended in writing and sworn testimony that it was his
understanding, from those advising him and publications
describing the criteria for VA educational benefits, that he
had until sometime in 2004, or 10 years after his final
separation from service, to utilize his VA educational
benefits.  In short, however, the RO properly, as required by
law, computed his reduced date and correctly determined that
the period between the veteran's relevant periods of active
duty resulted in an adjusted delimiting date of July 2, 1999.

The Board does not find any evidence that the VA failed to
properly inform the veteran of the eligibility requirements
for educational benefits.  However, notwithstanding VA's
obligation to correctly inform the veteran about basic
eligibility or ineligibility for Chapter 30 educational
assistance benefits, the remedy for breach of such obligation
could not involve payment of benefits where statutory
requirements for such benefits are not met.  See Harvey v.
Brown, 6 Vet. App. 416, 424 (1994).  Inaccurate advice would
not create any legal right to benefits where such benefits
are otherwise precluded.  See Shields v. Brown, 8 Vet. App.
346, 351 (1995); see also McTighe v. Brown, 7 Vet. App. 29,
30 (1994) ("[e]rroneous advice given by a government
employee cannot be used to estop the government from denying
benefits.").  While the Board is sympathetic to the
arguments and testimony submitted by the veteran, and regrets
any harm which may have resulted form his confusion as to his
eligibility for the benefits sought, the legal criteria
governing the payment of education benefits are clear and
specific, and the Board is bound by them.
38 C.F.R. � 7104(c).  Thus, as the disposition of this claim
is based on the law, and not on the facts of the case, the
claim must be denied based on a lack of entitlement under the
law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

	(CONTINUED ON NEXT PAGE)

ORDER

The appeal is denied.

____________________________________________
	BETTINA S. CALLAWAY
	Veterans Law Judge, Board of Veterans' Appeals

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

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


judge_norm: JAMES L MARCH

benefit: burial

text:
Citation Nr: 0308000
Decision Date: 04/28/03    Archive Date: 05/06/03

DOCKET NO.  02-05 957	)	DATE
	)
	)

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

THE ISSUE

Entitlement to nonservice-connected burial benefits in
accordance with the provisions of 38 U.S.C.A. � 2305 (West
2002).

REPRESENTATION

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

ATTORNEY FOR THE BOARD

J. Johnston, Counsel

INTRODUCTION

The veteran had active service from July 1941 to December
1945.  His enlisted record and report of separation with
honorable discharge indicates he was awarded the Asiatic-
Pacific Theater Ribbon.  The veteran died in December 2000,
and the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an adverse determination by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas, which denied the appellant's application for
payment of nonservice-connected burial benefits.  The case is
now ready for appellate review.

FINDINGS OF FACT

1.  The veteran had active military service from July 1941 to
December 1945, during World War II.

2.  The veteran died in December 2000, and the appellant's
claim for VA burial benefits was received in February 2001.

3.  The veteran was not discharged from active duty for a
disability incurred or aggravated in the line of duty.

4.  At the time of the veteran's death, service connection
was not in effect for any disability, he was not in receipt
of nonservice-connected disability pension, he did not have a
claim for compensation or pension pending, and he was not
hospitalized by VA.

CONCLUSION OF LAW

The criteria for payment of VA burial benefits in accordance
with 38 U.S.C.A. � 2305 have been met.  38 U.S.C.A. �� 2302,
2305 (West 2002); 38 C.F.R. �� 3.2(d), 3.954, 3.1600, 3.1601
(2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Law and Regulation:  The Veterans Claims Assistance Act of
2000 (VCAA) and regulations implementing this liberalizing
legislation are applicable to the appellant's claim.  Karnas
v. Derwinski, 1 Vet. App. 308, 312-13 (1991).  The VCAA
provides that VA make reasonable efforts to assist claimants
in obtaining evidence necessary to substantiate claims, and
requires VA to notify claimants and representatives of the
evidence necessary to substantiate claims.

A review of the claims folder reveals that the RO has not
specifically advised the appellant in this case of the law
and regulation implementing VCAA nor have they offered to
assist her in developing evidence relevant to her claim.  The
RO did provide the appellant with the generally applicable
laws and regulations governing entitlement to burial
benefits.  The Board, however, notes that the VCAA made no
changes in the statutory or regulatory criteria governing
burial benefits.  All of the relevant facts have been
obtained and are not in dispute regarding the veteran's
actual period of military service.  The Board finds that the
outcome of the present appeal is based upon the correct
application of the law to the known facts.  The US Court of
Veterans Appeals for Veterans Claims (Court) has specifically
held that the provisions of VCAA are not applicable in cases
which are decided as a matter of law, and not the underlying
facts, or development of facts.  Manning v. Principi, No. 98-
572 (U. S. Vet. App. Dec. 19, 2002); 38 U.S.C.A. �� 5102,
5103, 5103A, 5107 (West 2002).  Also, the benefit sought on
appeal is granted in full.  Under the circumstances, any
defect arising from failure to comply with the terms of VCAA
would be mooted.  The complete allowance of benefit sought on
appeal cannot result in prejudice to the appellant.  Bernard
v. Brown, 4 Vet. App. 384 (1993).

Under current law, burial allowances are payable under
certain circumstances to cover the burial and funeral
expenses of a veteran and the expense of transporting the
body to the place of burial.  38 U.S.C.A. � 2302 (West 2002);
38 C.F.R. � 3.1600 (2002).

If a veteran dies as a result of service-connected
disability, certain burial benefits may be paid.  38 C.F.R.
� 3.1600(a).

If a veteran's death is not service connected, entitlement to
burial benefits may be found if (1) at the time of death, the
veteran was in receipt of pension or compensation; or (2) the
veteran had a claim pending for compensation or pension and
there was sufficient evidence of record on the date of death
to indicate that the pending claim would be allowed; or (3)
that the veteran had wartime service or was discharged or
released for disability incurred or aggravated in the line of
duty and the body was held by a State (or subdivision) and VA
determines that there is no next of kin or other person
claiming the body, and that there are not available
sufficient resources in the estate to cover final expenses.
38 U.S.C.A. � 2302; 38 C.F.R. � 3.1600(b).

Alternatively, burial benefits may be paid if a person dies
from nonservice-connected causes while properly hospitalized
by VA in a VA facility or in a non-VA facility for hospital
care authorized and approved by VA.  38 U.S.C.A. � 2303;
38 C.F.R. � 3.1600(c).

In this case, the appellant has at all times from the
inception of her claim and throughout the appeal, claimed
entitlement to burial benefits specifically in accordance
with 38 C.F.R. � 3.954.  That regulation, with essentially
identical language as that contained at 38 U.S.C.A. � 2305,
provides that when any person who had a status under any law
in effect on December 31, 1957, which afforded entitlement to
burial benefits dies, the burial allowance will be paid, if
otherwise in order, even though such status does not meet the
service requirements of 38 U.S.C.A. Chapter 23.

The provisions of 38 U.S.C.A. � 2305 and 38 C.F.R. � 3.954
were drafted as "saving clauses" to preserve the
eligibility of persons entitled to burial benefits, after
changes to the laws governing the benefits were made in the
Veterans' Benefits Act of 1957 (Veterans' Benefits Act), Pub.
L. No. 85-56, Section 805, 71 Stat. 83, 118.  As a result of
these saving clauses, veterans who cannot meet the current
criteria for Chapter 23 burial benefits are eligible for such
benefits, if they were eligible for burial benefits under the
laws in effect on or before December 31, 1957.

Prior to January 1, 1958, pertinent law and regulations
provided that where an honorably discharged veteran of any
war, a veteran of any war in receipt of pension or
compensation, a veteran discharged from a service department
for disability incurred in line of duty, or a veteran of a
service department in receipt of pension for service-
connected disability dies after discharge, the administrator,
in his discretion, and with due regard to the circumstances
in each case, shall pay, for burial and funeral expenses and
transportation of the body (including preparation of the
body) to the place of burial, a sum not exceeding $150 to
cover such items and to be paid to such person or persons as
may be prescribed by the administrator.  38 C.F.R. � 4.192(b)
(1956) (emphasis added).

Claims for reimbursement or direct payment of burial and
funeral expenses must be received by VA within two years
after the permanent burial or cremation of the body.  Claims
for VA burial allowance benefits may be executed by the
funeral director, the individual whose personal funds were
used to pay burial expenses, or the executor or administer of
the estate of the veteran.  38 C.F.R. � 3.1601(a).  Evidence
in support of such claim should generally be a statement of
account showing the name of the deceased veteran, and the
actual costs of burial.  Id at (b).

Analysis:  The appellant submitted her claim for burial
benefits in February 2001, less than two months after the
veteran's death.  She also submitted a certificate of death
of the veteran from the State of Texas which indicated that
she was the veteran's surviving spouse.  Also submitted was a
statement of account, on the letterhead of the funeral home,
indicating a detailed statement of expenses of the veteran's
burial, with a certification that the appellant had paid
these expenses in full on the date of the burial.  The
appellant's VA application for burial benefits also indicated
that she was the veteran's surviving spouse, and that she had
paid all burial expenses in full, without reimbursement or
financial assistance from other persons, agencies or
insurance.  An amended application was later submitted
indicating that she did receive a small reimbursement against
the total cost from the Social Security Administration.

Although the RO cited the provisions of 38 C.F.R. � 3.954 in
its March 2002 Statement of the Case, that statement
contained no discussion of the application of that regulation
to the facts presented in the appellant's claim for burial
benefits.  That Statement of the Case denied the appellant's
application for burial benefits based entirely upon
application of the current laws and regulations governing
awards of VA burial benefits, without reference to the saving
clauses at 38 U.S.C.A. � 2305 and 38 C.F.R. � 3.954.

The veteran is shown by service department records to have
had active military service from July 1941 to December 1945.
This military service falls within the dates recognized for
VA benefits as World War II service in accordance with
38 C.F.R. � 3.2(d).  The law in effect prior to January 1,
1958, provided for VA burial benefits to be payable to any
honorably discharged veteran with military service during a
period of war.  38 C.F.R. � 4.192(b) (1956).  Because the
veteran is shown to have had active military service during a
recognized period of war prior to January 1, 1958, the
appellant is entitled to payment of VA burial benefits in
accordance with her claim which is based upon the saving
provisions of 38 U.S.C.A. � 2305; 38 C.F.R. � 3.954.

Further, the appellant appears to satisfy the requirements at
38 C.F.R. � 3.1601 as to individuals who may legitimately
pursue such claims because the evidence on file shows that
the appellant used her personal funds to cover the cost of
the veteran's burial, far in excess of the small amount she
received from the Social Security Administration.  That the
appellant has the proper status as claimant for burial
benefits is supported in her official VA Forms 21-530, and in
the billing statement on file from the funeral home referred
to above.

Although it might be argued that in order to meet all the
requirements for payment of burial benefits in accordance
with the laws prior to January 1, 1958, it would be necessary
that the veteran have died prior to that time, because a
veteran's death would certainly be a prerequisite to payment
of burial benefits on his behalf.  The Board finds that this
is an illogical and incorrect interpretation of the saving
provisions of 38 U.S.C.A. � 2305 and 38 C.F.R. � 3.954.  If a
veteran was required to have died before January 1958, there
would be little purpose in adopting saving clauses to
preserve these benefits for veteran's already qualifying but
who might later lose eligibility based upon subsequent
changes in the law (facts identical to those presented in
this case).  Moreover, the language of the earlier law only
required that a veteran's death occur "after discharge."

The veteran in this case is shown to have had active military
service during World War II.  That appears to be the only
requirement for payment of burial benefits to the appellant
in this case in accordance with 38 U.S.C.A. � 2305 and
38 C.F.R. � 3.954.  There is no evidence nor is there any
argument by the appellant that burial benefits are authorized
or warranted under any later adopted rules as summarized
above.  The appellant in this case appears to be a valid
claimant in that she bore the majority of the veteran's
burial expenses as documented in evidence on file.

ORDER

The claim of entitlement to burial benefits is granted.

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

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

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


judge_norm: GEORGE R SENYK

text:
Citation Nr: 0309000
Decision Date: 05/13/03    Archive Date: 05/20/03

DOCKET NO.  95-10 865	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for residuals of frostbite
of the feet.

REPRESENTATION

Appellant represented by:	New York State Division of
Veterans' Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Carolyn Wiggins, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from
July 1962 to July 1965.

This appeal arises from a June 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York, which denied service connection for
residuals of frostbite of the feet.  A Travel Board hearing
was conducted at the RO in June 1997.  In October 1997, the
Board Member who conducted the hearing remanded the case for
further development.  That Board Member has since retired.
In January 2003 the Board of Veterans Appeals sent the
veteran a letter informing him of the Board Member's
retirement, and offering him another hearing.  The veteran
did not respond.

FINDINGS OF FACT

1.  There is no competent evidence that the veteran had
frostbite of the feet in service.

2.  By a preponderance the evidence establishes that the
veteran's current foot disabilities are not due to frostbite
in service, but instead are due to other, nonservice-related
causes.

CONCLUSION OF LAW

Service connection for frostbite of the feet is not
warranted.  38 U.S.C.A. �� 1110, 1131(West 2002); 38 C.F.R.
� 3.303 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)(codified at
38 U.S.C.A. �� 5102, 5103, 5103A, 5107) was enacted while
this appeal was pending.  Regulations implementing the VCAA
have been published.  38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a).  In pertinent part, VCAA eliminated the requirement
that a claimant submit evidence of a well-grounded claim, and
imposed expanded notice and duty to assist requirements on
the VA.  The VCAA applies in the instant case.  See
VAOPGCPREC 11-2000.  However, the Board finds that the
mandates of the VCAA are met.

The claim was considered on the merits, and well-groundedness
is not an issue.  The rating decision and the statement of
the case advised the veteran of what was necessary to
establish his claim, of what the evidence showed and the
controlling law and regulations, and why the claim was
denied.  The September 2002 supplemental statement of the
case outlines the provisions of the VCAA, provides citations
to the Sections of the Law and Regulations amended by the
VCAA, and updates the status of the claim, summarizing
additional evidence and outlining the controlling law and
regulations.  Letters to the veteran in December 1997 and in
February 2002 advised the veteran of his responsibilities in
claims development.  See generally Quartuccio v. Principi,
16 Vet. App. 183 (2002).

Regarding the "duty to assist", VA has obtained all
available service records, VA records and Social Security
records.  The RO has also, on at least two occasions, asked
the veteran to provide information regarding further
treatment providers and to provide release forms so that VA
could obtain additional treatment records.  The veteran did
not respond to these requests.  The RO has arranged for VA
examinations and advisory opinions; and the veteran has been
advised of those opinions/examination results.

While no specific letter regarding the VCAA has been issued,
the veteran, in one form or another, has received all
mandated notification and assistance.  Under these
circumstances, remanding the case to the RO for a VCAA letter
would be an exercise in redundancy, and the resulting delay
would be unconscionable, given that the appeal has been
pending almost 10 years.

                                                      Factual
Background

The record shows that the veteran's service included a period
in excess of a year of overseas service (apparently in
Korea).  August 1962 service medical records reveal that
while serving at Fort Dix, N.J., the veteran was seen for
complaints of foot pain, especially when marching.
Examination of the feet was "unrevealing."  In December
1962 he was seen at a Fort Benning, Georgia dispensary for
complaints which included a cold and "Boots wrong size."
Cold medication and an exchange of boots were prescribed.  On
service separation examination in July 1965 no abnormalities
of the feet or lower extremities were noted.  An extract
listing the veteran's dispensary/clinic visits in service
contains no mention of a November 1963 visit.

In his application for VA benefits in January 1993, the
veteran indicated that while serving in Korea in November
1963 he sustained frostbite of the feet.  He noted he was
treated for frostbite at the Community Hospital from December
1990 to August 1992, and at the VA Medical Center in Brooklyn
since September 1993.

Records from Community Hospital reveal that in August 1992
the veteran was seen for gangrene of the feet with abscesses
and diabetes mellitus.

Records from the VA Medical Center in Brooklyn reflect
treatment for a left eye hemorrhage and show a diagnosis of
diabetes mellitus.

On VA examination in May 1994, the veteran gave a history of
exposure to cold in Korea in 1963.  He indicated he had been
diabetic since 1990.  Charcot of the feet, diabetes mellitus
and cold exposure of the feet were diagnosed.

In his substantive appeal in April 1995, the veteran asserted
he was treated at a field hospital in Korea.  The treatment
consisted of thawing his feet.  He contends the doctors there
told him he had suffered frostbite damage to the small veins,
arteries and capillaries of his feet.  They told him he would
probably have permanent neuropathy in his feet.  He asserted
he now has neuropathy as a result of his frostbite.  The
later development of a serious vascular condition caused
ulcerations in both of his feet and chronic osteomyelitis
which caused him to be permanently disabled.

In June 1997 the veteran submitted the following statement
from his private podiatrist:

I have been made aware that in 1963 the
above patient suffered frostbite while
serving time in the service.  He
developed diabetes in 1990, and was
referred to me for treatments of multiple
foot complications in 1992.

A follow-up from that same podiatrist states:

This patient gave a history of having
frostbite while in the Armed Forces in
1963.  He also had a history of Diabetes.

Although all of the present ulcerations
appear to be secondary to his diabetic
condition, and the Charcot changes
secondary to diabetic neuropathy, the
weakness of the vessels in his lower
extremities, as well as the affect of the
nerve functions, can also be attributed
to the previous frostbite.

In conclusion, it is my opinion that the
present condition of (the veteran's)
lower extremities is a combination of
both a systemic disease and the previous
frostbite.

The veteran also submitted a statement from his nurse dated
in June 1997.  She began treating the veteran in September
1992.  She had previously taken care of diabetic patients.
The veteran's problems were the most advanced she had ever
seen for the amount of time he had been diagnosed with
diabetes.  She felt his claim to previous damage had at least
as much validity as not.

The veteran testified at a hearing before a Member of the
Board in June 1997.  The veteran remembered attending sick
call while he was stationed in Fort Benning, Georgia.  He was
suffering from pains in his feet.  It happened continuously.
While he was there they had a cold spell.  It was the coldest
it had been since 1938.  He specifically went in complaining
about the cold.  After that he was transferred to Korea.  He
was a cook.  While he was there he went on a field exercise.
He was there for 10 days of a two week field exercise
program.  That is where he got frostbite.  He went to sick
call.  He was issued new boots being tested, which leaked,
and water got inside the boot and froze, causing frostbite.
The feet were red.  He was in a field hospital.  He indicated
there were no permanent records of this treatment, and that
he was in a field hospital for three days.  When he was in
the hospital they took off his shoes, dried his feet and gave
him new boots and socks.  He had numbness and tingling in his
feet.  The numbness stayed with him and bothered his feet
when it was cold.

In a letter in December 1997, the RO asked the veteran to
indicate any treatment he received for his feet since
service.  He did not respond.

An October 1998 VA examination report includes the veteran's
history of suffering frostbite of the feet in Korea.  He
stated he had neuropathy of his feet, with no feeling on the
bottom of his feet.  In August 1992 he had surgery for
abscesses of the big toes with removal of the metatarsal
head.  The left foot had an ulcer.  Examination of the feet
revealed the skin of the feet, ankles and legs was warm.
Pedal pulsations were felt on the right but were not palpable
on the left.  There were numerous healed surgical scars on
the right foot, and an elliptical healing ulcer of the
lateral aspect of the mid left sole.  X-rays of the left foot
revealed marked destruction of the midfoot.  Talar bone was
virtually resorbed.  There was extensive sclerosis.  Tarsal
bones had also undergone extensive degeneration.  There was
mild deformity with findings of a Charcot deformity,
involving the mid and hind foot.  There were extensive
destructive changes and accompanying hypertrophic changes and
sclerosis with complete loss of the talus, proximal half of
the calcaneus and tarsal bones.  X-rays of the right foot
demonstrated status post surgery for deformities of the first
through third metatarsal heads.  The deformities of the
midfoot present on a prior study were unchanged.

Records from the Social Security Administration reveal the
veteran was found disabled as of November 1, 1990 due to
disabilities including diabetes, blindness, and bilateral
plantar ulcers.

An undated opinion from the Chief of Administrative Medicine
at a VA facility states:

The C-file and all available medical
records were reviewed.  (The veteran's)
current disorder of his feet is a result
of his severe diabetes mellitus.  There
was no medical documentation in the C-
file to support a diagnosis of frostbite.
There is documentation that (the veteran)
was admitted to Community Hospital in
June 1989 with the diagnosis of
cellulitis of the right foot and diabetes
mellitus.  At the time, he was already on
large doses of insulin and notes indicate
his diabetes had been diagnosed as early
as 1986.  In 1993, it is documented the
veteran had a vitreous hemorrhage of the
left eye and severe diabetic
proliferative disease.  Records also
reveal a hospitalization in August 1992
for Gangrene and Ulcer of the foot and
Ketoacidosis.  It is clear that (the
veteran's) vascular problems were more
likely than not related to his severe
diabetes mellitus, type I.

Additional records from the Social Security Administration,
received in February 2000, include private medical records
dated in July 1993 which indicate the veteran then had a 10
year history of diabetes.

In August 2000 the VA Chief of Administrative Medicine again
reviewed the medical record and opined:

The C-file, all available medical records
and the compensation and pension
examination for Feet completed on October
13, 1998 were reviewed.  (The veteran)
has multiple old healed ulcers of the
feet and current ulcers involving the
feet.  X-rays reveal extensive
destructive and hypertrophic changes in
the midfoot and tarsal bones of the right
foot.  There are findings of Charcot and
neuropathic findings in both feet.  These
findings are consistent with the
veteran's diabetes mellitus and are not
residuals of the service-connected
frostbite of bilateral feet.

In February 2002 the RO again asked the veteran to identify
any treatment he had received for his feet since his
discharge from the service, and to complete and return a form
authorizing the RO to obtain the veteran's records from Dr.
S, his private podiatrist.  The veteran did not respond.

                                                Criteria and
Analysis

Generally, to establish service connection for a claimed
disability, there must be competent evidence of current
disability, evidence of event, injury, or disease in service,
and competent evidence of a nexus between the claimed
disability and the event, injury, disease in service (or
another service-connected disability). 38 U.S.C.A. �� 1110,
1131.

Here, the veteran claims service connection for foot
pathology, most significantly circulatory (vascular) and
neurological problems, which he alleges is due to frost bite
in service.  At the outset, there is absolutely no evidence
that the veteran indeed sustained cold trauma to the feet in
service.  While he has alleged that he was seen for
complaints of cold injuries to the feet at Fort Benning, the
references in the service medical records at the time are to
a cold (upper respiratory infection) and too small boots.
Medication for the cold and boot exchange were prescribed.
And while he alleges frostbite requiring hospitalization in
service, an extract of his service medical treatment makes no
reference to treatment at the time this is alleged to have
occurred (November 1963), service medical records contain no
mention of history or treatment of frostbite (or residuals on
separation from service), and the veteran himself testified
at a hearing that no record was created of the treatment
(which in itself is suspect, as hospitalization is alleged).

Regarding current disability, the veteran clearly has current
foot pathology.  The question remaining is whether this is
frostbite residual pathology.  Competent evidence in that
regard consists essentially of statements by VA examiners
and/or reviewing medical personnel, statements from the
veteran's private podiatrist, and a statement from the
veteran's treating nurse.  The statements from the VA
examiner who diagnosed frostbite residuals, the veteran's
podiatrist, and the treating nurse, are all premised on the
veteran's own accounts of frostbite in service, accounts that
are uncorroborated and appear inconsistent with the record.
Further, it does not appear that any of these opinion
providers was familiar with the veteran's entire medical
history.  Significantly, the treating nurse, who based her
opinion on a supposition that the foot changes occurred too
soon in a diabetes so recently diagnosed to be attributable
to diabetes appears to have been unaware that in 1993, the
diabetes had a 10 year history, and by November 1990 was
totally disabling (according to SSA).

The opinions by the VA reviewing physician were based on a
complete review of the file, and explain the rationale.
Hence, they have greater probative value.  As they attribute
the veteran's foot changes to diabetes, and specifically not
to frostbite, together with the negative findings in service
and the passage of time before the foot changes appear they
to establish that the preponderance of the evidence is
against a finding that the veteran's current foot pathology
is a residual of frostbite.

The veteran testified he had red feet in service after his
boots leaked and froze in Korea.  As a layperson, he is not
competent to make a medical diagnosis or to relate a medical
disorder to a specific cause.  See Espiritu v. Derwinski,
2 Vet. App. 492, 494 (1992).  Although he is competent to
relate an incident and that he noticed his feet were red and
cold, he is not competent to establish he had frostbite.

In summary, while the evidence shows current foot disability,
it does not show an event, injury, or disease in service
(i.e., that the veteran sustained frostbite in service) or
that there is any relationship between the veteran's current
foot disabilities and service.  Hence, service connection for
residuals of frostbite is not warranted.

ORDER

Service connection for frostbite of the feet is denied.

____________________________________________
	George R. Senyk
	Veterans Law Judge, Board of Veterans' Appeals

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

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


judge_norm: GEORGE E GUIDO JR

condition: eye

text:
Citation Nr: 0310000
Decision Date: 05/23/03    Archive Date: 05/27/03

DOCKET NO.  99-06 189A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUE

Entitlement to service connection for loss of visual acuity
(claimed as eye condition) as secondary to the veteran's
service-connected arteriosclerotic heart disease.

REPRESENTATION

Veteran represented by:	Georgia Department of Veterans
Service

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

C. L. Mason, Senior Counsel
INTRODUCTION

The veteran served on active duty from June 1940 to December
1944.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 1998 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Hartford,
Connecticut.  The veteran appeared at a hearing at the RO in
September 1999.  The veteran requested and was scheduled for
a hearing before a Member of the Board in July 2001; however,
the veteran failed to report for the hearing.  The Board
remanded the case for additional development in August 2001.
The case has been returned for adjudication.  During the
course of this appeal, the veteran relocated to Georgia.
Thus, the veteran's servicing RO is Atlanta.

The veteran has raised the issue of entitlement to an
increased evaluation for his arteriosclerotic heart disease.
This issue is referred to the Atlanta RO.

FINDINGS OF FACT

1.  Service connection is currently in effect for
arteriosclerotic heart disease.

2.  There is no competent medical evidence of record that the
veteran's loss of visual acuity was present in service.

3.  The medical evidence of record does not establish that
the veteran's loss of visual acuity is proximately due to or
the result of his service-connected arteriosclerotic heart
disease.

CONCLUSION OF LAW

Loss of visual acuity was not incurred in or aggravated by
service and was not proximately due to, or the result of a
service-connected disability.  38 U.S.C.A. �� 1110, 5103,
5103A, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.310 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran states that he first developed visual problems
several years after service, and thus, he does not maintain
that his loss of visual acuity began during service.  Rather,
the veteran contends that his loss of visual acuity developed
as a result of his service-connected arteriosclerotic heart
disease.

Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by active
service.  38 U.S.C.A. � 1110 (West 2002).  For the showing of
chronic disease in service, there is required a combination
of manifestations sufficient to identify the disease entity
and sufficient observation to establish chronicity at the
time, as distinguished from merely isolated findings or a
diagnosis including the word "chronic."  When the fact of
chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim.  38 C.F.R. � 3.303(b) (2002).  Service connection
may be also 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) (2002).

Service connection connotes many factors, but basically, it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service.  A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease in service.  See Pond v.
West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App.
309, 314 (1993).

Disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected.  38 C.F.R. � 3.310 (2002).  The United States
Court of Appeals for Veterans Claims (Court) clarified that
service connection shall be granted on a secondary basis
under the provisions of 38 C.F.R. � 3.310(a) where it is
demonstrated that a service-connected disorder has aggravated
a nonservice-connected disability.  See Allen v. Brown, 7
Vet. App. 439, 448 (1995).  To establish a claim for
secondary service connection, a veteran must demonstrate that
a current disability is the result of a service-connected
disability.  Medical evidence is required to prove the
existence of a current disability and to fulfill the nexus
requirement.  See Black v. Brown, 10 Vet. App. 279 (1997).

Service medical records are negative for evidence of
complaints, findings, diagnoses, or treatment for any visual
disorder to include loss of vision.

VA medical records from 1980 to 1992 do not disclose
complaints, findings, or diagnoses of any visual or eye
disorder.  VA medical records from 1993 to 1997 show findings
of visual changes with diagnoses of refractive error and
presbyopia in both eyes.  VA medical records from 1998 to
1999 reveal complaints of eye pain and difficulty reading and
making out objects.  Diagnoses included hyperopia with
presbyopia, optic nerve pallor of the left eye secondary to
childhood trauma, and possible temporal arteritis.  VA
medical records from 1999 to 2002 from multiple VA medical
facilities show complaints and findings of visual disorder to
include refractive error, hyperopia with presbyopia, optic
nerve pallor of the left eye secondary to childhood trauma,
and possible temporal arteritis.  The records indicate that
steroids were prescribed for the temporal arteritis to
prevent loss of vision; however, the veteran refused to take
steroids.

At a January 2003 VA eye examination, the veteran reported
that he was hit in the eye as a child, but that his vision
was 20/20 when he went into service.  Refraction testing
revealed that the veteran was farsighted with a little
astigmatism and presbyopic, which the examiner stated meant
aging eyes.  Intraocular pressures were within the normal
range.  Biomicroscopy of the ocular adnexa revealed some
aging type nuclear sclerotic cataracts, water vacuoles,
cortical lens opacities, and cholesterol depositions in the
cornea.  Additionally, there was pigmented conjunctiva, which
the examiner related to smoking.  Dilated fundus examination
showed posterior vitreous detachment and some changes in the
inner limiting membrane as well as some fibrotic tissue
temporal to the macula in the left eye.  The examiner stated
that the reason the veteran cannot see 20/20 like he did in
service is because of the aging process.  The examiner
further stated that the veteran's eye disorders are related
to the aging process and not from anything that was
exacerbated or exaggerated by military service.

A January 2003 VA heart examination report noted the
veteran's contentions that his eye disorder was related to
his service-connected heart disorder.  Following review of
the veteran's medical history in the claims file and
examination, the impressions included arteriosclerotic heart
disease, atrial fibrillation, severe tricuspid regurgitation,
and decreased visual acuity secondary to presbyopia and
hyperopia.  The examiner stated that generally
arteriosclerotic heart disease does not cause significant
visual problems.  He opined that the veteran's decreased
vision was note related to his arteriosclerotic heart
disease.

The Board has considered the veteran's statements that it is
his opinion that his loss of visual acuity is related to his
service-connected arteriosclerotic heart disease.  The
veteran is competent as a layperson to report that on which
he has personal knowledge.  See Layno v. Brown, 6 Vet. App.
465, 470 (1994).  However, the veteran is not competent to
offer medical opinion as to cause or etiology of the claimed
disability as there is no evidence of record that the veteran
has specialized medical knowledge.  See Grottveit v. Brown, 5
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).

Following review of the entire claims folder, there is no
medical evidence of a diagnosis of any visual disorder to
include loss of visual acuity during service.  The first post
service medical evidence of visual problems was in 1997, more
than 50 years after service.  Additionally, the veteran
testified that no physician had ever related his eye disorder
to his service-connected heart disorder.  Moreover, a VA
examiner opined that there was no relationship between the
veteran's eye disorder to include loss of visual acuity and
his military service or his service-connected
arteriosclerotic heart disease.  There is no evidence of
record which contradicts this opinion.  Thus, the Board finds
that there is no medical evidence linking the veteran's eye
disorder to include loss of visual acuity to his active
military service or to his service-connected arteriosclerotic
heart disease.  Accordingly, the Board concludes that the
preponderance of the evidence is against a finding that the
veteran's disorder of the eye to include loss of visual
acuity began during service or developed secondary to his
service-connected arteriosclerotic heart disease.  Thus, the
veteran's claim is denied.

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

First, VA has a duty to provide an appropriate claim form and
to notify the veteran of any information and evidence needed
to substantiate and complete a claim.  38 U.S.C.A. �� 5102
and 5103; 38 C.F.R. � 3.159(b).  There is no issue as to
providing an appropriate application form, or completeness of
the application.  In the circumstances of this case, the
veteran was advised of the applicable laws and regulations,
and the evidence needed to substantiate his claim by a
statement of the case, an August 2001 Board remand, an
October 2001 letter, and a January 2003 supplemental
statement of the case.  In particular, the October 2001
letter and the January 2003 supplemental statement of the
case notified the veteran that VA would obtain all relevant
evidence in the custody of a federal department or agency,
including VA, Vet Center, service department, Social
Security, and other federal agencies.  These documents
further advised the veteran that it was his responsibility to
either send medical treatment records from his private
physician regarding treatment for his claimed disabilities,
or to provide a properly executed release so that VA could
request the records for him.   Thus, VA's duty to notify has
been fulfilled.  See Quartuccio v. Principi, 16 Vet. App. 183
(2002).

Secondly, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim.  38 U.S.C.A.
� 5103A; 38 C.F.R. � 3.159(c).  The record shows that the RO
has secured the veteran's service medical records, VA
clinical records from multiple VA facilities, and VA
examination reports.  As the veteran has not identified any
other medical records, either VA or private, to substantiate
his claim, the Board concludes that the duty-to-assist
provisions of the VCAA have been complied with.

ORDER

Service connection for eye disorder to include loss of visual
acuity is denied.

____________________________________________
	GEORGE E. GUIDO JR.
	Acting Veterans Law Judge, Board of Veterans' Appeals

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

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