judge_norm: C W SYMANSKI

benefit: overpayment

text:
BVA9500001
DOCKET NO.  93-06 506     )       DATE
          )
          )

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

THE ISSUE

Entitlement to waiver of recovery of an overpayment of
compensation benefits in the amount of $6,056, to include the
issue of whether the overpayment was properly created.

REPRESENTATION

Appellant represented by: AMVETS

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Susan S. Toth, Associate Counsel

INTRODUCTION

The veteran had active service from September 1943 to October
1945.

This matter arises from a determination of October 1991, whereby
the Regional Office's Committee on Waivers and Compromises (RO)
denied the veteran's claim for waiver of recovery of the
overpayment at issue.

The veteran appeared to raise several issues in the notice of
disagreement received in March 1992.  He appeared to request
adjudication of a claim for pension and/or an increased rating
claims for his service-connected disabilities.  Since these
issues are not inextricably intertwined with that presently
before the Board of Veterans' Appeals (Board), they are referred
to the RO for appropriate consideration.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends, in effect, that the debt was created
solely due to Department of Veterans Affairs' (VA) error.  He
asserts that he informed the VA soon after his wife's demise in
December 1985 that he was widowed.  However, after two phone
calls to the VA, his checks still did not reflect the appropriate
reduction.  He also asserts that the VA had notice in March 1988
that he was no longer married when he submitted an application
for outpatient dental treatment which reflected that information.
The veteran also has indicated that recovery of the overpayment
amount would cause him severe financial hardship.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
veteran's claim that the indebtedness was improperly created and
is against the claim for waiver of recovery of the overpayment in
the amount of $5,736, but the evidence supports a  waiver of
recovery of a $320 overpayment.

FINDINGS OF FACT

1.  Attempts to obtain all relevant evidence necessary for an
equitable disposition of the veteran's appeal have been made by
the RO.

2.  The VA does not bear sole responsibility for the creation of
an overpayment of compensation benefits in the amount of $6,056,
since the RO did not have actual notice of the December 1985
death of the veteran's wife until 1991.

3.  The veteran bears significant fault with respect to creation
of the indebtedness by virtue of his failure to promptly notify
the RO of a change in his dependency status.

4.  The VA bears minimal fault with respect to creation of the
indebtedness by virtue of its failure to inquire as to the
veteran's dependency status upon the receipt of an application
for medical benefits in March 1988.

5.  The veteran was married to his third wife, Norma, from
November 1986 to July 1987; therefore, he would have been legally
entitled to a spousal allowance if he had promptly notified the
RO of this marriage.

6.  Failure to make restitution would result in unfair gain to
the veteran, and repayment would not deprive him of the basic
necessities.

7.  The veteran has not changed position to his detriment as a
result of reliance on VA compensation benefits.

CONCLUSIONS OF LAW

1.  The overpayment of compensation benefits in the amount of
$6,056 was not due to error solely on the part of the VA and,
accordingly, the overpayment was properly created.  38 U.S.C.A.
�� 5107, 5112(b)(2), (10) (West 1991); 38 C.F.R. � 3.501(d)(2),
3.660(a) (1993).

2.  Recovery of $320 of the overpayment of compensation benefits
in question would be against the principles of equity and good
conscience.  38 U.S.C.A. �� 5107, 5302 (West 1991); 38 C.F.R.
�� 1.963(a), 1.965(a) (1993).

3.  Recovery of $5,736 of the overpayment of compensation
benefits in question would not be against the principles of
equity and good conscience.  38 U.S.C.A. �� 5107, 5302 (West
1991); 38 C.F.R. �� 1.963(a), 1.965(a) (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran satisfied the threshold requirement of presenting a
well-grounded claim within the meaning of 38 U.S.C.A. � 5107(a).
That is, he set forth a claim which was plausible.  The Board is
also satisfied that all relevant evidence has been properly
developed, and that no further assistance is required to comply
with the VA's duty to assist as mandated by 38 U.S.C.A.
� 5107(a).

The developments leading up to creation of the overpayment at
issue are straightforward and may be briefly set forth.  The
veteran was originally awarded service connection for several
physical disabilities pursuant to rating decision of October
1945.  The combined evaluation assigned to those disabilities was
50 percent.  By way of a rating decision dated in October 1946,
the RO increased the veteran's combined disability evaluation to
70 percent.

In September 1948, the RO sent a letter which endeavored to
assist the veteran in establishing his spouse, if any, as a
dependent for VA compensation purposes.  He was informed that a
marriage certificate should be sent to the RO to establish
dependency.  The following month, the veteran responded with a
marriage certificate reflecting his marriage to Anna in November
1946.  Thereafter, in award letters dated in October 1948 and
February 1957, the veteran was informed that he was in receipt of
an additional benefit based on his status as married.  The RO
also informed him that termination of his marriage might affect
his award, therefore, he was to immediately notify the RO,
otherwise an overpayment might result.

Pursuant to rating decision of August 1959, the RO reduced the
veteran's combined disability evaluation to 60 percent.  That
evaluation has remained in effect until the present time.

Thereafter, an award letter of September 1963 was sent to the
veteran with an enclosed VA Form 21-6755.  That form again
notified the veteran that he was only entitled to a spousal
allowance while his marital status remained unchanged and that he
was to immediately report any status change to the VA.  He was
also informed that additional compensation for his wife would be
discontinued pursuant to her death or their divorce.

A statement dated in July 1965 was received from the veteran the
following month in which he reported his divorce from Anna.  In a
second statement of August 1965, the veteran reported that the
divorce was finalized in April 1965.  An amended award letter of
September 1965 reflected the required reduction in his
compensation benefits due to the loss of a dependent spouse.

In January 1966, the veteran submitted a copy of his marriage
certificate to Juanita which reflected that they were married in
December 1965.  That same month, the RO sent the veteran an
amended award letter which requested that he furnish evidence
showing the dissolution of all of his and Juanita's prior
marriages, in the form of a certified statement.  The RO did not
receive a reply.

In February 1981, the veteran submitted a copy of his and Anna's
April 1965 divorce decree and also divorce decrees which
reflected that Juanita was divorced on two previous occasions.

Pursuant to award letter of April 1981, the RO informed the
veteran, by means of the letter and the enclosed VA Form 21-8764,
that an additional benefit was included for his spouse and that
he was to promptly report any change in the number or status of
dependents.  Pursuant to rating decision of November 1984, an
additional allowance for aid and attendance was added to the
veteran's award on behalf of Juanita.  The RO, accordingly, sent
the veteran another amended award letter and enclosed VA Form 21-
8764 which again informed him that any change in the number or
status of his dependents had to promptly be reported to the VA or
an overpayment might result.

In March 1988, the RO received an application for medical
benefits form from the veteran.  In the section entitled "Marital
Status," the veteran checked the box marked married but then
crossed it out.  He then placed a check in the box marked
divorced.  The RO did not take action based on this information
to adjust the veteran's award.

In January 1990, the RO sent the veteran an amended award letter
and an enclosed VA Form 21-8764 which reiterated that additional
benefits were included for his spouse and that failure to notify
the RO in a prompt fashion of a dependency change would result in
an overpayment.

In August 1991, the RO received a declaration of status of
dependents form from the veteran.  He reported that Juanita died
in December 1985, and he submitted a copy of her death
certificate.  His marital status at the time was specified by him
as widowed.  In September 1991, the veteran was informed that an
overpayment had been created in his compensation account which
totaled $6,465.

In May 1992, the veteran appeared and testified at a hearing
conducted at the RO.  He stated that he notified the VA on two
separate occasions that his wife had died: first in April 1986
and then in July or August of that same year.  The RO told him
that they would contact him for further information but they
failed to do so.  He also specified in that application for
medical treatment that he was divorced.  Since the RO did not
adjust his compensation benefits based on the information
provided on those 3 occasions, he indicated that the RO was
solely at fault with respect to creation of the overpayment.  He
remarried in November 1986 and divorced in July 1987, but did not
inform the VA because he was already receiving an additional
benefit for a spouse and because he did not think the marriage
would last long.

In September 1992, the veteran submitted various certified
documents to the RO.  Among them were divorce decrees which
reflected the veteran's divorce from Sharon in December 1988 and
from Norma in July 1987.  Also submitted were divorce decrees
which showed that Sharon was divorced from Frank Wiseman in April
1988 and that Norma was divorced from Ronald Armitage in January
1982.  During September 1992, the RO contacted the veteran to
request that he provide a copy of marriage certificates
reflecting the dates he married Sharon and Norma.  The veteran
responded the following month with a declaration of status of
dependents form which indicated that he was not presently
married.  He also provided several Certified Abstracts of
Marriage.  One showed that the veteran married Sharon in April
1988 and that she was previously married to Frank Wiseman.  The
other showed that the veteran married Norma in November 1986 and
that she had previously been married to Bob Watson, from whom she
was divorced, and to Gerald Waggoner, who was deceased.

In January 1993, the RO adjusted the veteran's compensation award
to reflect an additional allowance on account of his spouse,
Sharon from May 1, 1988 to December 31, 1988.  He was also
informed that in order to add Norma as a dependent spouse from
December 1, 1986 to August 1, 1987, he was required to furnish a
certified copy of her divorce certificate from Bob Watson and the
death certificate for Gerald Waggoner.  To date, the veteran has
not provided a response that is of record.

I.        Proper creation of an overpayment in the amount of $6,056.

Under the applicable criteria, the effective date of a reduction
or discontinuance of compensation benefits by reason of an
erroneous award based solely on administrative error or error in
judgment shall be the date of the last payment.  38 U.S.C.A.
� 5112(b)(10).  The effective date of a reduction of compensation
by reason of marriage, annulment, divorce, or death of a
dependent of a payee shall be the last day of the month in which
such marriage, annulment, divorce or death occurs.  38 U.S.C.A.
� 5112(b)(2); 38 C.F.R. � 3.501(d)(2).  However, if the divorce
or annulment occurred prior to October 1, 1982, the effective
date of the reduction will be the last day of the calendar year
in which the divorce or annulment occurred.  38 C.F.R.
� 3.501(d)(1).  A veteran who is receiving compensation must
notify the Department of Veterans Affairs of any material change
or expected change in his or her circumstances which would affect
his or her entitlement to receive, or the rate of, the benefit
being paid.  Such notice must be furnished when the recipient's
marital or dependency status changes.  38 C.F.R. � 3.660(a).

In order for the Board to determine that the overpayment was not
properly created, it must be established that the veteran was
legally entitled to the benefits in question, or if there was no
legal entitlement, then it must be shown that the VA was solely
responsible for the veteran being erroneously paid benefits  The
Board finds that the RO properly adjusted the veteran's
compensation award based on the evidence of record pertaining to
his marital history.  Prior to January of 1986, the veteran was
paid compensation benefits at the rate specified for a veteran,
with a dependent spouse who is entitled to an additional
allowance for aid and attendance.  Commencing January 1, 1986,
the RO adjusted the veteran's compensation benefits such that he
was paid at the rate specified for a veteran without a dependent
spouse (this action was necessary due to Juanita's death in
December of 1985).  see 38 U.S.C.A. � 5112(b)(10); 38 C.F.R.
� 3.501(d)(2).  Commencing on May 1, 1988, the RO adjusted the
veteran's compensation benefits (and thereby reduced the
overpayment amount) by reflecting that he should have been paid
at the rate specified for a veteran with a dependent spouse.
This spousal allowance ceased at the end of December 1988, since
the veteran was divorced during that month.  see 38 U.S.C.A.
� 5112(b)(10); 38 C.F.R. � 3.501(d)(2).  Accordingly, it is clear
that the VA properly applied the applicable criteria and the
veteran was paid benefits to which he had no legal entitlement.

In effect, the veteran contends that the VA committed
administrative error by failing to adjust his compensation
benefits to reflect the death of his wife in 1985.  He asserts
that he notified the RO on two occasions in 1986 via telephone
contact of her death.  The RO did not take action to adjust his
award.  He then asserts that he submitted an application for
medical benefits in 1988 which reflected the necessary
information.  However, the RO again did not take action to adjust
his award.  Accordingly, he feels that the VA is solely at fault
with respect to creation of the overpayment.

The Board finds that the RO did not have actual notice of the
death of the veteran's wife until August 1991.  The veteran
asserts that he notified the VA by way of telephone contact that
his wife had died.  However, the folder does not reflect that the
RO received this information.  There is documentation (VA Form
119 - Report of Contact) dated in July 1991 which reflects that
the veteran and the RO were in contact concerning the social
security number of his spouse.  There is no similar documentation
of record reflecting the contents of either purported
conversation with the RO concerning Juanita's death.
Furthermore, the Board observes that until 1985, the veteran's
past practice, during his almost 40 year tenure as a compensation
recipient, has been to contact the RO in writing to inform them
of material changes in his dependency status.  Accordingly, the
Board finds that the RO did not have notice of Juanita's death in
1986.  Moreover, according to the veteran's own testimony, he
most likely knew that his award had not been properly adjusted
following the death of his spouse; thus, he would still be at
fault in the overpayment even if he attempted to notify the VA of
his wife's death.  One can not sit idly by and receive benefits
knowing that he is not legally entitled to those benefits without
taking some action to notify the proper authorities of the
mistake.

Similarly, the VA does not bear sole responsibility for failing
to take action in 1988 to adjust the veteran's compensation
benefits.  The RO did receive information to the effect that the
veteran was divorced pursuant to an application for medical care
submitted in March 1988.  However, the veteran did not submit
this statement with the intent of notifying the VA of a
dependency change.  The stated intent was to apply for outpatient
dental care.  According to the regulatory criteria, the veteran
was required to submit contemporaneous notice of his wife's
death.  Since he failed to do so, the Board may not find that the
VA bears sole responsibility with respect to creation of the
indebtedness.

II.       Entitlement to waiver of recovery of an overpayment of
$6,056.
Pursuant to 38 U.S.C.A. � 5302(c), a finding of fraud,
misrepresentation or bad faith precludes a grant of a waiver of
recovery of the overpayment.  The facts in this case do not show
the presence of any of the preceding factors.  The RO determined
in October 1991 that the veteran's actions did not constitute
fraud, misrepresentation or bad faith.  The Board agrees with
that determination and may, therefore, proceed to determine
whether recovery of the overpayment may be waived.

In the absence of the aforementioned statutory bars to waiver,
recovery of an overpayment of improved pension benefits may be
waived if recovery of the indebtedness from the payee who
received the benefit would be against equity and good conscience.
38 U.S.C.A. � 5302; 38 C.F.R. � 1.963(a).  The equity and good
conscience standard means arriving at a fair decision between the
obligor and the Government.  In making this decision,
consideration is given to the fault of the debtor; balancing of
fault of the debtor against any fault of the VA; whether
collection would deprive the debtor of basic necessities; whether
recovery would nullify the objective for which benefits were
intended; whether failure to make restitution would result in
unfair gain to the debtor; and whether reliance on the benefits
would result in relinquishment of a valuable right or incurrence
of a legal obligation.  38 C.F.R. � 1.965(a).  After considering
these factors, we conclude that partial waiver of recovery of the
indebtedness is warranted.

As to between the veteran and the VA, the Board finds that the
veteran bears significant responsibility for the creation of the
debt.  The veteran was notified of the VA dependency status
reporting requirements on numerous occasions throughout the
years.  While the veteran is considered 60 percent disabled due
to physical disability for VA purposes, there is no indication
that he was impaired in his ability to comprehend the reporting
requirements or that he was declared incompetent for VA purposes.
Prior to 1986, he promptly reported his divorce from Anna and his
benefits were adjusted to reflect the dependency change.  The
Board observes that the veteran was informed of the reporting
requirements as recently as December 1984, through an amended
award letter and the enclosed VA Form 21-8764.  However, the
veteran did not report the death of his wife to the RO until
August 1991.  Even if the veteran tried to contact the RO and
action was not taken to adjust his benefit, he was in receipt of
an additional benefit for a dependent spouse who had died.  He
was not entitled to this money and apparently knew that he was
not so entitled according to his statements and hearing
testimony.  The veteran then failed to inform the RO of his two
subsequent marriages and divorces, despite the fact that he
received an award letter dated in January 1990 which informed him
that he was in receipt of an additional benefit for his spouse.
At that time, the veteran was divorced from his fourth wife.

The veteran's failure to promptly notify the VA of five
dependency status changes (consisting of one death, two marriages
and two divorces) contravenes the reporting requirements set
forth in 38 C.F.R. � 3.660.  Accordingly, the Board finds that
the veteran's fault with respect to creation of the overpayment
outweighs the minimal fault borne by the VA.  The VA bears
minimal fault, with respect solely to the standards of equity and
good conscience, for its failure to carefully peruse the portion
of the medical benefits application form received in March 1988,
to confirm the veteran's marital status.  Otherwise, the VA
properly adjusted the veteran's compensation account as evidence
was received which reflected the veteran's changes in marital
status.

The Board must also consider the veteran's ability to make
restitution of the overpayment  without seriously impairing his
ability to provide himself with life's basic necessities.  In
that regard, the RO received the first financial status report
from the veteran in September 1991, which indicated $1,730.33 in
net monthly income and $1,322.00 in net monthly expenses.  The
latter figure included $280 for rent or mortgage payment, $400
for food, $60 for utilities and heat, $30 for telephone, $25 for
clothing, $100 for automobile expenses (gas and insurance) and
$427 in monthly payments on installment contracts and other
debts.  Income consisted of $335.33 in retirement benefits, $803
from Social Security and $592 in VA compensation benefits.  The
veteran was in retirement status as of December 1979.  Assets
consisted of $400 cash in the bank, $15 cash on hand and
furniture and household goods with a resale value of $200.
Installment contracts and other debts which remained owing
totaled $10,978 and the veteran reported that the amount past due
was $6,000.

The veteran submitted a second financial status report in March
1992.  He reported $1,652.33 in net monthly income and $1713.19
in net monthly expenses (the veteran reported monthly expenses
which totaled $1,433.19; however, the expenses reported by him
actually total $1,713.19).  The latter figure included an
unchanged rent or mortgage payment, $500 for food, $80 for
utilities and heat, $25 for telephone, $83 for insurance (car and
home owners), $50 for clothing, $27.19 for cable television, $200
for unspecified miscellaneous expenditures and $468 in monthly
payments on installment contracts and other debts.  Income
consisted of $335.33 in retirement benefits, $803 from Social
Security and $514 in VA compensation benefits.  Assets consisted
of furniture and household goods with a resale value of $1,000
and an automobile with a resale value of $2,500.  Installment
contracts and other debts which remained totaled $11,100 and the
veteran reported that there were no amounts past due.

The veteran submitted a third financial status report in October
1992.  This form indicated $1,690.33 in net monthly income and
$1,691.02 in net monthly expenses.  The latter figure included an
unchanged rent or mortgage payment, $290 for food, $120 for
utilities and heat, $30 for telephone expenses, $50 for
insurance, an unchanged clothing expenditure, $50 for non
reimbursable medical expenses, $85 for his church, $220 for
automobile expenses (gas and repairs) and $516.02 in monthly
payments on installment contracts and other debts.  Income
consisted of $335.33 in retirement benefits, $841 from Social
Security and $514 in VA compensation benefits.  Assets consisted
of furniture and household goods with a resale value of $100 and
an automobile worth $1,000.  Installment contracts and other
debts which remained owing totaled $11,100 and the veteran
reported that no amounts were past due.

While the veteran does not have a balance remaining at the end of
each month, the Board has noted that he pays $516 each month for
installment contracts and other debts.  A debtor of the federal
government is expected to provide the same consideration to
repayment of that indebtedness as that provided to repayment of
private debts.  Moreover, the most recent financial status report
shows that no amounts owed by the veteran are past due, while a
prior financial status report reflected an arrearage of $6,000.
It would appear that the veteran's financial situation has
improved to such an extent that he is capable of repaying the VA
indebtedness without depriving himself of life's basic
necessities.

The Board further finds that failure to make restitution, of that
portion of the overpayment totaling $5,736, would result in
unfair gain to the veteran.  He would realize an unfair gain
primarily because of his substantial degree of fault in the
creation of the debt and his lack of financial hardship.
Furthermore, the VA made erroneous spousal allowance payments to
the veteran which he failed to rectify.  As to the question of
whether recovery of the overpayment would defeat the purpose for
which the benefits were intended, the Board notes that the
veteran continues to receive compensation benefits' however,
these are not the sole source of his monthly income.  Under such
circumstances, this element of the equity and good conscience
standard is not considered to be of such significance as to
outweigh those other elements which favor the government's right
to collect the overpayment.  Finally, the veteran has not
alleged, nor do the facts show, that reliance on his VA benefits
resulted in relinquishment of a valuable right or incurrence of a
legal obligation.

The Board concludes that the facts of this case, when weighed
against the various elements to be considered, demonstrate that a
recovery of $5,736 of the overpayment of benefits would not be
against equity and good conscience.  However, it would be against
the principles of equity and good conscience for the VA to
recover that portion of the indebtedness which dates from
December 1,1986 to August 1, 1987 ($320).  During that time
period, the veteran was married to Norma.  Accordingly, he would
have been entitled to a spousal allowance (without an additional
aid and attendance benefit), if he had promptly notified the RO
that he was married.  The Board observes that the principles of
equity and good conscience enunciated above are not all
inclusive.  Accordingly, the Board may properly conclude that it
would be unfair to insist that the veteran repay that portion of
the overpayment which was created during his legal marriage to
Norma (notwithstanding his failure to provide evidence of Norma's
prior divorces).
Recovery of that portion of the overpayment amount which totals
$320 would be against the principles of equity and good
conscience.

ORDER

An overpayment of compensation benefits in the amount of $6,056
was properly created; and waiver of recovery of $5,736 of the
overpayment amount is denied, while waiver of recovery of $320 of
the overpayment is granted on the basis of equity and good
conscience.

          C. W. SYMANSKI
          Member, Board of Veterans' Appeals

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

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


series: legacy

judge_norm: N R ROBIN

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
BVA9501001
DOCKET NO.  91-46 218     )       DATE
          )
          )

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

THE ISSUE

Entitlement to service connection for an acquired psychiatric
disorder.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Suzie St. Vil, Associate Counsel

INTRODUCTION

The veteran had active military service from March 1969 to
January 1972.  He has been represented throughout his appeal by
the Disabled American Veterans.

This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a rating decision of August
1989, by the St. Petersburg, Florida Regional Office (RO), which
denied the veteran's claim for service connection for a nervous
disorder.  The veteran appeared and offered testimony at a
hearing before a hearing officer at the RO in October 1990.  A
transcript of the hearing is of record.  The hearing officer's
decision was entered in October 1990, confirming the previous
denials of the veteran's claim for service connection for a
nervous disorder.  The appeal was received at the Board in
October 1991.

In October 1992, the Board remanded the case to the RO for
further development.  Some of the evidentiary development
undertaken by the RO pursuant to the October 1992 remand had
negative results.  The appeal was received back at the Board in
October 1993.  In August 1994, the case was referred to the
representative organization for comments regarding a private
medical statement submitted in November 1993 which was not
considered by the RO.  In written arguments submitted in December
1994, the representative waived RO's consideration of the above-
cited evidence.

REMAND

As noted above, this case was previously remanded by the Board in
order to obtain development of the record.  Although the RO
undertook such action that was requested by the Board, it appears
from recent communications from the veteran, as well as a
statement from his private physician, submitted directly to the
Board, that further development is warranted.  The Board
recognizes that such will delay final adjudication of this case,
but deems a remand necessary in order to comply with VA's duty to
assist the veteran in the development of his well-grounded claim.

From a review of the claims folder, the Board notes that the
veteran, at times, has expressed disagreement with the diagnosis
of his condition, asserting, for example, in January 1990 that he
was not a paranoid schizophrenic and that he was "not applying
for a disability rating based on that erroneous reading of the
evidence."  In his most recent letter of October 1993, Neil T.
Feldman, M.D. opined, based on the veteran's history, that the
veteran had a sleep disorder, obstructive sleep apnea, which was
present during military service and, further, that the veteran's
continuing excessive daytime sleepiness "complicated" his
psychiatric problems.

In view of the veteran's assertions regarding the nature of the
disability for which he seeks service connection, and in order to
ensure that the Board has a full record prior to appellate
review, the case is REMANDED for the following actions:

1.  In view of the assertions made by the
veteran, he should be asked whether he
wishes to claim entitlement to service
connection for a sleep disorder separate
and distinct from any acquired psychiatric
disability.

2.  Another effort should be made to obtain
the records of treatment from St. Anthony's
Hospital, St. Petersburg, FL, in 1975, as
well as from the facility identified by the
veteran as "Eric Linderman Hospital,"
located in Boston, MA, in 1975 and 1976.
(Information available to the Board
reflects that the name of this facility has
been changed to Massachusetts Commonwealth
Mental Health Department.)

3.  In the event the veteran has received
recent treatment, VA or private, for his
psychiatric disorder, up-to-date records
should be obtained.

4.  In addition, Dr. Feldman should be
contacted and requested to provide copies
of all clinical records relating to his
evaluation and treatment of the veteran.
When these records have been secured, they
should be made a part of the claims folder.

5.  Thereafter, the veteran should be
afforded VA psychiatric examination in
order to clarify the correct diagnosis(es)
in this case.  Prior to the examination,
the examiner should be given the
opportunity to review the entire claims
folder.  All appropriate psychological
tests should be conducted.  The examiner is
requested to comment on the relationship,
if any, between the obstructive sleep
apnea, diagnosed by Dr. Feldman, and any
acquired psychiatric disorder found to
exist.

6.  Thereafter, the RO should again review
this case and take further adjudicative
action.  In the event that the veteran has
signaled his intent to claim service
connection for a sleep disorder, separate
and distinct from a psychiatric disorder,
consideration of that claim should be made
as well.  In the event the determination(s)
remains unfavorable to the veteran, both he
and his representative should be furnished
a supplemental statement of the case,
containing a recitation of the newly
received evidence and the reasons and bases
for the decision reached.  It is imperative
that the RO comply with all appropriate
appellate procedures, in the event the
veteran claims a sleep disorder as a
separate disability.  The veteran and his
representative should be given the
requisite amount of time within which to
respond.

Thereafter, the case should be returned to the Board for further
appellate review, if in order.  The appellant need take no action
until he is notified.  The purposes of this remand are to further
develop the record and to afford the appellant due process of
law.  The Board intimates no opinion, either legal or factual, as
to the ultimate determination warranted in this case.

          N. R. ROBIN
          Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. � 20.1100(b) (1993).


judge_norm: G H SHUFELT

disposition: granted

text: The appeal is granted.

text:
BVA9503001
DOCKET NO.  89-46 485     )       DATE
          )
          )

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

THE ISSUE

Entitlement to special monthly compensation by reason of being in
need of regular aid and attendance.

REPRESENTATION

Appellant represented by: Eduardo Morales Soto, Attorney
at Law

ATTORNEY FOR THE BOARD

P. B. Werdal, Associate Counsel

INTRODUCTION

The veteran reportedly served on active duty from November 1950
to October 1953.

This matter came before the Board of Veterans' Appeals (Board) of
the Department of Veterans Affairs (VA) on appeal from a decision
dated February 16, 1989, from the San Juan, Puerto Rico, Regional
Office (RO).  The notice of disagreement was received in March
1989.  The statement of the case was sent to the veteran in May
1989.  The substantive appeal was received in September 1989.

This case was previously before the Board and was remanded in
February 1990.

The Board notes there are other claims, namely, requests for
apportionment, waiver of indebtedness, and for increased ratings
for the veteran's service-connected urethral stricture and
pyelonephritis, in various stages of development in this file.
Those claims are not in appellate status, and are not
inextricably intertwined with the claim identified on the front
page of this document.  Therefore, they are referred to the RO
for appropriate action.

The Board also observes that it has been argued on the veteran's
behalf that he sustained additional injury in 1961 during a
procedure performed at a non-VA medical facility for treatment of
pyelonephritis (which is service-connected).  Based on these
contentions, there are questions as to whether claims have been
presented under the provisions of 38 U.S.C.A. � 1151 (West 1991)
and/or 38 C.F.R. � 3.310(a) (1993).  Such claims have not been
developed and are not currently in appellate status.  The agency
of original jurisdiction is invited to review the record with
regard to these claims and take any action found to be
appropriate.

The Board notes that in October 1991 a claim for an earlier
effective date for the veteran's total disability rating was
raised on the veteran's behalf.  However, that claim has not been
developed and adjudicated, and the Board refers it to the RO for
appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran currently receives special monthly compensation by
reason of being housebound, and has received that benefit since
1970.  It is contended on his behalf that he requires regular aid
and attendance as the result of his disabilities, particularly
his psychiatric disability, and so he now seeks special monthly
compensation based on his claimed need for regular aid and
attendance in addition to the disability compensation he is
eligible to receive for his service-connected disabilities.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's basic claims
file consisting of four separate folders.  Based on its review of
the relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
veteran has established a factual need for regular aid and
attendance, and he is entitled to special monthly compensation
based on the need for regular aid and attendance.

FINDINGS OF FACT

1.  The veteran has the following service-connected disabilities:
schizophrenia, chronic, undifferentiated type, rated 100 percent
disabling from March 1970; urethral stricture, rated 30 percent
disabling since March 1970; pyelonephritis, rated 30 percent
disabling since September 1961; and duodenal ulcer disease,
schistosomiasis, rated 20 percent disabling since October 1967.
He also has the following nonservice-connected disabilities:
bladder neck contracture, an appendectomy scar and
neurodermatitis.  He has been entitled to special monthly
compensation by reason of being housebound under 38 U.S.C.A.
� 1114(s) (West 1991); 38 C.F.R. � 3.350(i) (1993), since 1970,
and has been deemed incompetent for VA purposes since November
1988.

2.  The veteran's disabilities render him unable to protect
himself from the hazards of everyday living.

CONCLUSION OF LAW

The veteran is entitled to special monthly compensation due to a
need for regular aid and attendance.  38 U.S.C.A. �� 1114(r),
5107(b) (West 1991); 38 C.F.R. � 3.352 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran in this case reportedly served on active duty from
November 1950 to October 1953.  He has the following disabilities
that have been adjudicated service-connected:  schizophrenia,
chronic, undifferentiated type, rated 100 percent disabling from
March 1970; urethral stricture, rated 30 percent disabling since
March 1970; pyelonephritis, rated 30 percent disabling since
September 1961; and duodenal ulcer disease, schistosomiasis,
rated 20 percent disabling since October 1967.  He also has the
following nonservice-connected disabilities:  bladder neck
contracture, an appendectomy scar and neurodermatitis.  He has
been entitled to special monthly compensation by reason of being
housebound under 38 U.S.C.A. � 1114(s) (West 1991); 38 C.F.R.
� 3.350(i) (1993), since 1970, and has been deemed incompetent
for VA purposes since November 1988.

The veteran currently receives VA benefits based on the fact that
he satisfies the criteria for special monthly compensation by
reason of being housebound.  It is argued on his behalf that he
requires the regular aid and attendance of others.  The law
provides a greater benefit to be paid to veterans with service-
connected disabilities who require regular aid and attendance and
who meet the criteria set out in 38 U.S.C.A. � 1114(r) (West
1991); 38 C.F.R. � 3.352 (1993).  In particular, a veteran who is
permanently bedridden or so helpless as to be in need of regular
aid and attendance may receive both the regular disability
compensation benefit and a special monthly compensation benefit.
38 U.S.C.A. � 1114(l)(o)(r) (West 1991).  That combination of
benefits is what the veteran seeks in this appeal.

The basic criteria for regular aid and attendance consist of the
following:  the veteran's inability to dress or undress himself,
or to keep himself ordinarily clean and presentable; frequent
need of adjustment of orthotics; inability to feed himself
through loss of coordination of upper extremities or through
extreme weakness; inability to attend to the wants of nature; or
incapacity, physical or mental, which requires care or assistance
on a regular basis to protect the claimant from hazards or
dangers incident to his daily environment.  It is not required
that all of the disabling conditions enumerated above be found to
exist before a favorable rating may be made.  The particular
personal functions which the veteran is unable to perform should
be considered in connection with his condition as a whole.  It is
only necessary that the evidence establish that the veteran is so
helpless as to need regular aid and attendance, not that there be
a constant need.  Determinations that the veteran is so helpless
as to be in need of regular aid and attendance will not be based
solely upon an opinion that the claimant's condition is such as
would require him to be in bed.  They must be based on the actual
requirement of personal assistance from others.  38 C.F.R.
� 3.352(a) (1993).

The evidence does not suggest, nor has it been argued, that the
veteran is bedridden.  He has no physical impairment that hinders
his ability to walk.  However, medical evidence submitted on the
veteran's behalf shows that his psychiatric condition in and of
itself has become totally disabling, rendering him unable to
adapt socially and industrially.  At issue on this appeal is
whether, in addition to total social and industrial
inadaptability, the veteran is also unable to perform daily
functions inside his home on his own.  A VA Form 10-1000,
Discharge Summary (Inpatient Care), prepared incident to the
period of observation and evaluation that began November 29,
1985, and ended January 14, 1986, includes a statement to the
effect that the veteran, when told to go somewhere, had to be
accompanied by someone because he became confused.  The report
also contains the following assessment:

Patient is severely disabled due to his NP
condition and his deterioration grossly of
his intellectual capacity.  Patient cannot
hold a gainful employment, patient cannot
work and cannot study.  Patient is totally
incapacitated.  Patient needs to be care[d]
[for] most of the time, because he has to
be help[ed] while dressing, he has to
help[ed] when going to the bathroom.
Sometimes he has to be help[ed] when he
transfers from a bed to a chair.  He
presents incontinence of urine and
sometimes he has to be aided while feeding.

A report dated in October 1987 from A. Hurtado de Mendoza, M. D.,
a psychiatrist who first examined the veteran in August 1986,
reflects that the veteran is totally disabled regarding
performing daily activities, and that his condition has not
improved since he began treating him.  In a VA Form 21-2680,
Examination for Housebound Status or Permanent Need for Regular
Aid and Attendance, dated in May 1988, the examiner stated that,
because of his mental condition, the veteran needed aid and
supervision in all of his daily needs.  In another psychiatric
examination in May 1988 it was concluded that the veteran was
incompetent for VA purposes, but that he was not considered to
really need close supervision.  In a report dated in March 1989,
Dr. Mendoza reported that the veteran's condition had not
improved:  the veteran looked confused and disoriented as to time
and place.  Content of thought showed ideas of reference and
persecutory delusions.  He had auditory hallucinations.  His
judgment, intellectual functioning and memory were very poor.
Affect was flat.  He had no insight into his mental condition.

Pursuant to the Board's remand, a VA examination was scheduled
for April 1990.  The veteran came to the examination with his
daughter, but was nonresponsive to questions posed by the
psychiatrist.  Her diagnosis was deferred pending the results of
a social and industrial survey.  The social and industrial survey
revealed that the veteran eventually spoke to the investigator,
but his responses were for the most part irrelevant, so she had
to seek information from his family members, with whom he lives.
They reported that he is not interested in basic things such as
personal hygiene, meals, use of money or treatment.  They say he
is closed in his room most of the time, and has few community
contacts.  Sometimes he sleeps well, sometimes he does not.  They
stated that he has paranoid ideas regarding meals and medicines,
and won't let his wife assist in his meal preparation or in his
care.  A neighbor interviewed stated the veteran was considered a
quiet, if rare, non-problematic neighbor with poor contacts and
community participation.  The psychiatrist reviewed the findings
of the social and industrial survey and concluded that the
veteran is not functioning adequately and is incompetent to
handle VA funds.  She did not report an opinion as to whether the
veteran was in need of regular aid and attendance.

The veteran reported for an examination on January 29, 1993, but
did not cooperate with the examiner, who reported he overturned a
chair, kicked a desk, then left the office.  Apparently the other
examinations scheduled for the veteran on that date were
canceled.  In addition to the psychiatric condition discussed
above is his service-connected urethral stricture, which
reportedly causes urinary retention and requires frequent
dilatations.  The urologist who has treated him since
approximately 1966 for that condition submitted a document
listing the 76 dates through 1985 on which he had to perform such
dilatations.  The veteran is also service-connected for
pyelonephritis, but symptoms of that condition were not detected
in the genitourinary examination performed in May 1991.

Based on the foregoing, the Board believes that the veteran's
service-connected psychiatric disability per se accounts for
significant overall impairment of the veteran which necessitates
regular assistance by his family to protect him from the hazards
of his environment.  The veteran is consistently disoriented and
unable to understand the nature of any hazards he might encounter
in his daily environment.  Accordingly, special monthly
compensation by reason of being in need of regular aid and
attendance is warranted.  38 U.S.C.A. �� 1114, 5107(b) (West
1991); 38 C.F.R. � 3.352 (1993).

ORDER

The appeal is granted.

          G. H. SHUFELT
          Member, Board of Veterans' Appeals

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

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


judge_norm: J E DAY

text:
BVA9504001
DOCKET NO.  93-06 925     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota

THE ISSUE

Entitlement to service connection for an organic mental disorder.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

R. T. Jones, Counsel

REMAND

The veteran had active duty from June 1979 to January 1983.

The primary issue in this case is a medical question:  did the
veteran's 1981 head injury in service cause his current mental
disorder?  This question was addressed by a board of Department
of Veterans Affairs (VA) specialists in May 1992.  However, the
record as currently constituted is incomplete.  First, there is a
report from the Social Security Administration indicating a
favorable decision based on certain, listed medical records.
Some of these records are not in the claims file and may be
relevant to the question of causation.  These must be obtained
prior to final consideration.  Murincsak v. Derwinski, 2 Vet.App.
363 (1992).  Second, there are some VA medical records dated in
January and February 1993 showing the veteran was evaluated to
determine whether his mental disorder was traumatic in origin.
The most recent of these states "[s]peech consult pending and MRI
to be scheduled prior to final reports."  The additional tests
and final report, if any, are not on file.  These must be
obtained prior to final consideration.  Murphy v. Derwinski,
1 Vet.App. 78 (1990).

To ensure that VA has met its duty to assist the appellant in
developing the facts pertinent to the claim, the case is REMANDED
to the regional office (RO) for the following development:

1.  The RO should obtain the medical
records underlying the above-mentioned
Social Security decision.  Some are on
file, but those of the following are not:
Greg Peterson, M.D.; A. Becker, M.D.; and
Vinland Center.

2.  The RO should obtain any outpatient or
inpatient records of VA treatment in or
after February 1993, including the further
tests and final report referenced above.

3.  After obtaining these records, the RO
should refer the entire claims file back to
the board of specialists who reviewed the
case in May 1992, asking that the
additional records be noted and that the
original opinion be confirmed or amended as
the Board sees fit.

After RO review, if the claim remains denied, a supplemental
statement of the case should be prepared, and the veteran and his
representative should be given an opportunity to respond to it.
Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate outcome
of this case.  The appellant need take no action unless otherwise
notified.

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

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. � 20.1100(b) (1993).


judge_norm: CHARLES E HOGEBOOM

text:
BVA9506001
DOCKET NO.  93-16 229     )       DATE
          )
          )

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

THE ISSUE

Entitlement to special monthly pension based on the need for
regular aid and attendance of another person.

REPRESENTATION

Appellant represented by:  Disabled American Veterans

ATTORNEY FOR THE BOARD

B. Anderson, Counsel

REMAND

The appellant had active duty from September 1951 to June 1953.
This appeal arises from a September 1992 rating decision of the
Waco, Texas, regional office (RO).  In that decision, the RO
determined that the evidence was insufficient to show factual
need of the appellant for aid and attendance.

The decision and the statement of the case (SOC) indicate that
the evidence considered essentially consisted of July 1992
outpatient progress notes reflecting the severity of the
appellant's vision impairment.  No special examination to
determine the need for regular aid and attendance of another
person was conducted, although the appellant contends that he
requires daily assistance in most of his activities of daily
living.  38 U.S.C.A. � 5107(a) (West 1991).  The SOC does not
include a discussion of how cited laws and regulations affected
the agency's decision..  38 U.S.C.A. � 7105(d)(1)(B) (West 1991).

To ensure that the Department of Veterans Affairs (VA) has met
its duty to assist the appellant in developing the facts
pertinent to the claim and to ensure full compliance with due
process requirements, the Board is persuaded that further
development is warranted.  Accordingly, case is REMANDED to the
RO for the following actions:

1.  The RO should take appropriate action
to ensure that current records of any
medical treatment received by the
appellant, particularly reports of VA
treatment, have been requested and
associated with the claims folder.

2.  The appellant should then be afforded a
VA examination to evaluate his current need
for regular aid and attendance.  All
indicated special tests and studies should
be conducted, and clinical findings should
be recorded in detail.  The claims folder
should be made available to the examiner
for review before the examination.  The
examiner should be requested to provide on
opinion as to whether the appellant is able
to perform the various activities of daily
living without assistance of another
person.

After the development requested above has been completed to the
extent possible, the RO should again review the record.  If the
benefit sought on appeal remains denied, the appellant and
representative should be furnished a supplemental SOC and given
the applicable opportunity to reply.  Thereafter, the case should
be returned to the Board, if in order.  The Board intimates no
opinion as to the ultimate outcome of this case.  The appellant
need take no action until so notified.

          CHARLES E. HOGEBOOM
          Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This action has been taken in
accordance with the Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 303, 108 Stat. 4645, ___ (1994), and is in
the nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.  38 C.F.R.
� 20.1100(b) (1994).


judge_norm: GEORGE R SENYK

condition: neck

text: Service connection was initially granted for disability characterized as fracture of the cervical vertebrae. In January 1949, the service connected entity was recharacterized as osteo- arthritic changes with fusion of the 4th and 5th cervical vertebrae, with subjective symptoms of numbness of thigh muscles and left arm (traumatic). [is remanded]

text:
BVA9508001
DOCKET NO.  93-12 185     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Albuquerque,
New Mexico

THE ISSUES

1.  Entitlement to service connection for a neurological disorder
encompassing pathology which includes neurological impairment of
the upper and lower extremities and loss of bowel and bladder
control.

2.  Entitlement to secondary service connection for a psychiatric
disorder.

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

Christopher B. Moran, Counsel

INTRODUCTION

The veteran served on active duty from September 1942 to July
1944.  The veteran and his representative appear to have raised
claims of entitlement to an increased rating for cervical spine
disability and entitlement to a total rating based on individual
unemployability.  Those matters are referred to the RO for
appropriate action.

REMAND

The Board of Veterans' Appeals (Board) notes that the RO has
characterized the issues certified on appeal as "service
connection for a psychiatric disorder secondary to cervical
spine." and "whether a new factual basis exists to establish
service connection for quadriplegia or loss of bowel and bladder
[control] due to cervical spine".  The veteran's representative
objects to this characterization of the issues.  The Board
agrees.

Service connection was initially granted for disability
characterized as fracture of the cervical vertebrae.  In January
1949, the service connected entity was recharacterized as osteo-
arthritic changes with fusion of the 4th and 5th cervical
vertebrae, with subjective symptoms of numbness of thigh muscles
and left arm (traumatic).

In conjunction with the veteran's claim for increased
compensation, the RO, in a rating in February 1980, determined
that peripheral neuropathy was not service connected.  The
veteran appealed the denial of an increased rating for his
cervical spine disability and service connection for peripheral
neuropathy of hands and feet.  The case came before the Board in
June 1981, at which time the Board noted the January 1949 rating
decision, noted that service connection was in effect for
extremity numbness, and remanded the case, ordering that the
veteran's cervical spine disability be reevaluated to encompass
symptoms of extremity numbness.

In a rating decision of October 1981, the RO increased the
evaluation of the veteran's service connected cervical disorder
to 30 percent and continued the
denial of service connection for peripheral neuropathy of hands
and feet.  The letter informing the veteran of this rating
stated, "On the basis of the increased rating assigned, it is
believed that your appeal is satisfied unless, we hear to the
contrary within 30 days."  There was no mention of peripheral
neuropathy in the letter.  The rating decision noted that
myelopathy was encompassed in the rating under Code 5290.

The actions of the RO in 1981 were inconsistent.  If recognition
of myelopathy in the rating was in response to the Board order in
the June1981 Remand to consider symptoms of extremity numbness in
rating the cervical spine disability, then it was improper to
continue the denial of service connection for peripheral
neuropathy of the hands and feet.  If, on the other hand, the RO
determined that service connection for peripheral neuropathy was
not warranted, then the rating in October 1981 was not a grant of
the benefits sought on appeal; the veteran should not have been
informed that it was; and the case should have been returned to
the Board for further appellate review.

Since the RO has continued to list peripheral neuropathy as not
service connected, it is clear that the veteran's appeal has
remained pending since 1981 and the claim should not have been
characterized as an attempt to reopen.

In light of the foregoing, and because the medical evidence of
record is inadequate to resolve the issues before us, we have
recharacterized the issues as stated and REMAND the case for the
following:

1.  The RO should arrange for the veteran
to undergo a neurological evaluation by a
board certified neurologist.  The purpose
of the examination is to determine the
nature and probable etiology of any
neurological impairment the veteran may
have.  The veteran's claims folder must be
available to and reviewed by the examiner
prior to the examination so that the
examiner has a historical perspective of
the veteran's neurological disability.  Any
tests or studies needed for a complete
assessment of the veteran's disability
should be done.  The examiner should state
the diagnoses and probable etiology for any
neurological pathology found.  The examiner
should also provide an opinion as to
whether any neurological pathology found
may reasonably be dissassociated from the
veteran's service connected residuals of
cervical fracture with osteoarthritic
changes with fusion of the fourth and fifth
cervical vertebrae and symptoms of numbness
in the lower and upper extremities.  The
examiner should differentiate which
neurological pathology may be disassociated
from the service connected entity and which
pathology may not, providing complete
rationale for any opinion given.  A copy of
this REMAND should specifically be provided
to the examiner.

2.  When the above is completed, the
veteran should be afforded an examination
by a specialist in psychiatry to determine
the nature and probable etiology of any
psychiatric disorder he may have.  The
examiner should specifically comment
whether there is an etiologic relationship
between any current acquired psychiatric
disorder and the veteran's service-
connected cervical disability.

3.  All examinations should be conducted in
strict accordance with the pertinent
chapters and sections of the VA Physician's
Guide for Disability Evaluation
Examinations.  A comprehensive report with
attention to a history of the veteran's
disorders should be furnished.  The claims
file must be made available to the
examiners prior to consultation with the
veteran.

When this development has been completed to the extent possible,
the RO should review the results to ascertain if all development
requested is completed.  If not, the RO should ensure that it is.
Then the RO should review the issues as they are characterized on
the first page of this REMAND.  If any benefit sought on appeal
is not granted, the veteran and his representative should be
given an appropriate supplemental statement of the case and
adequate opportunity to respond.  The case should then be
returned to the Board for further consideration.  No action by
the veteran is required until he is notified.

          GEORGE R. SENYK
          Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. � 20.1100(b) (1994).


judge_norm: STEPHEN L WILKINS

text:
BVA9509001
DOCKET NO.  93-11 530     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida

THE ISSUES

1.  Entitlement to an increased rating for bilateral trench foot,
currently rated as 30 percent disabling.

2.  Entitlement to service connection for bilateral defective
hearing.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

K. E. Harrison, Associate Counsel

INTRODUCTION

The veteran had active military service from April 1943 to August
1945.  This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1991 and February 1992 rating
decision by the RO.

REMAND

The veteran's service medical records show that in May and June
of 1945 he was treated for otitis media.  Although service
medical records are negative for any complaints or treatment for
hearing loss, the veteran has testified under oath at a June 1992
RO hearing that his ear bled after exposure to shellfire in
service.  An October 1994 outpatient treatment report assessed
that the veteran's high frequency hearing loss was consistent
with the patient's history of noise exposure.

The evidence of record also shows that in October 1994, the
veteran underwent a right medial graft tympanoplasty with partial
ossicular replacement prosthesis.  A postoperative diagnosis of
right tympanic membrane retraction pocket with conductive hearing
loss was made.  The veteran has been granted service connection
for bilateral nonsuppurative otitis media.

The Board finds that the November 1991 VA examination of the
veteran's bilateral trench foot is inadequate for purposes of
evaluating the current level of disability.  The veteran should
undergo another VA examination which is complete and thorough.

In view of the foregoing, the case is REMANDED to the RO for the
following actions:

1.  The veteran should be afforded an
examination for VA by a specialist in ear,
nose and throat diseases in order to
ascertain the nature and likely etiology of
any current hearing loss.  The examiner
should review the veteran's records and
obtain a complete history from the veteran,
and complete audiometric testing should be
done in this regard.  The examination
should be conducted in accordance with the
VA Physician's Guide for Disability
Evaluations (IB 11-56, March 1, 1985)
Based on her/his findings, the examiner
should offer an opinion as to the medical
probability that the veteran's current
hearing loss is the result of either the
exposure to increased noise levels during
combat service or the already service-
connected otitis media.

2.  The veteran should also undergo an
examination by a VA podiatrist to ascertain
the current severity of his service-
connected bilateral trench foot disability.
Detailed findings should be reported by the
examiner, who should offer her/his opinion
as to the degree of disability that is
present.  The examination should conform to
the requirements of the VA Physician's
Guide for Disability Evaluation
Examinations (IB 11-56, March 1, 1985).
All indicated testing should be done in
this regard.  All clinical findings should
be reported in detail.

3.  When the foregoing development has been
completed, the claims should be reviewed by
the RO.  If the decision remains adverse to
the veteran, a supplemental statement of
the case should be prepared and the veteran
should be given a reasonable period of time
for reply thereto.

Thereafter, the claims should be returned to the Board for
further appellate review, if in order.  No action is required of
the veteran until he receives further notice.  The purpose of
this REMAND is to obtain additional information.  The Board does
not intimate any factual or legal conclusions as to the outcome
ultimately warranted in this appeal.

STEPHEN L. WILKINS
          Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. � 20.1100(b) (1994).


judge_norm: MICHAEL D LYON

disposition: denied

text:
BVA9510001
DOCKET NO.  93-14 964     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Fargo,
North Dakota

THE ISSUE

Entitlement to an evaluation in excess of 10 percent for
pleurisy.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Melissa F. Marquez, Associate Counsel

INTRODUCTION

The appellant had active service from November 1942 to
February 1946.  This matter came before the Board of
Veterans' Appeals (hereinafter Board) on appeal from a March
1992 rating decision of the Fargo, North Dakota Regional
Office (hereinafter RO), of the Department of Veterans
Affairs (hereinafter VA), which denied entitlement to an
evaluation in excess of 10 percent for pleurisy.

The Board's decision is limited to the issue developed for
appellate review.  Kellar v. Brown, 6 Vet.App. 157 (1994).
It is apparent from the record, however, that the appellant
raised claims for entitlement to service connection for
chronic sinusitis and a cardiovascular disability.  These
claims were denied in a February 1993 rating decision.  In
addition, it is unclear from the appellant's 1992 sworn
testimony whether he intends to raise a claim for a permanent
and total disability evaluation for pension purposes.  If so,
he should contact the RO, and the RO should then take
appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends, in essence, that he is entitled to an
evaluation in excess of 10 percent for his service-connected
pleurisy.  He argues that he currently suffers from recurrent
pulmonary infection, shortness of breath, weakness, lack of
energy, and cardiac embarrassment as a result of his service-
connected disability.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the appellant's claims
file.  Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the appellant's claim for entitlement to an
evaluation in excess of 10 percent for pleurisy.

FINDINGS OF FACT

1.  All available, relevant evidence necessary for
disposition of the appeal has been obtained by the RO.

2.  Pleurisy is currently manifested by subjective complaints
of recurrent pulmonary infection, shortness of breath, lack
of energy, and related cardiac embarrassment.  The objective
evidence of record, including pulmonary functions studies and
x-ray, indicate mild obstructive airway disease of the
peripheral airways.  Examination of the chest revealed a
clear right lung, with crackles in the left lateral lung due
to calcification secondary to old healed pneumonia and/or
emphysema.

3.  There is no objective clinical evidence of more than
moderate respiratory disease, nor marked dyspnea or cardiac
embarrassment attributable to the appellant's service-
connected pleurisy.

4.  The appellant's service-connected pleurisy does not
present such an unusual disability picture as to render
application of the regular rating schedule provisions
impractical.

CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for
pleurisy have not been met.   38 U.S.C.A. �� 1155, 5107 (West
1991); 38 C.F.R. �� 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.96,
4.97, Part 4, Diagnostic Codes (DC) 6810, 6811 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, we find that the appellant's claim is well
grounded within the meaning of 38 U.S.C.A. �5107(a) (West
1991), in that he has presented a claim which is plausible.
This being so, we must examine the record to determine
whether the VA has a further obligation to assist in the
development of facts pertinent to his claim.  38 U.S.C.A.
�5107(a) (West 1991).

The evidentiary record contains complete service medical
records, as well as all available private treatment records
reported by the appellant.  In addition, VA examination
reports with accompanying pulmonary function (PF) studies and
x-ray reports dated in February and October 1992 are
associated with the claims folder.  Finally, a personal
hearing was conducted in August 1992.  We are satisfied,
therefore, that all relevant facts have been properly
developed and that no useful purpose would be served by
remanding the case with instructions to provide additional
assistance to the appellant, as the medical reports of record
provide a complete history of such respiratory disability,
particularly as it affects the ordinary conditions of daily
life, as required by provisions of 38 C.F.R. �� 4.1, 4.2,
4.10 and other applicable provisions.  Schafrath v.
Derwinski, 1 Vet.App. 589 (1991).

In adjudicating a well-grounded claim, the Board determines
whether (1) the weight of the evidence supports the claim or
(2) the weight of the "positive" evidence in favor of the
claim is in relative balance with the weight of the
"negative" evidence against the claim.  The appellant
prevails in either event.  However, if the weight of the
evidence is against the appellant's claim, the claim must be
denied.  38 U.S.C.A. � 5107(b) (West 1991); 38 C.F.R. � 3.102
(1994); Gilbert v. Derwinski 1 Vet.App. 49 (1990).

Disability evaluations are determined by the application of a
schedule of ratings which is based upon an average impairment
of earning capacity.  38 U.S.C.A. � 1155 (West 1991); 38
C.F.R. � 4.1 (1994).  Separate diagnostic codes identify the
various disabilities.  However, rating the same disability
under different diagnostic codes is to be avoided.  38 C.F.R.
� 4.14 (1994).  Where there is a reasonable doubt as to the
degree of disability, such doubt will be resolved in favor of
the claimant.  38 C.F.R. �� 3.102, 4.3, 4.7 (1994).  In
addition, the Board will consider the potential application
of the various other provisions of  38 C.F.R., Parts 3 and 4,
whether or not they were raised by the appellant, as well as
the entire history of the appellant's disability in reaching
its decision, as required by Schafrath v. Derwinski, 1
Vet.App. 589 (1991).

Chronic, fibrous pleurisy without empyema following lobar
pneumonia and other acute diseases of the lungs or pleural
cavity is normally considered to be a nondisabling condition.
With diaphragmatic pleurisy, pain in the chest, obliteration
of the costophrenic angles, and tenting of the diaphragm, a
10 percent evaluation is warranted. No higher evaluation is
authorized.  38 C.F.R. Part 4, DC 6810 (1994).

Under DC 6811, a 10 percent evaluation is warranted for
moderate purulent pleurisy (empyema) with some embarrassment
of respiratory function.  A 30 percent evaluation requires
moderately severe purulent pleurisy with residual marked
dyspnea or cardiac embarrassment on moderate exertion.
Severe purulent pleurisy, with extensive pleural or
pleuropericardial adhesion, marked restriction of respiratory
excursions and chest deformity which is intractable to
treatment warrants a 60 percent evaluation.  Finally, very
severe purulent pleurisy warrants an 80 percent evaluation,
which purulent pleurisy following intrapleural or
extrapleural pneumolysis warrants a 100 percent evaluation
38 C.F.R. Part 4, DC 6811 (1994).

Service medical records indicate that appellant was treated
for lobar pneumonia, and pleurisy with effusion.  By a rating
decision dated in June 1946, service connection was granted
for chronic left serofibrinous pleuritis, probably
tuberculosis, with a 100 percent disability evaluation
assigned therewith.  Following a March 1947 VA examination
and a review of the service medical records indicating no
objective evidence of tuberculosis at any time, the
appellant's service-connected disability was rated as minimal
serofibrinous pleurisy with a 10 percent disability
evaluation assigned by a March 1947 rating decision.  Such 10
percent evaluation was confirmed in rating decisions dated in
August 1947, July 1948, February 1950, and October 1955.  The
10 percent rating is protected from reduction.  38 U.S.C.A.
� 110 (West 1991).

In December 1991, the appellant requested, in part,
entitlement to an increased evaluation for service-connected
pleurisy, and reported relevant private medical treatment in
support thereof.  An accompanying December 1991 statement
from Ronald Bergom, M.D. revealed that he had treated the
appellant since separation from active duty for his lung
injury, with current diagnoses of advanced left ventricular
hypokinetic pattern which clearly represented an ongoing risk
for congestive heart failure.

Additional private reports received included  a July 1992
statement from Peter Marsh, M.D., December 1991 inpatient
reports with chest x-rays from the United Hospital; and
outpatient treatment reports from Dr. Hilts of the Palmer
Clinic dated from 1949 to 1972.  Such reports indicate
continued treatment at the Palmer Clinic for sinusitis since
1949.  In addition, chest x-rays performed in 1970 and 1971
indicated clear lungs.  Dr. Marsh's July 1992 statement also
indicated that the appellant's lungs were clear with no
rhonchi in December 1971.   Accompanying x-rays revealed good
clearing of the previous "emphysema" with better expansion
and little evidence of any serious problem as this time.

December 1991 inpatient reports from the United Hospital
indicate that the appellant was admitted with complaints of
shortness of breath with no chest pain.  Upon examination, he
was diagnosed with single vessel coronary artery disease,
congestive heart failure, pulmonary fibrosis, and chronic
obstructive pulmonary disease.  Chest x-rays at this time
revealed an infiltrate in the left lower lung field thought
to be chronic and related to previous reported emphysema,
with blunting of the lateral and posterior costophrenic
angles.

VA examinations dated in February and October 1992 indicated
complaints of chronic sinus infections and cardiovascular
difficulties, with current shortness of breath and weakness.
Chest x-ray and PF studies revealed diffuse pleural
calcification in the left lower lung field secondary to
emphysema contracted during service, with the right lung
reported as clear.  Physical examination revealed the lungs
were clear to percussion and auscultation with no wheezing.
The impression given was of a mild obstructive ventilatory
defect and disease.  Additional diagnosis included ischemic
cardiomyopathy from an indirect cause and/or of unknown
etiology with a history congestive heart failure, chronic
bronchitis, and chronic sinusitis.

During an August 1992 personal hearing, the appellant
testified that he currently suffered from increased shortness
of breath, weakness, chronic sinusitis and cardiovascular
difficulties which in his opinion, are attributable to his
service-connected respiratory disability.  He further
testified, along with his wife, that while he was initially
diagnosed with a cardiovascular condition in 1991, he had
experienced severe shortness of breath and weakness prior to
that time.  Finally, the appellant's wife, a registered
nurse, testified that in her professional opinion, all of the
appellant's current symptomatology was attributable to his
service-connected respiratory disability.

Upon review of the record, there is simply no objective
clinical evidence to support an evaluation in excess of 10
percent for the appellant's current respiratory disability.
The objective clinical evidence of record clearly indicated
mild obstructive pulmonary disease, with no evidence marked
dyspnea, cardiac embarrassment, chest deformity, or any
additional symptomatology attributable to such respiratory
condition.  Manifestations include a residual infiltrate in
the left lower lung secondary to old pneumonia and/or
emphysema, with some obliteration of the costophrenic angles
shown on current x-ray, as well as some impairment of
respiratory functioning.

It is unclear from the record as to whether the appellant was
diagnosed with emphysema secondary to service incurred
pneumonia and pleurisy at any time, nor are there any
laboratory findings of purulent exudate indicated on any
clinical reports of record.  Nevertheless, the current record
clearly demonstrates no more than moderate impairment
associated with his current disability as to prohibit an
evaluation in excess of 10 percent under DC 6811.  However,
the Board concludes that the appellant's service-connected
pleurisy more nearly approximates the criteria required for a
10 percent evaluation under DC 6810, and that evaluation
should therefore be continued.  38 C.F.R. �� 4.1, 4.7, 4.10,
4.14 (1994).

It appears from the record that the appellant's pulmonary
status has been stable for a number of years, without
significant periods of exacerbations or remissions.  The
record also demonstrates that the appellant currently suffers
from cardiovascular heart disease and a history of congestive
heart failure which are markedly disabling, and productive of
increased symptomatology similar to that of his service-
connected pleurisy, but for which service connection has not
been granted.  Nothing in the medical evidence, other than
the testimony of the veteran and his wife, establishes a
medical relationship between cardiovascular disease and the
service connected disability.  While the spouse claims to be
a registered nurse, the record does not reflect the tests or
information she used in making her decision.  The other
records and tests on file have failed to establish such a
relationship.  Accordingly, the testimony of the wife setting
forth her opinion is not persuasive to the Board in light of
the overwhelming evidence and tests that did not result in
physicians making the relationship.  There is absolutely no
competent clinical evidence demonstrating more than moderate
symptomatology associated with his service-connected
respiratory disability, and the Board must conclude as such.
See Colvin v. Derwinski, 1 Vet.App. 171 (1991).

Finally, there is no evidence of record of significant or
marked interference with daily activities beyond that
contemplated by the current schedular provisions, or frequent
hospitalizations attributable to the appellant's pleurisy to
warrant an extraschedular evaluation in excess of 10 percent.
The evidentiary record reflects that the appellant is
retired, and has not been hospitalized recently due to his
service-connected respiratory disorder.  Thus, the Board does
not find that this is such an unusual or exceptional
disability picture as to render the provisions of the rating
schedule inadequate, and therefore warrant an extraschedular
evaluation.  38 C.F.R. � 3.321(b) (1994).  Since the
preponderance of the evidence is against allowance of this
issue, the benefit of the doubt doctrine is inapplicable.
38 U.S.C.A. � 5107(b) (West 1991).

ORDER

Entitlement to an evaluation in excess of 10 percent for
pleurisy is denied.

          MICHAEL D. LYON
          Member, Board of Veterans' Appeals

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

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


judge_norm: ALBERT D TUTERA

condition: ptsd

text:
BVA9511001
DOCKET NO.  93-18 206     )       DATE
          )
          )

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

THE ISSUE

Entitlement to service connection for post-traumatic stress
disorder.

REPRESENTATION

Appellant represented by: Military Order of the Purple
Heart

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Ronald R. Bosch, Counsel

INTRODUCTION

The veteran served on active duty from June 1965 to February
1968 and from August 1968 to September 1971.

The claims file contains report of a rating decision dated in
May 1992 wherein entitlement to service connection for post-
traumatic stress disorder was denied.

The current appeal arose from a June 1992 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida.  The RO affirmed the prior denial
of entitlement to service connection for post-traumatic
stress disorder.

The case has been forwarded to the Board of Veterans' Appeals
(Board) for appellate review.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he has been diagnosed with post-
traumatic stress disorder based on his combat service during
the Vietnam Era, thereby warranting entitlement to a grant of
service connection.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the record supports a grant of entitlement
to service connection for post-traumatic stress disorder.

FINDINGS OF FACT

1.  The appellant is a veteran of honorable service with the
United States Army and the United States Marine Corps, having
served as an infantryman in Vietnam; and is a recipient of
decorations including a Purple Heart Medal, Combat Action
Ribbon, Vietnam Service Medal, Vietnam Campaign Medal, and
Vietnam Cross of Gallantry.

2.  The veteran was exposed to psychologically traumatic
events during service of such magnitude as to provoke
significant symptoms of distress in almost anyone.

3.  The veteran has been diagnosed with post-traumatic stress
disorder as a consequence of his military service by VA
psychiatrists.

CONCLUSION OF LAW

The requirements for service connection for post-traumatic
stress disorder have been met.  38 U.S.C.A. �� 1110, 1154,
5107 (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially the Board finds that the appellant's claim is well
grounded within the meaning of 38 U.S.C.A. �� 5107(a), in
that he has presented a claim which is plausible.  The Board
is satisfied that all relevant facts have been properly
developed and that no further assistance to the claimant is
required in order to comply with 38 U.S.C.A. � 5107(a).

The appellant contends that he has post-traumatic stress
disorder directly related to his exposure to traumatic combat
events associated with his service with the United States
Army and the United States Marine Corps in Vietnam.  The
claimant's service documentation on file substantiates that
he is a veteran of service as an infantryman in Vietnam.  He
repeatedly engaged enemy forces in Vietnam and was subject to
mortar and rocket attacks, ambushes, and loss of life as the
result of contact with the enemy forces.  The Board has
considered and is cognizant of the circumstances, conditions,
and hardships attendant to the veteran's service in Vietnam.
38 U.S.C.A. � 1154.

The Board notes that service medical records show the veteran
was diagnosed with situational adjustment reaction as the
result of a psychiatric evaluation conducted in June 1971.
His service medical records are otherwise negative for any
pertinent psychiatric abnormalities.

The nature of the veteran's service is not in doubt in view
of his decorations documented to include a Purple Heart
Medal, Combat Action Ribbon, Vietnam Service Medal, Vietnam
Campaign Medal, and Vietnam Cross of Gallantry.  His
statements are on file describing the nature of his service
in the combat zone and his testimony presented at the RO.

The question remaining in the disposition of the claimant's
appeal is whether he has post-traumatic stress disorder as a
consequence of his combat service in Vietnam.  The Board must
respond in the affirmative.  In this regard, the Board
observes that when hospitalized by VA from January to March
1992, the veteran was diagnosed with post-traumatic stress
disorder, chronic, evidenced by survivor guilt, impacted
grief, emotional numbing admixed with volatility, emotional
constriction and inhibition, isolation and avoidance,
hypervigilance, recurrent intrusive images, memories and
nightmares of Vietnam combat and casualties, a need for
excitement, a sense of futility, and a sense of a
foreshortened life.

At an April 1992 VA special psychiatric examination the
veteran reported having served with the United States Army
and United States Marine Corps in Vietnam.  He was involved
in a Force Recon Unit as an officer and was exposed to a
multitude of traumatic events.  Subsequent to service he held
a multitude of jobs, the longest having lasted one and one-
half years.  He was married and divorced three times.  The
appellant complained of having many symptoms from his tours
in Vietnam.  These included two dreams in particular which
were recurring and very distressing to him.  He found that he
was detached and estranged from others.  He had a restricted
range of affect and a sense of a foreshortened future.  The
claimant was unable to remember some aspects of his life in
Vietnam.  He also complained of being very irritable, easily
angered, having incredible difficulty with concentration,
being very hypervigilant, and difficulty falling and staying
asleep.

The veteran complained of depression, isolating himself from
others by bunkering up, being distrustful of others and
constantly angry and irritable.  If someone did something
that was unjust or what he sensed was unjust, he became out
of proportionately angry with them.  The veteran was
currently employed.  He was able to do his job and to be in
and around other people.  This was accomplished only by
isolating himself, withdrawing, and not engaging in any
meaningful conversation, closeness or emotional interplay.

On mental status examination the veteran was alert, oriented
and cooperative, but had a very slight affect.  His range of
affect was very constricted.  He stated that he was
distrustful but not paranoid and not currently suicidal or
homicidal.  Cognition was intact to immediate, recent and
remote memory, calculations and abstractions.  The veteran
complained of dysphoria and longstanding lack of interest in
enjoyable activities.  The relevant clinical assessment was
post-traumatic stress disorder.

The appellant testified at an RO hearing held in March 1993.
He provided a description of personal life threatening
stressors to which he was exposed in connection with his
combat service in Vietnam.  Flashbacks were said to be rare.
He was unable to be open with people.

The Board's evaluation of the evidence of record permits the
conclusion that the veteran has post-traumatic stress
disorder related to his combat experiences as an infantryman
in Vietnam.  The Board observes that the veteran is a
recipient of the Purple Heart Medal in connection with a
shell fragment wound of the left leg for which service
connection has been granted.  He is also a recipient of a
Combat Action Ribbon.  The above awards, among others, attest
to his combat experiences.  The record confirms a diagnosis
of post-traumatic stress disorder directly attributed to
combat service in Vietnam by VA psychiatrists.

For the foregoing reasons, the Board finds that the evidence
of record supports a grant of entitlement to service
connection for post-traumatic stress disorder.  38 U.S.C.A.
�� 1110, 1154, 5107.

ORDER

Entitlement to service connection for post-traumatic stress
disorder is granted.

          ALBERT D. TUTERA
          Member, Board of Veterans' Appeals

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

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


judge_norm: WAYNE M BRAEUER

text:
Decision Date: 07/31/95				Archive Date:
07/31/95
DOCKET NO.  93-19 964	)	DATE
	)

	)

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

THE ISSUE

Entitlement to an increased rating for the residuals of a
left ankle sprain, evaluated as 20 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Elizabeth Gallagher, Associate Counsel
INTRODUCTION

The veteran had active duty from May 1945 to December 1945,
from June 1951 to June 1954, and from August 1954 to July
1962.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1992 rating decision.  The
veteran was present for a hearing before a hearing officer
at the VA Field Office in Wilkes-Barre, Pennsylvania in
April 1993.

REMAND

The veteran contends, in essence, that the residuals from
her left ankle sprain have gotten progressively worse and
warrant a rating higher than the 20 percent currently
assigned.

During this appeal the veteran has requested that the RO
review the medical records  of her examination and treatment
at VA medical facilities in Wilkes-Barre, Pennsylvania ,
since September 1992.  She has asserted that she had been
evaluated there for a permanent left ankle brace and custom
molded orthopedic shoes "due to the deteriorating condition"
of her left ankle.

In this regard, the Board finds that securing all of the
veteran's medical records since September 1992 is necessary
prior to the proper adjudication of this appeal.
Accordingly, to ensure that VA has met its duty to assist
the appellant in developing the facts pertinent to the
claim, the case is REMANDED to the RO for the following
development:

                      The RO should obtain and associate
with the
                      veteran's claims file copies of all
Wilkes-Barre VA
		medical records, outpatient and inpatient since
		September 1992, relating to her left ankle
disability.

After the development requested above has been completed to
the extent possible, the RO should again review the record.
If the benefit sought on appeal remains denied, the
appellant and her representative should be furnished a
supplemental statement of the case and given the appropriate
period of time in which to respond.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The appellant need take no further
action until notified.

	WAYNE M. BRAEUER
	Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.  38
C.F.R. � 20.1100(b) (1994).

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