judge_norm: H N SCHWARTZ

condition: heart

text:
Citation Nr: 0211000
Decision Date: 08/30/02    Archive Date: 09/05/02

DOCKET NO.  96-19 583	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a heart disability.

REPRESENTATION

Veteran represented by:	Alabama Department of Veterans
Affairs

ATTORNEY FOR THE BOARD

K. Parakkal, Counsel

INTRODUCTION

The veteran served on active duty from December 1942 to April
1946 and from July 1947 to November 1964.  Possible service
prior to December 1942 has not been verified and is not
relevant to the issue on appeal.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an August 1995 RO decision that denied the
veteran's application to reopen a claim of service connection
for a heart disability.  By a January 1998 Board decision,
the veteran's claim was reopened and remanded to the RO for
further development.  Again, in October 1998 and September
2000, the Board remanded the case for further evidentiary
development.

FINDINGS OF FACT

1.  The veteran's current chronic heart disability was
initially manifested many years after service.

2.  Any current chronic heart disability is not attributable
to a disease or injury in service.

CONCLUSION OF LAW

A chronic heart disability was not incurred in or aggravated
by service and may not be presumed to have been incurred in
service.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1131, 1137,
5107 (West 1991 & Supp. 2001); 38 C.F.R. �� 3.303, 3.307,
3.309 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

Service medical records show that there were no medical
findings or complaints regarding the veteran's heart during
his first period of service.  Upon entrance into the second
period of service, an examination of the heart was normal.
On October 3, 1955, the veteran complained of having a
"fluttering" feeling in his chest.  He underwent several
electrocardiograms (EKGs), all of which were normal.  He
underwent an examination in October 1955.  The examining
physician noted that the veteran had complained of
palpitation of the heart for the past month, "which
unquestionably seems to be related to premature
contractions."  Physical examination of the heart was
unremarkable.  The funduscopic examination was normal.  The
heart size was normal.  Tones were normal quality and there
were no murmurs or other adventitious sounds.  Blood pressure
was 120/80 and the pulse was 60 beats/minute and noted to be
"regular."  The remainder of the physical examination was
not remarkable.  The impression was a normal healthy heart
with occasional episodes of premature contractions and
"apparently a good history of [one] attack of paroxysmal
auricular tachycardia."

Examinations conducted in June 1956, July 1959, August 1960,
July 1962, and July 1964 showed normal clinical evaluations
of the heart.  A July 1956 examination report indicates that
the veteran reported having several episodes of palpitations
the last of which was in October 1955.  EKG and chest X-rays
were noted as normal.  In July 1959 and July 1964, the
veteran reported a medical history of palpitations.  In an
August 1960 report, he indicated he had one attack of
tachycardia in the past year.  The July 1964 examination
report reflects that the veteran reported having chest pain
and intermittent paroxysmal tachycardia from 1950 to 1955.
It was noted that extensive evaluation, including Masters'
test and ballistocardiogram were normal.  Symptoms were
explained as stress related, and had been minimal since 1955.
EKGs conducted in August 1958, July 1959, August 1960, July
1962, February 1964, and July 1964, all showed normal
results.  In October 1964, the veteran was seen with
complaints of chest pain.  Examination of the chest revealed
congestion with course rales bilaterally.  A diagnosis of
bronchitis was entered.  The following month, the veteran's
chest was noted to be clear and asymptomatic.

The veteran underwent a VA examination in January 1965.  The
VA physician noted the history of the veteran's palpitations.
Examination at that time revealed no evidence of cardiomegaly
to percussion.  Apical impulse was palpable in the 5th
interspace mid clavicular line.  Heart rate was 96
beats/minute with regular sinus, and no murmurs or rubs.
Blood pressure was 146/94.  Peripheral pulses were full and
equal bilaterally and there was no induration or tortuosity
of the peripheral arteries and no peripheral edema.  An EKG
was within normal limits.  The VA physician stated that the
palpitation of the heart, which was recurrent by history, was
not indicated on examination.

By a February 1965 RO decision, the veteran's claim of
service connection for an organic heart disease was denied by
the RO.

A 1967 outpatient treatment report from the Air Force base
shows that the veteran complained of chest pain.  The veteran
reported a sudden, sharp pain in his chest, which was
relieved somewhat with deep breathing.  Upon physical
examination, the examining physician stated that the chest
was clear to percussion and auscultation.  Heart tones were
strong and there was no murmur, heave, thrill, or
cardiomegaly.  The impression was musculoskeletal pain.
Angina was to be ruled out.

Private medical records, dated in November 1974, reflect
diagnoses including hypertension, an aortic systolic murmur
(of undetermined etiology and without any evidence of
hemodynamic significance), and aortic stenosis.  The veteran
reported that he had hypertension.  He said 20 years earlier
he had been noted to have a little heart murmur.  It was also
noted that no one else had heard this murmur.  It was noted
he had no cardiovascular difficulties except one or two
episodes of paroxysmal atrial tachycardia.  It was noted he
worked under a lot of stress and was a high pressure type of
individual.  He denied having chest pain or shortness of
breath.

A January 1977 private medical record reflects a diagnosis of
hypertension.

Generally, private medical records dated in 1993 and 1995
reflect diagnoses including aortic stenosis.  Specifically,
an echocardiography report, dated in July 1993, reflects a
diagnosis of aortic stenosis.  It was noted on the report
that when compared to an echocardiography report done in
October 1991, there were no significant changes.  A Holter
monitor report, dated January 1995, reflected abnormal
findings with occasional short runs of supraventricular
ectopic runs with a maximum rate of 169 beats/minute and the
longest lasting about 16 beats.

In a November 1995 letter from M.P., M.D., noted that the
veteran had a "long history of aortic stenosis" and a
"long history of cardiac arrhythmia."  Dr. P stated that
the veteran had documented supraventricular tachycardia on
his Holter monitor in January 1995.  He stated the following,
in part:

When I first saw [the veteran,] he gave
me a history that he had paroxysmal
atrial tachycardia dating back for many
years. . . . The patient says that his
irregular heart rate first occurred while
he was in the armed service.  I am not
sure which year this was first apparent
but apparently that is his history as he
relates it to me. . . . In summary, then,
[the veteran] has a history dating and
documented for many years of a
supraventricular tachycardia and aortic
stenosis[,] which is not hemodynamically
significant.  He feels and historically
claims that the supraventricular
tachycardia first manifested itself while
he was serving in the United States
military...

A March 1996 letter from J.D.J., M.D., stated that the
veteran had mild aortic valve stenosis with only a mild
gradient.  He further stated that the veteran was having
palpitations of two forms:  benign premature ventricular
contractions and benign episodes of supraventricular atrial
tachycardia.  He further stated, "Apparently[,] you did have
episodes of supraventricular tachycardia or paroxysmal atrial
tachycardia while in the service."

In January 1998, the Board reopened and remanded the
veteran's claim to the RO.

A March 1998 VA examination reflects the opinion that there
was documentation in the veteran's service medical records of
his two types of heart rhythms.  It was noted that one
examiner thought the veteran had paroxysmal atrial
tachycardia and frequent premature contractions.  It was
noted that a 1955 note (apparently from a cardiologist)
documented premature ventricular contractions and one episode
of paroxysmal atrial tachycardia.  The diagnoses were:  1.
Paroxysmal atrial tachycardia and 2. Organic heart disease;
etiology: probable atherosclerosis; anatomy:  mild aortic
stenosis, mild mitral insufficiency; physiology: normal sinus
rhythm class IIB.  The March 1998 VA examiner addressed
several of the Board's  remand questions, including was there
any evidence of organic heart disease in service.  In
response to this question, it was opined that there was clear
evidence that paroxysmal atrial tachycardia was present in
service, as it was documented in his service medical records.
It was noted that this type of heart symptom could occur in
the absence of an anatomical heart disease since it
constituted a disturbance of the regulation of the heart's
rhythm.  With regard to the heart murmur, the veteran said
physicians may have heard such, but this was not documented
in the medical records.  It was opined that it seemed likely
that since the veteran did have aortic stenosis that he could
well have had a minor murmur that a physician would have
considered "innocent."

The Board's remand posed the question:  According to the
record when was the first objective manifestation of cardiac
pathology?  The March 1998 VA examiner opined that the first
cardiac manifestations were the entries noting paroxysmal
atrial tachycardia in October 1955.  It was noted, however,
that the veteran reported he first became symptomatic in
1948.

The Board queried:  Is there any relationship between the
notation of an attack of paroxysmal auricular in service and
the current diagnosis of premature ventricular contractions
and/or benign episodes of supraventricular atrial
tachycardia?  Are the findings indicative of disease or
pathology?  First, the examiner indicated that paroxysmal
auricular tachycardia, paroxysmal supraventricular
tachycardia and paroxysmal atrial tachycardia could be used
interchangeably and such conditions constituted a disturbance
in the conduction system of the heart and may not have
anatomical changes.  Second, it was pointed out that the fact
that the veteran reported he had failing vision during one
such attack demonstrated that cardiac output may fall to a
significant degree during such an episode.  The term benign
premature ventricular contractions referred to early heart
beats that occur particularly when the regular heart rate
drops at a slow rate.  They do not necessarily represent
pathology and are no threat to the individual.

A November 1998 VA examination report is in large part
similar to the aforementioned March 1998 VA examination
report, discussed above.  The November 1998 VA examination
reflects that the veteran had no past history suggesting
rheumatic fever in childhood.  It was noted he was currently
being treated for hypertension in addition to his episodes of
paroxysmal atrial tachycardia.  The diagnoses were the same
as listed in the March 1998 examination report.  In response
to the question:  Is there any relationship between the
notation of paroxysmal auricular tachycardia in service and
the current diagnosis of mitral insufficiency, or
atherosclerosis?  It was answered that the veteran remembered
being questioned about the possibility of a heart murmur on
one or two occasions during his tour of active duty; however,
there was no documentation of these findings in the record.
It was opined that there was no causal relationship between
the episodes of atrial tachycardia and the subsequent
development of valvular heart disease.  It was opined that it
was true that episodes of supraventricular tachycardia occur
in the presence of mitral insufficiency but this usually
occurred when there was striking left atrial enlargement.  It
was noted that "while one can not be dogmatic about the
evidence for valvular heart disease while on active duty, I
am strongly inclined to resolve the issue in favor of the
veteran."

A September 1999 echocardiogram shows that the veteran had a
mildly dilated left ventricle with normal left ventricular
systolic function, no pericardial effusion, mass or thrombus,
moderate aortic stenosis with mild to moderate regurgitation,
mild to moderate mitral insufficiency, mild tricuspid
insufficiency, and mild pulmonary hypertension with RV
systolic pressure approximately 35 mmHg.

A March 2000 echocardiogram report was reflective of aortic
stenosis and left ventricular hypertrophy, among other
things.

In May 2000, the Board requested a VHA opinion.

In June 2000, an examiner responded to the Board's VHA
opinion request.  The Board's first question was:  What is
the underlying cause of the appellant's mitral insufficiency?
The VA examiner opined that the underlying cause of the
veteran's mitral insufficiency could not be determined by the
records available.  It was noted that the September 1999 EKG
was reported to show a normal mitral valve with mild to
moderate mitral regurgitation.  There was no significant
structural abnormality of the mitral-valve and it may be
presumed that the mitral regurgitation was due to minor
degenerative changes of the valve.

The Board's second question was:  Was the underlying cause of
the appellant's mitral insufficiency present in service?  The
answer was:  the underlying cause of the mitral insufficiency
was not present in service.

The Board's third question was:  Was the appellant's
inservice paroxysmal auricular tachycardia associated with
the presence of mitral valvular insufficiency in service?  It
was opined that there was no evidence that the veteran's
paroxysmal atrial tachycardia was associated with the
presence of mitral insufficiency in service.

The Board's fourth question was:  Is it more likely than not
that the appellant had left atrial enlargement in service?
It was noted that the September 1999 2D echocardiogram showed
a normal left atrial size and it was concluded that it was
self evident that there was no left atrial enlargement in
service.

The Board's fifth question was:  Was there any evidence of
organic heart disease in service and if so, specify the
disease that was present in service.  It was noted that there
was no evidence of organic heart disease in service.

The Board's sixth question was:  Is there any relationship
between any of the currently diagnosed diseases of the heart
(atheroscloerosis, aortic stenosis, mitral insufficiency) and
the paroxysmal auricular tachycardia or other diseases of the
heart in service?  The VA examiner concluded that there was
no relationship between any currently diagnosed cardiac
abnormality and the paroxymsal atrial tachycardia.

A June 2000 Holter monitor evaluation report shows that the
veteran had mildly abnormal findings due to the simple
atrioventricular ectopy and prominent bradycardia.

In an October 2000 statement, S.A.K., M.D., indicated that
the veteran had been a patient of his since July 1999.  It
was noted that the veteran had significant aortic valve
stenosis; and the most likely cause of this condition was
rheumatic heart disease, which followed a previous
streptococcal infection.  It was noted that the veteran had
undergone a successful aortic valve replacement in August
2000.  It was opined that the veteran developed a damaged
aortic valve "on the basis of rheumatic heart disease."

II.  Legal Analysis

There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001).  To
implement the provisions of the law, the VA promulgated
regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a)).  The amendments became effective November 9, 2000,
except for the amendment to 38 C.F.R. � 3.156(b) which became
effective August 29, 2001.  Except for the amendment to 38
C.F.R. � 3.156(a), the second sentence of 38 C.F.R. �
3.159(c), and 38 C.F.R. � 3.159(c)(4)(iii), VA stated that
"the provisions of this rule merely implement the VCAA and
do not provide any rights other than those provided in the
VCAA."  66 Fed. Reg. 45,629.  Accordingly, in general where
the record demonstrates that the statutory mandates have been
satisfied, the regulatory provisions likewise are satisfied.
The Act and implementing regulations eliminate the concept of
a well-grounded claim, redefine the obligations of VA with
respect to the duty to assist, and supersede the decision of
the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, 14 Vet. App. 174 (per curiam order) (holding
that VA cannot assist in the development of a claim that is
not well grounded).

First, VA has a duty to notify the veteran and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. �� 5102, 5103.  The record shows that the veteran
was properly notified of the outcome of the August 1995
rating decision and of the reasons and bases for the denial
of his claim.  The Board concludes that the discussions in
the August 1995 rating decision, statement of the case
(issued in February 1996), and supplemental statement of the
case (SSOC) (issued in March 1998, June 1998, November 1999,
November 2001, and May 2002) and numerous letters over the
years informed the veteran of the information and evidence
needed to substantiate his claim and complied with VA's
notification requirements.

The Board also notes that the SOC and SSOCs advised the
veteran of the evidence that had been obtained and
considered.  There is no indication that there is any
additional relevant competent evidence to be obtained either
by the VA or by the veteran, and there is no other specific
evidence to advise him to obtain.  Quartuccio v. Principi,
No. 01-997 (U.S. Vet. App. June 19, 2002).

Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim.  38 U.S.C.A.
� 5103A.  In the instant case, VA has made exhaustive efforts
to develop the record.  The Board remanded the veteran's
claim three times (in January and October 1998 and in
September 2000) in an attempt to ensure that the evidentiary
record was complete.  Extensive efforts were made to obtain
all pertinent records bearing on his claim for service
connection, including all outstanding VA medical records, and
his service medical records.  Further, the veteran has not
identified any other outstanding records.  Additionally, the
veteran was afforded multiple VA examinations in March and
November 1998.  Additionally, a VHA opinion was obtained to
address the dispositive matter in this case which is the
nature and etiology of the veteran's heart disability.  In
sum, the Board find that the record contains sufficient
evidence to make a decision on the claim; an additional VA
examination is not necessary.  VA has fulfilled its duty to
assist.

Finally, even though the RO did not have the benefit of the
explicit provisions of the VCAA, VA's duties have been
fulfilled.  Moreover, as the Board finds that the directives
of VCAA have been complied with regarding VA's duties to
notify and to assist the veteran, the Board finds that the
veteran has not been prejudiced by the Board's consideration
of the merits of his claim, as set forth below.  See Bernard
v. Brown, 4 Vet. App. 384 (1993) [when the Board addresses in
its decision a question that has not been addressed by the
RO, it must consider whether the appellant has been given
adequate notice to respond and, if not, whether he has been
prejudiced thereby].  For the reasons previously set forth,
the Board believes that the veteran has been given ample
opportunity to provide evidence and argument in support of
his claim.  In short, the Board finds that the veteran has
been given adequate notice of the need to submit evidence or
argument and that he is not prejudiced by this decision.  As
such, the Board will proceed with a discussion of the merits
of the veteran's claim.

In the circumstances of this case, a remand would serve no
useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).  VA has satisfied its duties to
notify and to assist the veteran in this case.

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.  Service
connection for arteriosclerosis, myocarditis, endocarditis
(and all other forms of valvular heart disease) may be
granted if manifest to a compensable degree within one year
of separation from service.  38 U.S.C.A. �� 1101, 1112, 1113,
1131, 1137; 38 C.F.R. �� 3.307, 3.309.

Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned.  When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim.  38 C.F.R. �
3.303(b); see also Savage v. Gober, 10 Vet. App. 488 (1997).
Finally, service connection may be granted for any disease
diagnosed after service when all the evidence establishes
that the disease was incurred in service.  38 C.F.R. �
3.303(d).

In the instant case, a review of the service medical records
from the veteran's first period of service are not relevant
for any heart problems.  As for his second period of service,
there is an episode in October 1955, during which he
complained of a fluttering feeling in chest as well as
palpitations for the previous month.  EKG studies were
normal.  The examiner noted that his palpitations seemed,
unquestionably, related to premature contractions.  The
clinical impression was a normal healthy heart, with
occasional episodes of premature contractions and an attack
of paroxysmal auricular tachycardia.  Thereafter, for the
remainder of the veteran's period of service (from the mid
1950s to the mid 1960s), the veteran's heart examinations
were consistently normal; however, it is noted that he
periodically reported a medical history of palpitations.

There is no evidence of a chronic heart disability within one
year of the veteran's service separation.  The veteran's
first post-service VA compensation examination took place in
January 1965, and a heart disability was not indicated.  It
was noted that the veteran had recurrent palpitations by
history, but none were present at the time of the
examination.

The first post-service indication of a chronic heart
disability is in 1974, at which time the veteran was noted as
having hypertension, an aortic systolic murmur (of
undetermined etiology), and aortic stenosis.  More recent
medical evidence continues to show that the veteran has been
diagnosed as having hypertension and organic heart disease.

With regard to the etiology of the veteran's current heart
problems, there are several opinions on file which address
this matter.  In a November 1995 letter, a private examiner,
Dr. M.P., indicated that the veteran had a long history of
aortic stenosis and cardiac arrhythmia.  It was noted that
the veteran reported having an irregular heart rate which
began in service.  In a March 1996 statement, Dr. J.D.J.
related that the veteran apparently had episodes of
supraventricular tachycardia or paroxysmal atrial tachycardia
while in service.  Both of these opinions have little
probative value as there is no indication that the examiner
reviewed the claims file (including his service medical
records) prior to rendering his opinion.  Rather, the
opinions appear to be largely based on the veteran's own
self-reported history.  Grover v. West, 12 Vet. App. 109, 112
(1999), affirming LeShore v. Brown, 8 Vet. App. 406 (1995).

An October 2000 opinion of Dr. S.A.K. is to the effect that
the veteran's current aortic valve damage is attributable to
rheumatic heart disease.  This etiological opinion is of
little probative value as there is no evidence that the
veteran has rheumatic heart disease which is related to
service.

There are two VA examinations on file.  The first VA
examination was performed in March 1998 and is to the effect
that the veteran's first cardiac pathology was during service
in 1955, and consisted of paroxysmal atrial tachycardia.
Notably, the VA examiner noted that this condition was, in
essence, a disturbance in the regulation of the heart's
rhythm, and could occur in the absence of heart disease.  It
was noted that while the veteran reported a history of a
heart murmur in service, there was no documentation of such.
It was also noted that given his current aortic stenosis, he
could well have had a minor murmur that a physician would
have considered innocent.

A November 1998 VA examination is to the effect that there
was no causal relationship between the veteran's inservice
episodes of atrial tachycardia and the subsequent development
of valvular heart disease.  It was further opined that, in
general, episodes of supraventricular tachycardia occurred in
the presence of mitral insufficiency but this usually
occurred when there was striking left atrial enlargement.
The examiner also indicated he was strongly inclined to
resolve the issue of whether valvular heart disease
manifested during service in favor of the veteran.  The basis
for this strong inclination was not provided.

Given the aforementioned etiological opinions which are
conflicting, the Board requested a VHA opinion, in May 2000,
to reconcile the complex medical issues in this case.  A VA
examiner was furnished with the claims folder and asked to
address specific inconsistencies which were raised by the
record including the aforementioned VA examination opinions
rendered in March and November 1998.  The June 2000 VHA
examiner opined that the underlying cause of the veteran's
mitral insufficiency was not present in service and could not
otherwise be determined.  It was opined that there was no
evidence that the veteran's paroxysmal atrial tachycardia was
associated with the presence of mitral insufficiency in
service.  It was noted that there was no evidence of organic
heart disease in service.  Finally, the VA examiner concluded
that there was no relationship between any currently
diagnosed cardiac abnormality and paroxysmal atrial
tachycardia.  The Board accords the VHA opinion, which
discounts the relationship between the veteran's current and
chronic heart problems and service, as having considerable
probative value given the foundation for such, including an
analysis of his entire medical history, including his service
medical records, his VA examination reports, and many private
medical records.  Guerrieri v. Brown, 4 Vet.App. 67 (1993).

Conversely, the veteran's VA examination opinions, discussed
above, lack probative value as they contain many internal
inconsistencies and are largely equivocal and lack a
supporting rationale.

While the veteran appears to argue that his current heart
problems first manifested in service or are related to
rheumatic heart disease which began in service, he is not
competent to render such an opinion as he is a layman,
possessing no medical expertise or training.  See Grottveit
v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2
Vet. App. 492, 494-5 (1992) (laypersons are not competent to
render medical opinions).

The benefit-of-the-doubt rule provides that, where there is
an approximate balance of positive and negative evidence
regarding the merits of a material issue, the benefit of the
doubt in resolving such an issue shall be given to the
claimant.  38 U.S.C.A. � 5107(b); see Ashley v. Brown, 6 Vet.
App. 52 (1993).  The Board has carefully considered the rule,
but is unable to find that the positive and negative evidence
is, under the applicable law, in balance.  Instead, the great
weight of evidence is against the veteran's service
connection claim and, thus, the rule is inapplicable.

ORDER

Service connection for a heart disability is denied.

	H. N. SCHWARTZ
	Member, Board of Veterans' Appeals

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

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


series: legacy

judge_norm: RICHARD B FRANK

judge_role: Member, Board of Veterans' Appeals

disposition: denied

condition: kidney

text: Service connection for PTSD is denied.

text:
Citation Nr: 0212000
Decision Date: 09/13/02    Archive Date: 09/19/02

DOCKET NO.  95-20 400	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado

THE ISSUES

1. Entitlement to service connection for a kidney condition.

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

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Vito A. Clementi, Counsel

INTRODUCTION

The appellant had active duty from June 1965 to February
1968.

This matter was last before the Board of Veterans' Appeals
(Board) in May 2000, on appeal from rating decisions of the
Denver, Colorado, Department of Veterans Affairs (VA)
Regional Office (RO).  Upon its last review, the Board
reopened the appellant's previously denied claim of
entitlement to service connection for a kidney condition.
That claim, as well as the appellant's claim of service
connection for PTSD, was remanded to the RO for further
development of the record.

Having reviewed all of the evidence of record, the Board is
of the opinion that the claims are ready for appellate
review.

FINDINGS OF FACT

1. The appellant is not a veteran of combat.

2. There is no corroboration for the appellant's account that
he sustained trauma to his kidneys during an in-service
incident.

3. The appellant's kidney disorder did not occur in, or was
not aggravated by, any incident of military service.

4. The appellant is not diagnosed to have PTSD.

CONCLUSIONS OF LAW

1. A kidney disorder was not incurred in or aggravated by
military service and may not be presumed to have been so
incurred or aggravated.  38 U.S.C.A. � 1110 (West 1991);
38 C.F.R. � 3.303 (2001).

2. PTSD was not incurred in or aggravated by military
service.  38 U.S.C.A.
� 1110 (West 1991); 38 C.F.R. � 3.303 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matter:  VA's Duty to Notify and Assist

There has been a significant change in the law during the
pendency of this appeal.  The Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000),
now codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107
(West Supp. 2001).  The legislation has eliminated the well-
grounded claim requirement, has expanded the duty of VA to
notify the appellant and the representative, and has enhanced
its duty to assist an appellant in developing the information
and evidence necessary to substantiate a claim.  See
generally VCAA.

VA issued regulations to implement the VCAA in August 2001.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a)).
The amendments were effective November 9, 2000, except for
the amendment to 38 C.F.R. � 3.156(a) that is effective
August 29, 2001.  Except for the amendment to 38 C.F.R. �
3.156(a), the second sentence of 38 C.F.R. � 3.159(c), and 38
C.F.R. � 3.159(c)(4)(iii), VA stated that "the provisions of
this rule merely implement the VCAA and do not provide any
rights other than those provided in the VCAA."  66 Fed. Reg.
45,629.  Accordingly, in general where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions likewise are satisfied.

The United States Court of Appeals for Veterans Claim (Court)
held in Holliday v. Principi, 14 Vet. App. 280 (2001) that
the VCAA was potentially applicable to all claims pending on
the date of enactment, citing Karnas v. Derwinski, 1 Vet.
App. 308 (1991).  Subsequently, however, the United States
Court of Appeals for the Federal Circuit held that Section 3A
of the VCAA (covering the duty to notify and duty to assist
provisions of the VCAA) was not retroactively applicable to
decisions of the Board entered before the effective date of
the VCAA (Nov. 9, 2000).  Bernklau v. Principi, No. 00-7122
(Fed. Cir. May 20, 2002); See also Dyment v. Principi, No.
00-7075 (Fed. Cir. April 24, 2002).  In reaching this
determination, the Federal Circuit appears to reason that the
VCAA may not apply to claims or appeals pending on the date
of enactment of the VCAA.  However, the Federal Circuit
stated that it was not reaching that question.  The Board
notes that VAOPGCPREC 11-2000 (Nov. 27, 2000) appears to hold
that the VCAA is retroactively applicable to claims pending
on the date of enactment.  Further, the regulations issued to
implement the VCAA are to be applicable to "any claim for
benefits received by VA on or after November 9, 2000, the
VCAA's enactment date, as well as to any claim filed before
that date but not decided by VA as of that date."  66 Fed.
Reg. 45,629 (Aug. 29, 2001).  Precedent opinions of the chief
legal officer of the Department and regulations of the
Department are binding on the Board.  38 U.S.C.A. � 7104(c)
(West 1991).  For purposes of this determination, the Board
will assume that the VCAA is applicable to claims or appeals
pending on the date of enactment of the VCAA.

The VCAA provides that VA shall make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate the claimant's claim for a benefit under a law
administered by the Secretary, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim.  In part, the VCAA specifically
provides that VA is required to make reasonable efforts to
obtain relevant governmental and private records that the
claimant adequately identifies to VA and authorizes VA to
obtain.  The VCAA further provides that the assistance
provided by the Secretary shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary, as further defined by
statute, to make a decision on the claim.  38 U.S.C.A.
� 5103A (West Supp. 2001).

The Board has carefully considered the evidence of record and
is of the opinion that the provisions of the VCAA have been
satisfied.

Firstly, the RO has obtained all medical records reflecting
treatment for the disorders in question.  In December 1978,
the RO requested and obtained the treatment records of Arthur
Beck, M.D., reported by the appellant to have treated him for
a kidney condition.  In his response, Dr. Beck reported that
he had only treated the appellant for a vision deficiency.
In August 1979, the Gunnison Family Medical Center forwarded
records of treatment afforded the appellant in June 1979 for
kidney pain, as reported by the appellant.  In a January 1995
letter, in the context of a request by the RO to provide
substantiating information for his claim, the appellant
reported that the family physician who treated him while on
leave from military service, Arthur Beck, M.D. was "long
deceased."

The appellant has also reported being under relative constant
care by VA physicians since 1978 for his kidney disorder, and
since approximately 1994 for his claimed psychiatric
disorder.  In development of the claim, the RO obtained
complete VA medical records from medical facilities in Miami,
Florida and Denver, Colorado.  The appellant has not
reported, and the record does not suggest, that other VA
records exist and have not been obtained.  Duplicate and
updated copies of these records were obtained after the
Board's May 2000 remand.

The appellant has also been informed of the laws and
regulations pertaining to obtaining service connection for
the disorder.  See Statement of the Case dated in May 1995;
Supplemental Statements of the Case dated in July 1995, June
1996, October 1996 and March 2002.

Finally, the appellant was specifically apprised of the
provisions of the VCAA and how they applied to his claims by
letter dated in November 2001.  He was provided with a
listing of all relevant evidence that had been obtained to
support both claims, and advised that there was no further
evidence that was outstanding to obtain, although he had the
opportunity to submit further evidence and argument in
support of the claim.

In November 2001 and through his representative, the
appellant reported that he obtained medical care only at the
VA facilities from which the RO had already obtained records,
and that he desired that the Board proceed with appellate
consideration of his claims forthwith.  There being no
further information outstanding, the Board is unable to find
that further apprisement towards substantiation of the claim
is necessary.  Quartuccio v. Principi, 16 Vet. App. 183
(2002).

The Merits of the Claims

The appellant contends that he has a kidney disorder and PTSD
that both stem from a single, in-service incident, where he
was assaulted by pipe-wielding fellow soldiers.  He argues
that although his kidney disorder has been diagnosed to be
congenital in nature, it was aggravated by the in-service
assault.  He further contends that he developed PTSD as a
direct result of the service incident in question.

Service connection may be granted for disability or injury
incurred in or aggravated by active military service.  38
U.S.C.A. � 1110.  The resolution of this issue must be
considered on the basis of the places, types and
circumstances of his service as shown by service records, the
official history of each organization in which the claimant
served, his medical records and all pertinent medical and lay
evidence.  Determinations relative to service connection will
be based on review of the entire evidence of record. 38
C.F.R. � 3.303(a).

As a general matter, service connection for a disability on
the basis of the merits of such claim is focused upon (1) the
existence of a current disability; (2) the existence of the
disease or injury in service, and; (3) a relationship or
nexus between the current disability and any injury or
disease during service.  See Cuevas v. Principi, 3 Vet. App.
542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).

The Board has carefully examined all of the evidence of
record, and is of the opinion that the clear preponderance of
the evidence is against the claims.  As to the appellant's
kidney claim, the record does not reflect that the appellant
sustained trauma to his kidneys as he recently has reported.
In this respect, the appellant's claim fails on prongs one
and three of the inquiry that is outlined above.  As to the
appellant's claimed psychiatric disorder, the record does not
substantiate that the appellant has the claimed disorder,
thus precluding a grant of service connection under the first
component of the foregoing paragraph.

The Service Medical Records:

Both of the appellant's claims stem from his account of an
in-service assault he claims to have sustained in December
1965.  In a January 1995 letter, the appellant stated that he
was assaulted in December 1965 while he was on his way to a
bar.  He stated that he was hit in the head with a pipe and
that he "was severly (sic) beaten and kicked in [his]
kidney."  The appellant added that this had aggravated his
kidney condition and that he had had continuous symptoms
thereafter.  The appellant added that contrary to his service
medical records, he was not intoxicated on the night in
question.

However, the appellant's service medical records do not
demonstrate that he was beaten with a pipe or kicked in the
kidneys as he has alleged.  The records include a December 1,
1965, chronological record of medical care, where a service
department medical care provider in Okinawa recorded that the
appellant reported to a military hospital emergency room in
an intoxicated condition.  He was noted to have received a
laceration in the area of the right zygomatic area, which the
appellant reported, had been sustained when an "unknown"
assailant struck him.  Radiographic examination of his skull
and a physical examination, including a neurological inquiry,
revealed no abnormalities.  It was noted that a "small
laceration" was washed and dressed.

In a series of entries in November 1967, the appellant's
service medical records also document that while the
appellant was stationed at Fort Hood, Texas, it was noted
that the appellant reported that he was seen by his family
physician while on leave for a possible kidney infection and
associated back pain.

On January 22, 1968, the appellant completed a service
department physical examination prepatory to his discharge.
In a report of medical history questionnaire, the appellant
denied having intestinal trouble, gall bladder trouble or
gall stones, frequent or painful urination, kidney stone or
blood in his urine, bone, joint or other abnormality, or
nervous trouble of any sort.  He also denied having had any
illness or injury other than that which was noted.  The
appellant reported that he was "in excellent health."  In a
separate report of medical examination, clinical evaluation
of the appellant's abdomen and viscera, genitourinary system,
neurological and psychiatric systems demonstrated no
abnormalities.  In a summary of defects and diagnoses, the
examining military medical officer reported that the
appellant had amblyopia of one eye, which was also noted in
the appellant's service entrance examination.

The appellant's PULHES physical profile noted to be:

Physical
Capacity
and
Stamina
Upper
Extremit
ies
Lower
Extremit
ies
Hearing
and Ears
Eyes
Psychiat
ric
Conditio
n
1
1
1
1
2
1

See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992);
(Observing that the "PULHES" profile reflects the overall
physical and psychiatric condition of the veteran on a scale
of 1 (high level of fitness) to 4 (a medical condition or
physical defect which is below the level of medical fitness
for retention in the military service.

On February 5, 1968, prior to his discharge, the appellant
reported that there had been no change in his medical
condition since undergoing the physical examination the
previous month.

The Kidney Disorder:

The appellant first sought service connection for a kidney
disorder in December 1978.  In development of the claim, a
November 1978 VA hospitalization record was obtained,
reflecting that the appellant had been treated for a
hydronephrosis secondary to a left ureteropelvic junction
obstruction.  The hospital report reflects that it was then
determined that although it had been suspected the appellant
had a spastic colon, it had recently been discovered that the
appellant had the hydronephrosis, which examiners described
as a congenital condition.  There is no mention of any
incident of the appellant's military service contained in the
report.

In a July 1979 statement, the appellant related that he never
had any difficulties with his kidneys prior to active duty,
and that he had consulted his family physician while on leave
from military service.  The appellant provided other
information as to then recent treatment for the kidney
disorder, but did not mention or allude to any incident of
military service or existent medical opinion as to the source
of his kidney disorder.

Obtained in the course of the appellant's then-pending claim,
VA hospitalization reports of September 1979, December 1993,
and July 1994 indicate that the appellant had undergone
repair of the ureteropelvic junction obstruction, and that he
was then underwent further surgical procedures.  There is no
mention of any incidents of the appellant's military service
in these reports, and all are silent as to any cause of the
appellant's condition.

In support of his claim, the appellant submitted a letter
from Patrick Cadigan, M.D., who stated that the appellant's
"left kidney injury diagnosed as a congenital kidney
blockage could have been caused by an injury suffered in 1966
when the [appellant] was assaulted during a racial incident
during his military service."  Similarly, in a March 1996
letter, D.M. Kaji, M.D. reported that she first treated the
appellant two months earlier for a long history of kidney
problems, and that "[the appellant] believes that his
problems began following an episode of blunt trauma in
1967."

As is noted above, VA medical records documenting care of the
appellant's kidney disorder have been obtained and show care
since approximately 1978.  As to the cause of the disorder,
there is no mention of any incident of the appellant's
military service.  In a June 1997 chronological progress
note, it is indicated that the appellant had a "congenital
problem of obstruction of the [ureteropelvic junction]."

In November 2000, and pursuant to the Board's remand of the
previous May, the RO caused the appellant's VA claims folder
to be examined by William D. Kaehny, M.D., acting chief of
the Renal Section at a VA Medical Center and a professor of
renal diseases and hypertension at a university medical
school.

In his report, Dr. Kaehny detailed the appellant's service
and post-service medical history as reflected in the
appellant's claims folder.  He also reported the appellant's
account of having been assaulted while in service, as is
described above, as well as the opinion of Dr. Cadigan.

Dr. Kaehny opined that there was no incident of military duty
that caused the appellant's left ureteropelvic junction
obstruction and that "almost all are congenital."  He
further observed that while there were some that were
secondary to unusual causes, none of these agents were noted
in the appellant's case.  Further, he noted that while those
with ureteropelvic junction obstruction may have suffered
injury from blunt trauma to a distended kidney, such a
rupture would have resulted in urinary leakage and hematuria,
none of which was noted in the appellant's case.

The Board begins by observing that in the evaluation of
evidence, VA adjudicators may properly consider internal
inconsistency, facial plausibility and consistency with other
evidence submitted on behalf of the veteran.  See Caluza v.
Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604
(Fed. Cir. 1996) (per curiam) (table).  It has also been
observed that the Board has the "authority to discount the
weight and probative value of evidence in light of its
inherent characteristics in its relationship to other items
of evidence."  Madden v. Brown, 125 F. 3d 1447, 1481 (Fed.
Cir. 1997).

With this background, the Board first finds that the evidence
of record does not indicate that the appellant sustained
trauma to the kidneys as he has alleged.  The record instead
indicates that while in December 1965, the appellant
sustained a "small laceration" to an area above his eye,
from an unknown assailant, while he was intoxicated.

The record thus belies the appellant late account of having
been assaulted by trauma to the kidneys.  Indeed, because the
appellant is not a combat veteran, the law requires that
there be corroborative evidence of the claimed in-service
event, either by way of service medical or other records.
cf. 38 U.S.C.A � 1154(b); Collette v. Brown, 82 F.3d 389
(Fed.Cir. 1996).  Other than the appellant's late assertion
of having been so assaulted, there is not a scintilla of
corroboration for a finding that would support trauma to the
kidneys in the manner alleged.

The Board finds that the appellant's service medical records
are highly probative, because contrary to the appellant's
account of having sustained the trauma in question and having
continuous renal difficulty thereafter, there is no mention
in these reports of a continuing kidney difficulty as a
result of the now claimed in-service assault.

Moreover, the Board finds the appellant's service medical
records generated contemporaneous with the assault highly
probative because they were prepared for the specific purpose
of diagnosis and treatment.  See, e.g., Rucker v. Brown, 10
Vet. App. 67, 73 (1997) (Observing that although formal rules
of evidence do not apply before the Board, recourse to the
Federal Rules of Evidence may be appropriate if it assists in
the articulation of the reasons for the Board's decision);
see also Flynn v. Brown, 6 Vet. App. 500, 503 (1994).  When
these records are compared with the appellant's first account
of his kidney disorder (which did not mention the alleged
assault), and the appellant's late account, specifically
provided in the course of a claim for compensation, the Board
finds the appellant's account of being kicked in the kidneys
to be unsupported in record and wholly false.  See Owens v.
Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet.
App. 36 (1994) (Observing that it is the Board's fundamental
responsibility to evaluate the probative value of all medical
and lay evidence.

To this extent, the opinions of Drs. Cadigan and Kaji are of
no probative value, as they are premised upon the assumption
that the appellant's claimed in-service assault occurred as
the appellant has alleged.  The law provides in this regard
that the mere transcription of medical history does not
transform the information into competent medical evidence
merely because the transcriber happens to be a medical
professional.  See Leshore  v. Brown, 8 Vet. App. 406, 409
(1995); Swann v. Brown, 5 Vet. App. 229, 233 (1993).

Moreover, apart from the finding that the appellant was not
the victim of the assault in the manner in which he alleged,
the bulk of the informed medical evidence indicates that the
appellant's congenital kidney disorder was not incurred or
aggravated by military service.  See Holbrook v. Brown, 8
Vet. App. 91 (1995) (The Board has the fundamental authority
to decide a claim in the alternative.).

Both under the VCAA as well as previously existing law, the
affording of medical inquiry with accounting for all medical
evidence is necessary for a proper and informed adjudication
of the claim.  Shipwash v. Brown, 8 Vet. App. 218, 222
(1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995). The
evaluation of medical evidence involves inquiry into, inter
alia, the medical expert's personal examination of the
patient, the physician's knowledge and skill in analyzing the
data, and the medical conclusion that the physician reaches.
See, e.g., Guerrieri v. Brown, 4 Vet. App. 467, 470-471
(1993).

In this matter, the text of Dr. Kaehny's opinion reveals that
the physician was well informed of the appellant's medical
history, including as developed in his service medical
records and post-service treatment.  Of particular note,
based upon his comprehensive review of the record, Dr. Kaehny
responded to the three central questions posed by this
matter; involving the appellant's current diagnosis;
probability of a military connection, and an assumed-to-be-
credible account of the appellant's claimed in-service
trauma.

Critically, in light of the Board's disposition of the claim,
Dr. Kaehny opined that even assuming the appellant's account
of the in-service assault to be credible, such an incident
would not have led to the appellant's current disorder.

The Board observes that through his representative, the
appellant has argued that the obtaining of Dr. Kaehny's
opinion, without a separate medical examination, is violative
of the ruling in Stegall v. West, 11 Vet. App. 268, 271
(1998) (The compliance by the Board or the RO with a remand
directive is neither optional nor discretionary, and failure
to so comply results in error as a matter of law).

The Board finds this contention is without merit.  First, the
Board notes that Stegall did not address expressly the
situation here where the factual premises underlying the
original directive have changed since the Board's remand.
Based upon a review of the entire record, including the
demonstration that the claim that PTSD had been diagnosed was
false, the Board now has and must conclude that the
claimant's evidentiary assertions in support of his claims
for monetary benefits completely lack credibility. Not only
does the contemporary evidence from service refute the
allegation of blunt trauma to the kidney, but also the most
recent examiner further pointed out that the record fails to
reflect the presence of urinary leakage and hematuria which
would have been the key indicators of blunt trauma.  If there
was no injury or disease in service, then the question of
whether a current disability is causally related to service
is moot.  As the Court held in Soyini v. Derwinski, 1 Vet.
App. 540 (1991):

. . . strict adherence [to the law] does not
dictate an unquestioning, blind adherence in
the face of overwhelming evidence in support
of the result in a particular case.  Such
adherence would result in the Court's
unnecessarily imposing additional burdens on
the [Board of Veterans' Appeals] and [the
Department of Veterans Affairs] with no
benefit flowing to the veteran.

Since it is overwhelmingly clear as a matter of fact and law
that the veteran can not prevail on his claim for service
connection if the Board finds there was no injury or disease
in service that could be linked to a current disability, it
would be a pointless waste of scare resources to seek a
further medical opinion or examination in this matter.  See
Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v.
Derwinski, 2 Vet. App. 51, 53 (1992).  (Observing that
evidence of the appellant's current condition is not
generally relevant to the issue of service connection, absent
some competent linkage to military service).

Second, it is clear that even assuming the credibility of the
appellant's account, Dr. Kaehny had the same information
before him in rendering this opinion that he would have had
garnered from a personal interview with the appellant.  Dr.
Kaehny's opinion is comprehensive, well-informed and directed
towards resolution of the principal issues in this case, and
a further remand for the purpose of another physical
examination, simply for the examiner to obtain the
appellant's now-oft repeated account of his claimed in-
service assault and his subsequent medical history, would
serve no useful purpose and would only impose unnecessary
burdens on VA and the Board.  See 38 U.S.C. � 7261(b); Reyes
v. Brown, 7 Vet. App. 113, 116 (1994); Soyini, supra.

The appeal is therefore denied.

PTSD:

The appellant asserts that he has PTSD as a result of the
claimed, in-service assault.  As noted above, after carefully
reviewing the evidence of record, the Board observes that the
appellant has not been diagnosed to have the disorder, and
his claim fails on this basis.

The appellant underwent a VA psychiatric examination in
January 1979.  He reported that he had developed a nervous
condition while in the Army at Fort Benning, Georgia.  The
appellant was diagnosed to have an anxiety neurosis.  The
examiner rendered no linkage of the appellant's anxiety
neurosis to his military service.

In a December 1995 statement, the appellant first reported
that he was undergoing treatment for PTSD, associated with
the alleged in-service assault.  In April 1996, the appellant
stated that Terry Wilkins, M.D., a physician at a VA Medical
Center, had rendered the diagnosis.

In due course of development of the appellant's claim, the RO
obtained a copy of a VA psychiatric examination conducted in
connection with an August 1995 hospitalization.  The
appellant reported depression, decreased concentration, and
possible suicidal ideation.  Other than its historical
occurrence, the report of hospitalization and examination is
devoid of any mention of the appellant's military service.
In part, the appellant was diagnosed to have a major
depressive episode, marijuana abuse, cocaine abuse, and
opiate abuse and dependency.

In another report of VA hospitalization dated in July 1996,
the appellant was diagnosed to have a personality disorder
with recurrent major depression.  It was noted that a
diagnosis of PTSD had previously been specifically ruled out
during the course of a prior hospitalization.  Examination of
the appellant's claims folder confirms that during a November
1995 hospitalization for prescription drug abuse, the
appellant reported that he had been previously diagnosed to
have PTSD, which had not been substantiated by the authors of
the November 1995 hospitalization report.

In a June 2000 statement, the appellant reported that it was
during the 1995 to 1996 time frame that he had been diagnosed
to have PTSD by Dr. Wilkins, a VA physician, and that he had
been "put into a PTSD controlled study group, where [he] was
put under many different tasks."

In turn, and pursuant to the Board's remand, the RO obtained
updated copies of the appellant's VA medical records from the
facility at which the appellant claimed to have been so
diagnosed and treated.  However, these records do not
substantiate the appellant's account of having been found to
have the disorder in question.  Indeed, the record indicates
that the appellant has been repeatedly diagnosed to have a
personality disorder and polysubstance abuse difficulties,
without reference to any incident of his military service.

Evidence submitted in support of a claim for VA benefits is
generally presumed to be credible in the stage of
development, unless the statements are inherently incredible
or beyond the competence of the person making them.  Meyer v.
Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet.
App. 19, 21 (1993); see Samuels v. West, 11 Vet. App. 433,
436 (1998)(Where veteran's account of having sustained post-
traumatic stress disorder precipitating stressors while
serving in Vietnam rejected where evidence showed veteran
never to have served in Vietnam).

However, the appellant's account of having been diagnosed to
have PTSD is not substantiated by record.  In this regard,
the law limits entitlement for service-related diseases and
injuries to cases where the underlying in-service incident
has resulted in a disability.  In the absence of proof of a
present disability, there is no valid claim presented.
Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v.
Derwinski, 2 Vet. App. 141 (1992).  See 38 C.F.R. � 3.304(f)
(Service connection for PTSD requires medical evidence
establishing a diagnosis of the condition, credible
supporting evidence that the claimed in-service stressors
actually occurred, and a link, established by medical
evidence, between the current symptomatology and the claimed
in-service stressors.); 38 C.F.R. � 4.1; Davis v. Principi,
276 F.3d 1341, 1345 (Fed. Cir. 2002) [Citing with approval
VA's definition of "disability" in 38 C.F.R. � 4.1 and
"increase in disability" in 38 C.F.R. � 3.306(b)]; see also
Leopoldo v. Brown, 4 Vet. App. 216, 219 (1993) (A
"disability" is a disease, injury, or other physical or
mental defect.").

Because the appellant has not been diagnosed to have PTSD,
his appeal is denied.

ORDER

Service connection for a kidney disorder is denied.

Service connection for PTSD is denied.

	Richard B. Frank
	Member, Board of Veterans' Appeals

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

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


judge_norm: ROBERT P REGAN

disposition: granted

text:
Citation Nr: 0213000
Decision Date: 09/25/02    Archive Date: 10/03/02

DOCKET NO.  01-06 400	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been submitted in order
to reopen a claim of entitlement to service connection for
postoperative residuals, arthritis of the right ankle.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. L. Bunch, Associate Counsel

INTRODUCTION

The veteran served on active duty from February 1943 to
October 1945.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a rating decision by the Roanoke,
Virginia regional office (RO) of the Department of Veterans'
Affairs (VA).

This appeal only addresses the issue of whether new and
material evidence has been submitted to reopen the veteran's
claim of service connection for a right ankle disorder.
Further development will be conducted on the issue of service
connection for a right ankle disorder on a de novo basis
pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104
(Jan. 23, 2002) (to be codified at 38 C.F.R. �19.9(a)(2)).
When it is completed, the Board will provide notice of the
development as required by Rule of Practice 903.  (67 Fed.
Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at 38
C.F.R. � 20.903).  After giving the notice and reviewing your
response to the notice, the Board will prepare a separate
decision addressing this issue.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's claim has been developed.

2.  In February 1994 the RO denied service connection for a
right ankle sprain and arthritis of the right ankle.  The
veteran did not appeal that decision.

3.  The evidence received subsequent to the unappealed
February 1994 rating decision is so significant that it must
be considered to fairly decide the merits of the claim.

CONCLUSION OF LAW

The additional evidence received since the RO's unappelaed
February 1994 decision, which denied service connection for
right ankle disorders is new and material and the
requirements to reopen the veteran's claim of entitlement to
service connection for a right ankle disorder have been met.
38 U.S.C.A. �� 5108, 7105 (West 1991); 38 C.F.R. � 3.156
(2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA).  See,
38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West Supp. 2001).  In
particular, this law redefines the obligations of VA with
respect to the duty to notify and to assist.  This change in
the law is applicable to all claims filed on or after the
date of enactment of the VCAA, or filed before the date of
enactment but not yet final as of that date.  VCAA, Pub. L.
No. 106-475, � 7(a), 114 Stat. 2096, 2099-2100 (2001),
38 U.S.C.A. � 5107 note (Effective and Applicability
Provisions) (West Supp. 2001).

The final regulation implementing the VCAA was published on
August 29, 2001.  66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (to
be codified as amended at 38 C.F.R. �� 3.102, 3.156(a),
3.159, and 3.326(a)).  These regulations, likewise, apply to
any claim for benefits received by VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by VA as of that date, with the exception of the
amendments relating to claims to reopen previously denied
claims, which are applicable to the current appeal.

In this regard the veteran was notified of the evidence
needed to substantiate his claim in the statement of the
case. All pertinent available records necessary to reopen his
claim have been obtained.  Thus, the Board concludes that the
VA has satisfied the requirements set forth in the VCAA.

The law provides that service connection may be granted for a
disability resulting from disease or injury incurred in or
aggravated by service.  38 U.S.C.A. �� 1110, 1131 (West 1991
and Supp. 2001).

Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d) (2001).

Additionally, where a veteran served continuously 90 days or
more during a period of war or during peacetime service after
December 31, 1946, and arthritis becomes manifest to a degree
of at least 10 percent within one year from the date of
termination of service, such disease shall be presumed to
have been incurred in or aggravated by service, even though
there is no evidence of such a disorder during the period of
service.  38 U.S.C.A. �� 1101, 1112, 1113 (West 1991 & Supp.
2001); 38 C.F.R. �� 3.307, 3.309 (2001).

The evidence of record at the time of the February 1994
decision is briefly summarized.  The veteran's service
medical records (SMR's) show that the veteran was treated at
the dispensary in March 1943 for a right ankle sprain.  The
separation examination showed no pertinent abnormality.

A VA examination was conducted in January 1949.  The
diagnoses included history of mild chronic recurring foot
strain.  Subsequently he received treatment at VA and private
facilities for various disorders including osteoarthritis.  A
VA examination was conducted in January 1994.  The diagnoses
included ankle injury with degenerative changes.

In February 1994 the RO denied service connection for a right
ankle sprain and arthritis of the right ankle.  At that time
the RO found that arthritis was first manifested many years
after service and was unrelated to service.  It was further
determined that the in service right ankle sprain was acute
and resolved with any chronic residuals.  The veteran was
notified of this decision and of his appellate rights.  He
did not appeal this determination.

Accordingly, the February 1994 decision is final.
38 U.S.C.A. � 7105.  However, the veteran may reopen his
claim by the submission of new and material evidence.  38
U.S.C.A. � 5108 (West 1991); 38 C.F.R. � 3.156 (2001).

New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim.  See Hodge v. West, 155 F. 3d
1356 (Fed. Cir. 1998); 38 C.F.R. � 3.156(a) (2001).

The evidence received subsequent to the last final decision
is presumed credible for the purposes of reopening the
veteran's claim unless it is inherently false or untrue, or
is beyond the competence of the person making the assertion.
See Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also
Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).

The evidence received since the February 1994 decision
includes private medical records which show that the veteran
was diagnosed with post-traumatic arthritis in the right
ankle and underwent a total ankle arthroplasty in September
1999.  Also submitted was a private medical statement, dated
in March 2000, from the veteran's treating physician which is
to the effect that the veteran had a remote history of trauma
to his right ankle during his service years.  The physician
stated that it was certainly conceivable that the
degenerative arthritis present in the right ankle was from
recurrent repeated injuries, which would have caused his
post-traumatic degenerative joint disease.

The veteran provided testimony during a hearing before the
undersigned member of the Board sitting at Washington, D. C.
in July 2002.

To summarize, the Board finds that the March 2000 statement
from the veteran's physician is new and material evidence in
the physician relates the arthritis of the right ankle to
military service.  Accordingly, the claim is reopened.

ORDER

New and material evidence having been submitted the claim for
entitlement to service connection for postoperative
residuals, arthritis of the right ankle, is reopened and the
claim to this extent only is granted.

	ROBERT P. REGAN
	Member, Board of Veterans' Appeals

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

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


judge_norm: STEPHEN L WILKINS

text:
Citation Nr: 0214000
Decision Date: 10/09/02    Archive Date: 10/17/02

DOCKET NO.  97-28 100	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an effective date earlier than August 23,
1994, for the award of a total compensation rating based on
individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Associate Counsel

INTRODUCTION

The veteran had active service from February 1962 to November
1980.

This case initially came to the Board of Veterans' Appeals
(Board) on appeal from a March 1996 decision of the RO.

The record indicates the veteran failed to appear at his
scheduled hearing before the RO in October 1998.

The Board remanded the case to the RO for additional
development of the record in July 1999.

In correspondence received in September 2000, the veteran
withdrew his appeal of the issues of an earlier effective
date for the increased rating for the service-connected
bilateral hearing loss and service connection for the claimed
residuals of a shell fragment wound of the right leg.

The Board also notes that the veteran, who performed service
in the Republic of Vietnam, is shown by the medical evidence
to suffer from diabetes mellitus.  This is referred to the
attention of the RO for appropriate action.

FINDINGS OF FACT

1.  The veteran's original claim for compensation (on VA Form
21-526) was received in June 1981.

2.  In a rating decision in May 1984, the RO assigned
increased ratings that resulted in a combined 70 percent
rating for the veteran's service-connected disabilities,
effective on December 9, 1983; however, no evidence of
service-connected unemployability was demonstrated at that
time.

3.  On June 12, 1985, a VA staff psychiatrist opined that the
veteran was not capable of sustaining employment at that time
or for the immediate future due to service-connected
disability.

4.  On June 5, 1990, the veteran submitted a formal claim for
increased compensation benefits.

5.  The veteran's service-connected disability is shown to
have prevented him from engaging in substantially gainful
employment beginning on June 12, 1985.

CONCLUSION OF LAW

An effective date of June 12, 1985, for the award of TDIU is
warranted.  38 U.S.C.A. � 5110 (West 1991 & Supp. 2002); 38
C.F.R. �� 3.155, 3.157, 3.400(o), 4.16 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duty to Assist and Provide Notice

There has been a significant change in the law during the
pendency of this appeal.  On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).

This law redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.

This law also eliminates the concept of a well-grounded claim
and supersedes the decision of the United States Court of
Appeals for Veterans Claims in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had
held that VA cannot assist in the development of a claim that
is not well grounded.

This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA, or filed before
the date of enactment and not yet final as of that date.
VCAA, Pub. L. No. 106-475, � 7, subpart (a), 114 Stat. 2096,
2099-2100 (2000).  See also Karnas v. Derwinski, 1 Vet. App.
308 (1991).

To implement the provisions of the law, VA promulgated
regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a)).  The implementing regulations are meant to define
terms used in the Act, and provide guidance for carrying out
the requirements of the Act.

The regulations, with the exception of development in the
case of attempts to reopen finally denied claims made after
August 21, 2001, are not meant to bestow any new rights.  66
Fed. Reg. 45,629 (Aug. 29, 2001).  Thus, the veteran is not
prejudiced by the Board's initial application of the
regulations to his claim.

In this case the veteran's application appears to be intact.
He has been informed of the information necessary to
substantiate his claim via the Statement of the Case, the
Supplemental Statement of the Case, and the Remand by the
Board.  There does not appear to be any relevant evidence
that has not been associated with the claims folder.  The
record contains sufficient information to decide the claim.

The Board notes that the issue in this case is a legal one.
The veteran is not prejudiced thereby, because there is no
factual development which could require VA assistance or
additional notice.

Hence, no further assistance to the veteran is required to
fulfill VA's duty to assist him in the development of the
claim.  38 U.S.C.A. �� 5103, 5103A (West Supp. 2001).

II.  An Effective Date Earlier than August 23, 1994,
for the Award of a TDIU

A.  Factual Background

The veteran submitted his original claim for VA benefits in
June 1981.  In a statement supporting his claim, the veteran
reported that he had been unable to find gainful employment
since his discharge from service.

In a September 1981 rating decision, the RO assigned a
combined rating of 40 percent for the veteran's service-
connected disabilities, effective in November 1980.

In August 1983, the RO notified the veteran that the rating
for the service-connected impaired hearing had been increased
to 40 percent and that his combined rating was 60 percent.

In a May 1984 rating decision, the RO granted service
connection and assigned a 30 percent rating for post-
traumatic stress disorder.  The RO also reduced the rating
for the service-connected hypertension from 20 to 10 percent.
The 20 percent rating for the service-connected lumbosacral
strain was confirmed and continued.  A combined rating of 70
percent became effective on December 9, 1983.

The veteran was notified of the rating action in a letter
dated June 11, 1984.  He also was apprised of his appellate
rights.

The veteran disagreed with the reduction of the rating
assigned for the service-connected hypertension.  The RO
provided him with a Statement of the Case in August 1984, but
he did not perfect a timely appeal as to that matter.

A summary report of VA psychiatric treatment dated on June
12, 1985 reflects a staff psychiatrist's opinion that the
veteran was not capable of sustaining employment at that time
or in the immediate future due to service-connected
disability.

In June 1990, the veteran filed a claim for increased
compensation benefits.  In his application, he reported that
he was only receiving VA compensation benefits.

The VA medical records show that the veteran underwent a
Mental Hygiene Clinic Intake Evaluation in March 1990 and was
referred to a PTSD group.  In June 1990, it was noted that
the veteran had remained idle, but thought that he would be
able to obtain a job in the construction field.  He reported
that he had not worked in 10 years.  In July 1990, it was
noted that the veteran had been denied the job.

In September 1990, the RO notified the veteran that his claim
for increased compensation had been denied.  He was notified
of his appeal rights.  The veteran did not pursue a timely
appeal.

The VA vocational rehabilitation records reflect that the
veteran registered for courses beginning in 1983 and that he
encountered difficulties with academic progress and
attendance.  In September 1984, he received adjustment
counseling due to making marginal and unsatisfactory
progress.  The veteran indicated that academic deficiencies
had hampered him, but felt that his nervous condition was
giving him some problems.  It was noted that he would begin a
treatment program and expected to return to the Upward Bound
Program.  In July 1991, it was noted that the veteran's
benefits had been discontinued due to his failure to pursue
the rehabilitation process.  He was notified that he could
reactivate his claim.

When evaluated for the purpose of determining the veteran's
eligibility and feasibility for vocational rehabilitation in
April 1993, it was noted that the veteran had a "serious
employment handicap" and that he was eligible for vocational
rehabilitation services.  In May 1993, the veteran was
notified that his benefits had been discontinued because he
did not keep in touch or develop a plan.  He was informed
that he could reactivate his claim.  In August 1995, the
veteran canceled a counseling appointment and noted that he
wished to wait until a "C&P Board" completed his evaluation.

The veteran's formal claim for a TDIU was received by VA on
August 23, 1994.

In March 1996, the RO granted a TDIU effective from the date
construed to be the date of receipt of the veteran's formal
claim on August 23, 1994.

In February 2001, the RO received records from the Social
Security Administration (SSA) showing that the veteran's
service-connected disabilities apparently had been determined
to have been of such severity as to restrict work-related
functions as of November 29, 1984.

B.  Legal Analysis

The veteran contends that he is entitled to an effective date
earlier than August 23, 1994, for the award of TDIU benefits.

Under applicable criteria, the effective date for increased
compensation is the earliest date as of which it is factually
ascertainable that an increase in disability has occurred, if
application is received within one year from such date,
otherwise, the date of receipt of the claim.  38 U.S.C.A. �
5110 (b)(2); 38 C.F.R. � 3.400(o)(2); Harper v. Brown, 10
Vet. App. 125, 126-27 (1997).

A claim for a TDIU, in essence, is a claim for an increased
rating.  Norris v. West, 12 Vet. App. 413, 420 (1999).  A
TDIU claim is an alternate way to obtain a total disability
rating without recourse to a 100 percent evaluation under the
rating schedule.  See, e.g., Parker v. Brown, 7 Vet. App.
116, 118 (1994).

Additionally, 38 C.F.R. � 3.157(a) provides that a report of
hospitalization which meets the requirements of this section
will be accepted as an informal claim for benefits, if the
report relates to a disability which may establish
entitlement.  38 C.F.R. � 3.157(a).  Further, 38 C.F.R.
� 3.157(b)(1) provides that the date of an outpatient or
hospital examination or admission to a VA or uniformed
service hospital will be accepted as the date of receipt of a
claim for increased benefits.

In a May 1984 rating decision, the veteran's service-
connected disabilities were rated as follows:  bilateral
hearing loss, 40 percent; PTSD, 30 percent; lumbosacral
strain, 20 percent; and hypertension, 10 percent.  With the
then assigned combined rating of 70 percent, the veteran's
service-connected disabilities met the percentage
requirements for a TDIU; however, the veteran did not pursue
a timely appeal from that rating determination.

Based on its review of the record, the Board finds also that,
during this period, there had been presented no evidence of
service-connected unemployability that could be reasonably
construed as raising a claim for TDIU.  It is pertinent to
note in this regard that the veteran had been found to be
feasible for participation in the vocational rehabilitation
program beginning in December 1983.

Although recently received records show that the veteran had
been determined to be disabled by SSA as of November 29,
1984, these documents were not received by the RO until
February 2001.  See, e.g., Hurd v. West, 13 Vet. App. 449
(2000), (where an effective date earlier than 1992 for a TDIU
was not warranted due to Social Security records submitted in
1996 showing unemployability as early as 1983).  It is not
shown by the record that, prior to that time, the veteran had
ever indicated that he was receiving such disability
benefits.

The VA summary report of psychiatric treatment dated on June
12, 1985 is clear evidence of unemployability.  Furthermore,
it is considered a claim for an increase and TDIU pursuant to
38 C.F.R. � 3.157.  As such, the Board finds that a TDIU
claim had been submitted on June 12, 1985.

Inasmuch as a claim for TDIU had been pending since June 12,
1985, and the effective date for the grant of TDIU by the RO
in March 1996 was based on the date of the claim, the Board
is of the opinion that the effective date for the award of
TDIU should be retroactive to June 12, 1985.  The evidence
shows that the veteran was unemployable due to service-
connected disability at that time.  38 C.F.R. � 3.400(o)(2).

Hence, viewing the evidentiary record in its entirety, the
criteria for an effective date of June 12, 1985 for the award
of TDIU have been met.

ORDER

An effective date of June 12, 1985, for the assignment of
TDIU is granted, subject to the regulations applicable to the
payment of monetary awards.

	STEPHEN L. WILKINS
	Member, Board of Veterans' Appeals

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

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