judge_norm: NANCY I PHILLIPS

text:
Citation NR: 9736000
Decision Date: 10/27/97		Archive Date: 11/04/97
DOCKET NO.  94-41 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUE

Entitlement to service connection for chronic low-back
disability.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Mainelli, Associate Counsel

INTRODUCTION

The appellant had active service from September 1952 to
September 1954.

This case comes before the Board of Veterans� Appeals (Board)
on appeal from a February 1992 rating decision, in which the
Nashville, Tennessee, Regional Office (RO) of the Department
of Veterans Affairs (VA) denied service connection for
residuals of a back injury.

The issue which was certified on appeal was characterized,
and adjudicated, as entitlement to service connection for a
back condition.  However, a Supplemental Statement of the
Case, dated March 1997, references the �new and material�
standards in its �pertinent laws and regulations� section.
The Board has carefully reviewed the record, and finds that
finality is not involved.  The issue of service connection
for a back condition was initially denied by rating decision
in February 1992.  By Form 21-4138 dated July 1992, the
appellant filed a notice of disagreement with the denial.
The appellant was issued a �statement of the case� in August
1992 which informed the appellant that the RO had requested
records from the NPRC and, upon receipt of the records, he
would be �notified of [its] determination.�  In August 1994,
the RO issued a Statement of the Case and, by Form 9 dated
October 1994, the appellant filed his Substantive Appeal to
the Board.  Accordingly, the issue is properly characterized
as entitlement to service connection for chronic low-back
disability, and de novo review of the record is in order.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends, in essence, that his chronic
symptomatology of intermittent low back pain and inability to
straighten after bending is causally related to an in service
incident in which his back �locked up� and required several
days of bedrest.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), 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 supports service connection for chronic low-back
disability.

FINDINGS OF FACT

1.  All evidence necessary for an equitable disposition of
the appellant�s claim for service connection of chronic low-
back disability has been developed.

2.  The appellant sustained an injury to the back while in
service.

3.  The appellant�s currently diagnosed chronic low-back
syndrome was first manifested during active service.

CONCLUSION OF LAW

Chronic low-back disability was incurred in service.
38 U.S.C.A. �� 1110, 1111, 1154(b) (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the appellant has submitted a
claim which is �well-grounded� within the meaning of 38
U.S.C.A. � 5107(a).  That is, he has submitted �a plausible
claim, one which is meritorious on its own or capable of
substantiation.�  Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990).  Furthermore, the appellant has undergone a recent VA
examination and the record does not reveal any additional
sources of relevant information which may be available
concerning the present claim.  The Board accordingly finds
the duty to assist him, mandated by 38 U.S.C.A. � 5107, has
been satisfied.

In order to service connect his disability, the appellant
must present evidence of 1) a current disability as provided
by a medical diagnosis; 2) evidence of incurrence or
aggravation of a disease or injury in service as provided by
either lay or medical evidence, as the situation dictates;
and 3) a nexus, or link, between the in-service disease or
injury and the current disability as provided by competent
medical evidence.  See Caluza v. Brown, 7 Vet.App. 498
(1995); see also 38 C.F.R. � 3.303 (1996); Layno v. Brown, 6
Vet.App. 465 (1994); Espiritu v. Derwinski, 2 Vet.App. 492
(1992).

The appellant contends that his current low-back disability
was first manifested while he was stationed at a Mobile Army
Surgical Hospital (MASH) unit at �Pork Chop Hill� in Korea.
In support of his claim, he has testified that, while bending
over to dig a foxhole, his back �locked� on him and he was
unable to straighten to an upright position.  He also
testified that he underwent an x-ray examination and that his
injury required several days of bedrest.

The only available service medical record, which consists of
a separation examination, is negative for complaints of,
treatment of, or diagnosis of a back condition.  No other
SMR�s have been located and an alternative search of morning
reports, for the period of June through August 1953, was
negative.  Although SMR�s are unavailable to verify treatment
for a back injury, the Board notes that the appellant was
performing duties during wartime in a combat area and he has
testified to an injury which is consistent with the
circumstances and conditions of his service, namely digging a
foxhole.  Discerning no clear and convincing evidence
otherwise, the Board accepts the appellant�s testimony as
evidence of incurrence of a back injury during service.
38 C.F.R. � 1154(b) (1991).

In 1976, the appellant was admitted for 3 days in the
Vicksburg Hospital for complaints of pain radiating down into
his right buttock.  Review of his past history indicated that
the appellant had experienced a similar, but more severe,
episode of pain while in service.  He also reported
intermittent episodes of back pain since service.  He denied,
however, requiring prior hospitalization or bedrest for his
problem.  Back examination revealed that the back was flat in
the lumbar area.  Straight leg raising, with pain, was to 20
degrees on the left and 45 degrees to the right.  There
appeared to be a slight sensory loss along the lateral aspect
of the right foot.  X-ray examination revealed that the
vertebral bodies were well aligned and, with the exception
for a slight narrowing at the L5-S1 level, intervertebral
spaces were well-maintained.  There were no associated
osteophytes at the L5-S1 level.  There was no evidence of
fracture or subluxation.  No destructive bony lesions or
significant congenital anomalies were identified.  Impression
was that of a normal lumbar spine except for equivocal slight
narrowing of the L5-S1 intervertebral disc space.

Outpatient treatment records, dated from March 1990 to July
1994, reveal complaints of intermittent lower back pain.  In
October 1989, the appellant reported the onset of back pain,
similar to his episode in Korea, after sitting for a
prolonged period of time and diagnosis was of a lower back
pain syndrome.  Physical examination was within normal limits
though a �slight� straightening of his lumbosacral spine was
noted.  On November 1989, he exhibited a full range of motion
with his back and his muscle strength was good.  X-ray
examination, dated August 1991, revealed a marked narrowing
at L5-S1 degenerative disc and joint disease.  He was
prescribed Robaxin and Propoxyphene.  On October 1991, the
appellant reported that the medication was ineffective for
his pain.  In August 1992, he stated that he was taking
Tylenol for his pain.  Examination of the appellant dated
August 1993 revealed no sensory or motor loss.  Flattening of
the curvature of the spine was observed.  X-ray examination,
dated October 1993, revealed degenerative joint and bone
disease of the lumbosacral spine manifested by a lumbosacral
strain.

VA examination, dated June 1996, revealed the appellant�s
complaints of his back �locking up� on him and not allowing
him to straighten out.  The pain in his back was described as
sharp and localized to his lower back.  Physical examination
was negative for postural abnormalities or fixed deformities.
The musculature of the back was within normal limits.  Range
of motion included forward flexion of 112 backward extension
of 30 degrees, left lateral extension of 26 degrees, right
lateral extension of 25 degrees, left rotation 39 degrees and
right rotation of 55 degrees.  There was no objective
evidence of pain upon motion.  No neurological deficits were
noted.  X-ray examination revealed osteophytes affecting all
of the lumbar bodies, particularly the lower ones as well as
S1.  There was thinning of the discs at all levels with more
thinning at L4-5 and L5-S1.  At the lower levels, the
osteophytes protruded posteriorly without obligate root
pressure, though it could not be ruled out.  There was slight
sclerosis of the articular facets at the lower lumbosacral
level on both sides.  The alignment of the vertebral segment
appeared normal.  Diagnosis was of chronic low back syndrome,
consisting of intermittent low back pain and an intermittent
inability to straighten, both of which first occurred during
military service.  The examining physician was unclear as to
the etiology of the chronic low-back syndrome.  Diagnosis
also included degenerative bone and joint disease.

The Board concludes from the above mentioned evidence that
the appellant�s current back disability, chronic low-back
syndrome, was first manifested in service.  First, there is
no evidence of record that the appellant�s chronic low-back
syndrome pre-dated his active service.  There being no clear
and unmistakable evidence to the contrary, he is presumed to
have entered active service in sound condition.  38 U.S.C.A.
� 1111 (West 1991).  Second, the appellant has presented
credible testimony that he sustained a back injury while in
service.  In this respect, the Board notes that even before
he filed the current claim for VA compensation, he referred
to the in-service injury during the course of providing
medical history.  Finally, there is medical evidence which
shows that he suffers from chronic low-back syndrome which is
linked to active service.  This being the case, the Board is
satisfied that the appellant, by a preponderance of the
evidence, has established that the chronic low back syndrome
was incurred in service.

	(CONTINUED ON NEXT PAGE)

ORDER

Service connection for a chronic low back syndrome is
granted.

	NANCY I. PHILLIPS
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), 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, 102 Stat. 4105, 4122 (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.

- 2 -


series: legacy

judge_norm: RENEE M PELLETIER

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text:
Citation Nr: 9737000
Decision Date: 07/31/97	Archive Date: 11/06/97

DOCKET NO. 96-17 734                DATE JUL 31 1997

On appeal from the Department of Veterans Affairs Medical and
Regional Office Center in Sioux Falls, South Dakota

THE ISSUE

Entitlement to an evaluation in excess of 10 percent for bilateral
pes planus with Morton's neuroma and prominent metatarsal of the
left foot.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Deborah J. Drucker, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1948 to June 1952.
This matter comes to the Board of Veterans' Appeals on appeal from
a February 1996 rating decision of the Department of Veterans
Affairs (VA) Medical and Regional Office Center (M & ROC) in Sioux
Falls, South Dakota.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the manifestations of his bilateral pes
planus are more severe than represented by the currently assigned
evaluation and warrant a higher rating.  He asserts that his feet
are stiff and sore, that he experiences swelling and calf cramps
and that the skin on his feet is dried, cracked and painful as a
consequence of the pes planus.  Reference is made to the evidence
of record and a favorable determination is requested.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 7104
(West 1991 & Supp. 1996), 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 claim
for an increased evaluation for bilateral pes planus with Morton's
neuroma and prominent metatarsal of the left foot.

FINDINGS OF FACT

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

2.   Bilateral pes planus is principally manifested by subjective
complaints of pain and discomfort, fallen arches and use of
orthotics, without pain on manipulation, deformity or
characteristic callosities; and is productive of not more than mild
impairment.

CONCLUSION OF LAW

The criteria for an evaluation greater than 10 percent for
bilateral pes planus with Morton's neuroma and prominent metatarsal
of the left foot is not met. 38 U.S.C.A. 1155, 5107 (West 1991); 38
C.F.R. 4.71a, Diagnostic Codes 5276-5279 (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's claim for an increased evaluation for bilateral pes
planus with Morton's neuroma and prominent metatarsal of the left
foot is plausible and capable of substantiation and, thus, well
grounded within the meaning of 38 U.S.C.A. 5107(a); see Proscelle
v. Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an
increased evaluation of a service-connected disability generally is
a well-grounded claim).  When a veteran submits a well-sounded
claim, VA must assist him in developing facts pertinent to that
claim. 38 U.S.C.A. 5107(a).  The Board is satisfied that all
relevant evidence has been obtained regarding the veteran's claim,
and that no further assistance to the veteran with respect to this
claim is required to comply with 38 U.S.C.A. 5107(a).

In accordance with 38 C.F.R. 4.1, 4.2, 4.41 (1996) and Schafrath v.
Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the
veteran's service medical records and all other evidence of record
pertaining to the history of his service-connected bilateral pes
planus, and has found nothing in the historical record that would
lead to a conclusion that the current evidence of record is
inadequate for rating purposes.  In addition, it is the judgment of
the Board that this case presents no evidentiary considerations
that would warrant an exposition of the remote clinical histories
and findings pertaining to the disability at issue.

Disability ratings are determined by applying the criteria set
forth in the VA Schedule for Rating Disabilities, found in 38
C.F.R. Part 4 (1996).  The Board attempts to determine the extent
to which the veteran's service-connected disability adversely
affects his ability to function under the ordinary conditions of
daily life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity in
civil occupations. 38 U.S.C.A. 1155; 38 C.F.R. 4.1, 4.10. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating; otherwise, the lower rating will be assigned. 38 C.F.R. 4.7
(1996).

When entitlement to compensation has already been established and
an increase in the disability rating is at issue, the present level
of disability is of primary concern.  Although a rating specialist
is directed to review the recorded history of a disability in order
to make a more accurate evaluation, see 38 C.F.R. 4.2, the
regulations do not give past medical reports precedence over
current findings.  Francisco v. Brown, 7 Vet.App. 55 (1994).

Factual Background

In September 1994, service connection was awarded for bilateral pes
planus with Morton's neuroma and prominent metatarsal of the left
foot and a 10 percent disability evaluation assigned.  The rating
decision was based, in part, on service medical records that
reflected multiple entries for complaints and treatment of sore
arches and pes planus.

The M & ROC also reviewed findings of a December 1993 VA
examination that included the veteran's complaints of tired feet
with occasional leg and back aches after standing.  The veteran
reported left foot pain that was worse than right foot pain and
said he had cramps about twice a week that caused him to awaken at
night.  Examination revealed diminished pedal pulses.  Hair was
present on the feet and the feet were warm to the touch.  There was
normal range of motion, six to eight degree fore foot varus and
four degree rear foot varus.  There was tenderness and a prominent
fourth metatarsal on the left foot.  The assessment was bilateral
Morton's neuroma and prominent left foot fourth metatarsal that
were a result of functional stress from bilateral pes planus.

VA outpatient treatment reports dated from February 1995 to January
1996 indicate the veteran was seen in the podiatry clinic at the VA
medical center in Cheyenne, Wyoming, in February for complaints of
foot pain.  Orthotics were recommended.  In November 1995, he was
seen at the VA medical center in Sioux Falls, South Dakota, with
complaints of cramps and foot and requested the supports
recommended by the VA medical center in Cheyenne.  Examination
showed skin color and temperature were within normal limits,
bilaterally with no mottling of skin, gangrene or ulceration.  It
was noted that the veteran had two pairs of orthotics: one pair
that was totally unacceptable in fabrication, fit and function that
he did not and should not use and another pair that appeared usable
but had a rigid base.  The assessment included peripheral vascular
disease and the veteran was referred for a vascular surgery
consultation.  He was also referred to prosthetics for custom
molded new orthotics.  A vascular examination the following month
found no evidence of vascular disease.

When examined by VA in December 1995, the veteran complained of
bilateral foot pain since service, with chronic pain over his
insteps and intermittent tingling in the last three digits of his
left foot in recent several years.  The veteran said he wore arch
supports but experienced frequent foot cramps at night that
involved cramps in the left foot, instep and calf and occasionally
in the right foot and leg that were often severe and caused him to
awaken at night.  The veteran said he drove a delivery truck for a
living and experienced back soreness and stiffness at the end of
the day.

Findings upon examination showed the veteran's station and gait
were normal with fallen arches over the instep of each foot.
Active and passive range of motion of both ankles and metatarsal
phalangeal joints was normal.  There was tenderness in the
supportive ligaments and tendons around the left fourth metatarsal
bone, particularly near the bottom of the veteran's foot near the
distal end of this bone.  No muscular cramps developed and no
severe pain was experienced during active range of motion
examination.  The veteran reported stiffness and soreness with
passive movement and pressure across the metatarsal heads of each
foot.  No overlying skin or vascular changes or joint deformities
were identified within either foot.  The assessment included
bilateral pes planus, symptomatic with stiffness and chronic pain.

According to a January 1996 VA outpatient record, the veteran was
seen for multiple problems, but no new foot problems.  He said his
new left foot orthotic did not have a fourth metatarsal depression
as requested and the orthotics did not fit in all his shoes.  New
orthotics were prescribed to accommodate the veteran's bilateral
foot disability.  The veteran's service-connected foot condition
was noted as improved at the end of the examination.

Analysis

A noncompensable disability evaluation is warranted for mild
bilateral acquired pes planus with symptoms that are relieved by
built-up shoes or arch supports.  A 10 percent evaluation is
warranted for moderate bilateral acquired pes planus where the
weight-bearing lines are over or medial to the great toes and there
is inward bowing of the tendo achillis and pain on manipulation and
use of the feet. 38 C.F.R. 4.71a, Diagnostic Code 5276 (1996).

Bilateral or unilateral anterior metatarsalgia (Morton's disease)
is rated 10 percent. 38 C.F.R. 4.71a, Diagnostic Code 5279 (1996).

A review of the evidence does not show the veteran's bilateral pes
planus to be result in more than moderate impairment.  While he
complains subjectively of pain associated with his pes planus,
objectively, only stiffness and soreness was shown on the December
1995 VA examination.  Further, changes in the veteran's feet
consistent with an increased rating, such as callosities, have not
been shown on examination.  While the 1995 VA examiner reported
there was tenderness in the area around the left fourth metatarsal
bone, there was no evidence of muscular cramps and no severe pain
during examination.  The objective evidence does not include
manifestations such as bowing of the tendo achillis or pain on
manipulation, that would support a compensable rating.  There is no
basis for a higher evaluation for bilateral pes planus. 38 U.S.C.A.
1155; 38 C.F.R. 4.71a, Diagnostic Code 5276.  The veteran's
bilateral Morton's neuroma was mentioned subjectively, but was not
objectively demonstrated. 38 C.F.R. 4.71a, Diagnostic Code 5279.

Moreover, the Board finds that the evidence does not present such
an exceptional or usual disability picture as to render impractical
the application of the regular schedular standards." 38 C.F.R.
3.321(b)(1)(1996). There has been no showing that service-connected
disability has caused marked interference with employment or
necessitated frequent periods of hospitalization.  In the absence
of such factors, the Board is not required to discuss the possible
application of 38 C.F.R. 3.321(b)(1). See Bagwell v. Brown, 9
Vet.App. 337 (1996); Floyd v. Brown, 9 Vet.App. 88 (1996); Shipwash
v. Brown, 8 Vet.App. 218, 227 (1995).

ORDER

An increased evaluation for bilateral pes planus with Morton's
neuroma and prominent metatarsal of the left foot is denied.

RENEE M. PELLETIER
Member, Board of Veterans' Appeals

38 U.S.C.A. 7102 (West Supp. 1996) 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 &
Supp. 1996), 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, 102 Stat. 4105, 4122 (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: Entitlement to an evaluation in excess of 30 percent for Crohn’s disease is denied.

text:
Citation NR: 9738000
Decision Date: 11/13/97		Archive Date: 11/19/97
DOCKET NO.  96-46 983	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an evaluation in excess of 30 percent for
Crohn�s disease.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Deborah J. Drucker, Associate Counsel

INTRODUCTION

The veteran had active service from August 1992 to September
1995.  This matter comes to the Board of Veterans� Appeals
(Board) on appeal from an April 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the manifestations of his service-
connected Crohn�s disease are more severe than represented by
the currently assigned 30 percent disability evaluation.
Reference is made to the evidence of record and a favorable
determination is requested.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files.  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 an evaluation in
excess of 30 percent for Crohn�s disease.

FINDINGS OF FACT

1.  Sufficient relevant evidence necessary for an equitable
disposition of the veteran�s claim has been obtained.

2.  Crohn�s disease is manifested by abdominal tenderness, 5
to 6 bowel movements per day, occasional urgency and
incontinence and a need for prescribed medication.
3.  The veteran�s weight is stable and he is not shown to be
suffering from malnutrition or more than moderately severe
disability.

4.  The veteran�s service-connected Crohn�s disease has not
been shown to cause marked interference with employment or
necessitated frequent periods of hospitalization rendering
impractical the application of regular schedular standards.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent
for service-connected Crohn�s disease have not been met.
38 U.S.C.A. �� 1155, 5107(a) (West 1991); 38 C.F.R.
�� 3.321(b)(1), 4.2, 4.7, 4.10, 4.20, 4.114, Diagnostic Code
7323 (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran�s claim for an increased evaluation for Crohn�s
disease is plausible and capable of substantiation and, thus,
well grounded within the meaning of 38 U.S.C.A. � 5107(a);
see Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (a claim of
entitlement to an increased evaluation of a service-connected
disability generally is a well-grounded claim).  When a
veteran submits a well-grounded claim, VA must assist him in
developing facts pertinent to that claim.  38 U.S.C.A.
� 5107(a).  The Board is satisfied that all relevant evidence
has been obtained regarding the veteran�s claim, and that no
further assistance to the veteran with respect to this claim
is required to comply with 38 U.S.C.A. � 5107(a).

In accordance with 38 C.F.R. �� 4.1, 4.2, 4.41 (1996) and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed the veteran�s service medical records and all other
evidence of record pertaining to the history of his service-
connected Crohn�s disease, and has found nothing in the
historical record that would lead to a conclusion that the
current evidence of record is inadequate for rating purposes.
In addition, it is the judgment of the Board that this case
presents no evidentiary considerations that would warrant an
exposition of the remote clinical histories and findings
pertaining to the disability at issue.

Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R. Part 4 (1996).  The Board attempts to determine
the extent to which the veteran�s service-connected
disability adversely affects his ability to function under
the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon the average
impairment of earning capacity in civil occupations.
38 U.S.C.A. � 1155; 38 C.F.R. �� 4.1, 4.10.  Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating; otherwise, the lower rating will be assigned.
38 C.F.R. � 4.7 (1996).

When entitlement to compensation has already been established
and an increase in the disability rating is at issue, the
present level of disability is of primary concern.  Although
a rating specialist is directed to review the recorded
history of a disability in order to make a more accurate
evaluation, see 38 C.F.R. � 4.2, the regulations do not give
past medical reports precedence over current findings.
Francisco v. Brown, 7 Vet.App. 55 (1994).

Facts

When examined for enlistment into service in October 1991,
the veteran was 5 feet, 10 inches tall and weighed 150
pounds.  Service medical records reflect that in February
1995, he underwent a sphincterotomy.  In April 1995, the
veteran was referred for evaluation of diarrhea after
experiencing abdominal pain, explosive stools, intermittent
fevers and a 22 pound weight loss, according to the findings
of a May 1995 Medical Board report.  The veteran was
diagnosed with ileocolonic Crohn�s disease and mild anemia
secondary to Crohn�s disease with possible iron deficiency.
The report indicates the veteran was treated with Asacol,
with minimal success, and then with Prednisone therapy, with
minimal improvement of symptoms.  The Medical Board found the
veteran was unfit for duty due to the Crohn�s disease.  In
June 1995, the Medical Board noted that the veteran may
suffer from peri-anal Crohn�s disease.

According to a September 1995 clinical record, the veteran�s
Crohn�s disease was treated with medications that included
Asacol, Prednisone and 6-Mercaptopurine (6-MP).  The record
described the veteran�s disease as stable with definite
improvement from the 6-MP.  The examiner commented that the
veteran might continue to experience symptoms related to
residual peri-anal disease that would likely respond to 6-MP
therapy with a tapering dosage of Prednisone.  The veteran
was transferred to the temporary disability retired list in
September 1995.

When examined by VA in February 1996, the veteran said he
worked full time as a phlebotomist since October 1995 and had
a good attendance record.  He told the examiner he took 6-MP
daily that was initially prescribed in July 1995.  The
veteran said he did well with the medication, but when he ran
out of medication two weeks earlier he developed abdominal
cramps and 3 loose stools daily without bleeding or melena.
When the medication was renewed, there were no more abdominal
cramps and bowel movements were less frequent.  The veteran
described himself as 6 feet tall and weighing 177 pounds,
with stable weight.  Objective findings indicated the veteran
had a good build and state of nutrition, erect posture and
normal gait.  Acne scars were observed and the veteran said a
five month course of Prednisone therapy worsened the acne.
The veteran�s lymphatic system was negative.  He had anemia,
his abdomen was soft with no tenderness to palpation and no
organomegaly, active bowel sounds and no hernia or
hemorrhoid.  Diagnoses included Crohn�s disease with
microcytic hypochromic anemia, on maintenance 6-MP.

An April 1996 rating decision granted the veteran�s claim for
service connection for Crohn�s disease.  The RO assigned a 10
percent disability evaluation, effective from September 1995.

VA outpatient treatment records dated from February 1996 to
September 1996 indicate that in May 1996 the veteran reported
having four loose bowel movements daily and a history of
failed Prednisone treatment.  The examiner commented that the
veteran had poorly controlled Crohn�s disease.  According to
a June 1996 consultation  report, in February and March the
veteran had increased diarrheal symptoms, pain and a fair
appetite.  The plan was to increase the Prednisone dosage and
have the veteran return in several weeks.

At his August 1996 personal hearing at the RO, the veteran
testified that he experienced 5 to 6 stools daily, even with
medication, and had taken 6-MP daily but recently had been
placed back on Prednisone.  The veteran said he was told he
was anemic and his cholesterol count was low, probably
because the nutrition washed out of his body.  Further, the
veteran stated that his abdomen was always tender in the
lower region and was tender at the time of his VA
examination, although he did not report it to the examiner.
According to the veteran, his current weight was 170 and it
had not varied more than seven pounds since leaving service.
The veteran described experiencing fatigue and explosive
diarrhea that occasionally soiled his clothing and said he
wore women�s feminine pads to absorb leakage.  The veteran
said he missed about 6 or 7 days of work since the end of
October when he started his job as a phlebotomist, that was
more than the allotted leave for a first year employee.  He
said he had little difficulty showing up at work on time, but
he often needed to leave work early.  However, the veteran
testified that his supervisor had been understanding of the
intestinal problems caused by his disability.

A colonoscopy report dated in September 1996 indicates that
the veteran had moderate and severe ulcerations and
inflammation in the transverse and sigmoid colon.  The
recommendation was to increase the Prednisone dosage to 60
mg. daily.  When seen a week later, the veteran reported
having 5 to 6 bowel movements daily with abdominal pain and
gaseousness.  His eating habits were described as enormous
and his energy level improved.  The impression was that the
veteran had shown improvement and a lighter dose of
Prednisone was recommended.  The examiner commented that it
would be preferable to have the veteran taper off Prednisone
during 1996 and he was scheduled to return to the clinic in
two months.

In October 1996, the RO implemented the hearing officer�s
recommendation for an increased evaluation.  A 30 percent
disability evaluation was assigned, effective from September
1995.

Analysis

The veteran�s Crohn�s disease is rated as analogous to
ulcerative colitis.  38 C.F.R. � 4.20.  According to the
applicable criteria, a 30 percent evaluation is warranted for
moderately severe ulcerative colitis with frequent
exacerbations.  38 C.F.R. � 4.114, Diagnostic Code 7323.  A
60 percent evaluation requires severe ulcerative colitis with
numerous attacks each year, malnutrition and only fair state
of health during remissions.  Id.  A 100 percent evaluation
is assigned when ulcerative colitis results in pronounced
disability resulting in marked malnutrition, anemia and
general debility, or with serious complications as liver
abscesses.  Id.

Upon review of the recent medical evidence, the Board is of
the opinion that a higher evaluation is not warranted for the
veteran�s Crohn�s disease at this time.  As noted above, in
order to justify a 60 percent evaluation, there must be
evidence of severe ulcerative colitis with numerous attacks
each year, malnutrition and only a fair state of health
during remission.  These requirements have not been met in
this case.  The veteran�s weight has remained relatively
stable, between 170 to 177 pounds.  Moreover, the recent VA
examiner described the veteran as having a �good� build and
state of nutrition.  Further, the objective evidence shows
that he is not malnourished and, at his personal hearing,
while he asserted that he suffered anemia and malnourishment,
there is no medical evidence to show more than mild anemia or
support his contention of malnutrition.  Therefore, a greater
degree of disability evaluation is not warranted.

The RO, as reflected in the Statement of the Case issued to
the veteran in May 1996, and the Supplemental Statement of
the Case issued in October 1996, considered the veteran�s
claim under the provisions  38 C.F.R. � 3.321(b)(1)( 1996).
The Board notes that the veteran has not been hospitalized,
since leaving service in 1995, for treatment of his Crohn�s
disease.  Moreover, there has been no showing that Crohn�s
disease caused marked interference with employment.  Although
he testified that he often needed to leave work earlier or
use extra leave time, the veteran also said he had worked
full time in the same position since October 1995 and his
supervisor was understanding of his needs.  The Board affirms
the conclusion reached by the RO.  See Bagwell v. Brown, 9
Vet. App. 337 (1996); Floyd v. Brown, 9 Vet.App. 88, (1996);
Shipwash v. Brown, 8 Vet.App. 218, 227 (1995).

Accordingly, the Board finds by a preponderance of the
evidence that no more than a 30 percent rating is warranted
for the veteran�s Crohn�s disease.  38 U.S.C.A. �� 1155,
5107; 38 C.F.R. �� 3.321(b)(1), 4.20, 4.114, Diagnostic Code
7399-7323.  The evidence is not so evenly balanced as to
raise doubt with respect as to any material issue.
38 U.S.C.A. � 5107(b).

In reaching its decision, the Board considered the complete
history of the disability at issue and the current clinical
manifestations and the effect the disability may have on the
earning capacity of the veteran.  38 C.F.R. �� 4.1, 4.2
(1996).  As such, the criteria for an evaluation greater than
30 percent are not met or approximated.  38 C.F.R. � 4.7.

ORDER

Entitlement to an evaluation in excess of 30 percent for
Crohn�s disease is denied.

	WAYNE M. BRAEUER
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), 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, 102 Stat. 4105, 4122 (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.

- 2 -


judge_norm: C P RUSSELL

text: The claim for service connection for the cause of the veteran’s death is denied.

text:
Citation NR: 9739000
Decision Date: 11/21/97		Archive Date: 12/02/97
DOCKET NO.  93-27 056	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for the cause of the
veteran�s death.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. C. Graham, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1951 to
October 1971.

The instant appeal arose from an October 1992 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO), St. Petersburg, Florida, which denied a claim for
service connection for the cause of the veteran�s death.

This case was remanded by the Board of Veterans� Appeals
(Board) in August 1995 for further development.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant and her representative contend, in substance,
that physical inactivity due to service-connected
osteoarthritis of the lumbosacral spine and residuals of a
left ankle fracture led to obesity which in turn caused the
veteran�s diabetes mellitus and heart disease which caused
his death.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file(s).  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 allowance of service connection for the
cause of the veteran's death.

FINDINGS OF FACT

1.  The immediate cause of death in August 1992 was listed on
the certificate of death as sudden cardiac death, due to or
as a consequence of underlying end-stage dilated
cardiomyopathy; emphysema was listed as another significant
condition contributing to death but not resulting in the
underlying cause.  No autopsy was performed.

2.  At the time of death, service connection was in effect
for residuals of a gunshot wound of the abdomen with compound
comminuted fracture of the superior ramas, right pubis, rated
as 50 percent disabling; post-operative residuals of a
gunshot wound to the right buttock, rated as 20 percent
disabling; residuals of a gunshot wound of the urinary
bladder with bladder calculi, rated as noncompensably
disabling; residuals of a fracture of the left ankle
malleoli, rated as noncompensably disabling; and
osteoarthritis of the lumbosacral spine, rated as
noncompensably disabling.

3.  Cardiomyopathy and emphysema were not present in service
or proximate thereto.

4.  Cardiomyopathy and emphysema were not caused by and were
not related to the service-connected disabilities.

5.  The veteran's service-connected disabilities were not a
material factor in the development or progress of the
cardiomyopathy or emphysema which resulted in his death.

CONCLUSION OF LAW

1.  Cardiomyopathy and emphysema were not incurred in or
aggravated by the veteran's active service, and
cardiomyopathy may not be presumed to have been so incurred.
38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1131 (West 1991);
38 C.F.R. �� 3.303, 3.307, 3.309 (1996).

2.  Cardiomyopathy and emphysema were not proximately due to
or the result of service-connected disease or disability.
38 C.F.R. � 3.310(a) (1996).

3.  A service-connected disability did not cause or
contribute substantially or materially to cause the veteran's
death.  38 U.S.C.A. � 1310 (West 1991); 38 C.F.R. � 3.312
(1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant is seeking service connection for the cause of
the veteran's death.  38 U.S.C.A. � 1310 (West 1991);
38 C.F.R. � 3.312 (1996).

Dependency and indemnity compensation may be awarded to a
veteran�s surviving spouse, children, or parents for death
resulting from a service-connected or compensable disability.
38 U.S.C.A. � 1310 (West 1991 & Supp. 1995); 38 C.F.R.
� 3.312 (1996).  In order to establish service connection for
the cause of a veteran�s death, the evidence must show that a
disability incurred in or aggravated by service was either
the principal, or primary, cause of death, or that it was a
contributory cause of death.  38 C.F.R. � 3.312(a) (1996).
For a service-connected disability to be the principal cause
of death, it must singly or with some other condition be the
immediate or underlying cause, or be etiologically related.
38 C.F.R. � 3.312(b) (1996).

A contributory cause of death is inherently one not related
to the principal cause.  38 C.F.R. � 3.312(c) (1996).  For a
service-connected disability to constitute a contributory
cause, it must be shown that it �contributed substantially or
materially; that it combined to cause death; that it aided or
lent assistance to the production of death.� Id.  It is not
sufficient to show that it casually shared in producing
death, but rather it must be shown that there was a causal
connection.  Id.

A well-grounded claim for service connection for the cause of
a veteran�s death, therefore, is one which justifies a belief
by a fair and impartial individual that it is plausible that
the veteran�s death was related to a disability incurred in
or aggravated by service.  Where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is �plausible�
or �possible� is required.  Grottveit v. Brown, 5 Vet.App. 91
(1993).

The veteran�s March 1971 retirement examination noted a
chronic cough associated with heavy smoking �no comp., no
seq.� and occasional chest pain which was self-limiting
without significant incapacitation.  There was a blood
pressure reading of 130/80.  Results of a chest X-ray taken
that month were negative.  There was no report of
hypertension, ischemic heart disease, cardiomyopathy, or
emphysema in service.

The veteran's August 1992 certificate of death reported that
the immediate cause of death was sudden cardiac death due to
or as a consequence of end-stage dilated cardiomyopathy.
Emphysema was noted as another significant condition
contributing to death but not resulting in the underlying
cause of death.

The appellant filed her claim for benefits in September 1992
and attached a written statement dated the same month from P.
F. Mathias, M.D., who had treated the veteran at the Orlando,
Florida, Naval Hospital for three years prior to his death.
Dr. Mathias stated that the veteran had diabetes and ischemic
heart disease and was morbidly obese.  He opined:

I believe both [the veteran�s] diabetes
and his ischemic heart disease were
related to the morbid obesity.  The
primary contributing factor to his morbid
obesity was the fact that he had severe
low back pain and multiple orthopedic
problems that prevented him from taking
any exercise.

[The veteran] was found lying on the
floor of his garage at 1:00 in the
morning.  The exact nature of death is
not clear.  Given the underlying cardiac
disease, I feel he probably had an
arrhythmic sudden death.  It is possible
that he had fallen on the floor and was
unable to get up due to his back
problems, and, thereafter, suffered a
fatal heart attack.

The Board finds that Dr. Mathias� statement makes the
appellant�s claim well-grounded as it is a medical opinion
which tends to show that the veteran�s service-connected low
back disability was a contributory cause of the veteran�s
death as it led to the development of the morbid obesity
which was related to the likely cause of the veteran�s death,
heart disease.

Following the Board's August 1995 remand, additional
treatment records from 1989 to July 1992 were associated with
the claims folder which showed numerous disorders, including
chronic obstructive pulmonary disease, insulin dependent
diabetes mellitus, arteriosclerosis, and hypertensive
cardiovascular disease.  It was noted in 1989 that the
veteran had a long history of hypertension.  A narrative
summary of hospitalization in 1989 showed a diagnosis of
obesity contributing to congestive heart failure, chronic
obstructive pulmonary disease, and nonsustained ventricular
arrhythmia.

A November 1996 VA medical opinion by the Chief of the
Cardiology Section of the Bay Pines, Florida, VA Medical
Center, addressed the questions (1) whether the veteran�s
service-connected low back and left ankle disorders were
clinically significant in the causation or chronic worsening
of the veteran�s nonservice-connected morbid obesity; and, if
so, (2) whether such morbid obesity caused or contributed
substantially or materially to cause the end-stage
cardiomyopathy shown on the death certificate as the cause of
the veteran�s death.

The Chief of Cardiology reviewed the medical record and
concluded as to the first question that �[I]n this patient,
the inactivity due to orthopedic disability had no
substantial contribution to the development of morbid
obesity.�  Thus, the second question became moot for purposes
of service connection for the cause of the veteran�s death.

However, the Chief of Cardiology noted that �in this case I
do not feel morbid obesity has any direct causal relationship
with any idiopathic dilated cardiomyopathy but may have some
contribution to the worsening of heart failure and chronic
pulmonary disease.�  The report also noted that �obesity had
no causal relationship or any substantial bearing on the
heart disease which eventually led to the demise of this
patient.�

In support of those conclusions, the Chief of Cardiology
noted that the veteran could have exercised his upper
extremities, as he did not appear to have degenerative joint
disease or orthopedic disability affecting that area.
Additionally, it was noted that the veteran could have gone
on a stricter diet to lose weight.  Moreover, the report
noted that inactivity is not the only cause of obesity, a
multifactorial disease.  Other factors which were noted to be
potential causes of obesity included genetic predisposition,
psychoneurotic disorders, and hormonal or metabolic
abnormalities.

The Chief of Cardiology also noted that the etiology of the
veteran�s end-stage dilated cardiomyopathy was not known.  A
viral infection, coronary artery disease, hypertensive
cardiovascular disease, or substance abuse were listed as
possible causes of cardiomyopathy.  In addition, cor-
pulmonale was apparently a significant component of the
veteran�s end-stage dilated cardiomyopathy.  The Board notes
that none of these potential causes were service-connected
disabilities.

The Board finds the most compelling evidence in this case to
be the November 1996 medical opinion of the Chief of
Cardiology as that physician�s opinions were based on a
review of the entire record and the conclusions reached were
thoroughly explained.  As the Chief of Cardiology found,
contrary to Dr. Mathias� opinion, that inactivity due to
orthopedic disability had no substantial contribution to the
development of morbid obesity, the Board deems the
preponderance of the evidence in this case is against the
appellant�s claim.

In addition, the appellant has not contended, nor does the
evidence support, that any of the veteran's other service-
connected disorders resulted in his death.  The Board has
noted that the death certificate did not specify any
connection between any of the veteran's service-connected
disorders and his death.

After weighing the evidence, the Board has concluded that the
greater weight of the evidence indicates that none of the
veteran's service-connected disorders was either a primary or
a contributory cause of death.  Service connection for the
cause of the veteran's death is therefore denied.

ORDER

The claim for service connection for the cause of the
veteran�s death is denied.

	C. P. RUSSELL
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), a decision of the Board 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,
102 Stat. 4105, 4122 (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.
- 2 -


judge_norm: HILARY L GOODMAN

disposition: dismissed

benefit: healthcare

text:
Citation NR: 9740000
Decision Date: 12/01/97		Archive Date: 12/12/97
DOCKET NO.  96-18 172A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to reimbursement or payment of the cost of
private medical expenses.

WITNESS AT HEARING ON APPEAL

Appellant

INTRODUCTION

The veteran, who had active service from April to November
1944, died in April 1995.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from a March 1996 decision by the
Department of Veterans Affairs (VA) Medical Center, St.
Louis, denying entitlement to reimbursement or payment of the
expenses of the veteran's treatment at the Jefferson Memorial
Hospital, Crystal City, Missouri, in April 1995.

The Board, following review, remanded this case in March
1997.  At that time it was noted that the appellant, the
veteran's daughter, was apparently raising the issue of
dependency and indemnity compensation for the cause of the
veteran's death pursuant to the provisions of 38 U.S.C.A.
� 1151 (West 1991).  As the current record does not show that
any action has been taken with respect to this claim, it is
again referred to the regional office (RO) for appropriate
action.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that she was told by VA employees
that, in an emergency situation, she should take the veteran
to the nearest medical facility and that the VA would pay for
the treatment received.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the 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 appeal on the issue of
reimbursement or payment of the cost of private medical
expenses be dismissed.

FINDINGS OF FACT

1.  Bills for hospital care received by the veteran on April
[redacted] and April [redacted] 1995, at the Jefferson Memorial Hospital, Crystal City, Missouri, were received from the veteran's
daughter in August 1996.

2.  The veteran died on April [redacted] 1995; neither the claim nor
the appeal was initiated by the health care provider or an
individual acting as the executor or executrix of the
veteran's estate.

CONCLUSION OF LAW

The current appellant, in her capacity as daughter of the
veteran, is not a proper claimant for payment; there is no
matter before the Board for review with regard to her.
38 U.S.C.A. �� 7104, 7105, 7108 (West 1991 & Supp. 1997);
38 C.F.R. � 17.123 (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Before the Board may exercise jurisdiction over an issue,
that issue must involve a benefit administered by the VA and
must have been the subject of a claim by a party eligible to
receive the benefit in question.  38 U.S.C.A. �� 7104, 7105.
While reimbursement or payment of the cost of private medical
services does involve consideration of a benefit under the
laws administered by the VA, the potential claimants include,
where the veteran is deceased, the health care provider, the
representative of the veteran's estate or a person who paid
for the services.  38 C.F.R. � 17.123.

The record shows that a claim for the amount remaining after
a payment was made by Medicare was filed against the
veteran's estate on behalf of the health care provider.  As
no payment was made by the appellant, the case was remanded
by the Board, in part, to determine if she had been appointed
as the executrix of the veteran's estate.  The record shows
that no response was received to the RO�s April 1997 request
for this information.  As the current record shows that the
appellant has not paid any of the medical expenses at issue
and no information has been submitted indicating her
appointment as executrix of the veteran's estate, the appeal
by her is not properly before the Board and it must
accordingly be dismissed.

ORDER

The appeal for entitlement to reimbursement or payment of the
cost of private medical expenses is dismissed.

	HILARY L. GOODMAN
	Acting Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), 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, 102 Stat. 4105, 4122 (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.

- 5 -


judge_norm: JOHN E ORMOND, JR

disposition: granted

text:
Citation NR: 9743000
Decision Date: 12/31/97		Archive Date: 01/02/98
DOCKET NO.  94-13 690	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	Oregon Department of Veterans'
Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

David T. Cherry, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1967 to October
1967 and from February 1968 to November 1969.

In March 1996, the veteran returned his copy of the March
1996 Board of Veterans� Appeals (Board) decision with
comments about that decision.  He may be trying to reopen the
claim of entitlement to service connection for post-traumatic
stress disorder.  This issue is not ripe for appellate
review.  It is referred to the RO for appropriate action.

In September 1997, the veteran contacted a veterans� claims
representative and stated that he was unable to make his
hearing later that month.  The RO wrote to the veteran and
informed him that he had not requested a hearing and, thus,
was not scheduled for one.  The RO informed the veteran that,
if he wanted a hearing, he should contact the RO about this
matter.   The veteran has not subsequently contacted the RO
and it is determined that he does not want a hearing.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his bilateral hearing loss is
related to noise exposure during active service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), 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 evidence supports the grant of service connection for
bilateral hearing loss.

FINDINGS OF FACT

1.  It has not been shown that the veteran�s bilateral
hearing loss preexisted his two periods of active service.

2.  The veteran�s bilateral hearing loss is related to noise
exposure in service.

CONCLUSION OF LAW

A bilateral hearing loss was incurred in active service.  38
U.S.C.A. �� 1110, 1111, 5107 (West 1991); 38 C.F.R. �� 3.304,
3.385 (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, in view of the evidence of record, including the
veteran's evidentiary assertions that must be presumed to be
true for purposes of determining whether his claim is well
grounded, the Board finds that his claim is plausible and
thus well grounded within the meaning of 38 U.S.C.A. � 5107
(West 1991).  King v. Brown, 5 Vet. App. 19 (1993).  The
Board also finds that all reasonable attempts to obtain
relevant evidence have been made and that the duty to assist
the claimant is satisfied.  In particular, the Board notes
that, prior to the March 1996 Remand and also subsequent to
it, numerous attempts were made to obtain additional service
medical records and that these searches did not result in
obtaining the veteran�s separation examination for his second
period of service.  The Board recognizes that there is a
heightened obligation to explain findings and conclusions and
to consider carefully the benefit of the doubt rule in cases
in which records are presumed to have been or were destroyed
while the file was in the possession of the government.
O�Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

Service medical records reveal that on a November 1965
physical examination puretone thresholds (converted, for
consistency, from ASA to ISO standards), in decibels, were no
greater than 10 decibels in either ear.  On a September 1966
physical examination, the whisper voice tests for both ears
were 15/15.  On June 1967 entrance examination, puretone
thresholds (converted, for consistency, from ASA to ISO
standards), in decibels, in the right ear were 25 decibels at
3000 Hertz and 20 decibels or less for all other frequencies.
Puretone thresholds (converted, for consistency, from ASA to
ISO standards), in decibels, in the left ear were 25 decibels
at 250 and 500 Hertz , and 20 decibels or less at all other
frequencies.  However, a hearing loss was not diagnosed.  On
October 1967 separation examination, the whisper voice tests
for both ears were 15/15.  In March 1968, it was noted that
the veteran was physically qualified for active duty; a
hearing loss was not diagnosed.

Service personnel records confirm that the veteran was
stationed on the USS Ticonderoga, an aircraft carrier, during
his second period of active service.

From October 1970 to July 1971, the veteran�s claim for
service connection for bilateral hearing loss was denied four
times on the basis that he repeatedly failed to report for a
VA examination.

A  May 1993 VA audiometry revealed the following puretone
thresholds:

HERTZ

500
1000
2000
3000
4000

RIGHT
5
20
35
50
55

LEFT
5
20
40
60
60

Speech audiometry revealed speech recognition ability of  92
percent in the right ear and 86 percent in the left ear.  The
veteran reported that he first noticed a bilateral  hearing
loss around 1980.

On May 1993 VA ear, nose, and throat examination, the veteran
stated that he had noise exposure from being on the flight
line of an aircraft carrier during service and from working
in a factory after service.  The veteran stated that his
hearing gradually deteriorated during both of those
experiences.  The examiner noted the puretone audiometry
revealed a bilateral, mild to moderate, middle to high
frequency sensory hearing loss.  The impression of the
examiner was that the veteran had a bilateral neurosensory
hearing loss that was primarily due to noise exposure.

At a June 1994 hearing held at the RO before a hearing
officer, the veteran testified that he settled a workmen�s
compensation claim for hearing loss with his employer  in the
early 1980�s.  Hearing Transcript (T.) 7-9.  He stated that
the claim was settled for a lesser amount than the value of
his hearing loss because the company felt that his hearing
loss was primarily the result of noise exposure in active
service and, thus, was a preexisting condition.  Id.

In a July 1994 statement, the veteran�s former attorney
indicated that he no longer had any records pertaining his
workmen�s compensation claim.

In March 1996, the Board reopened the claim of entitlement to
service connection for bilateral hearing loss on the basis
that there was evidence which related his current bilateral
hearing loss to active service.  The Board then remanded the
claim in order to obtain additional medical evidence,
including the separation examination from the second period
of active service.

Subsequent attempts to obtain additional service medical
records, including the separation examination from his second
period of service, were unsuccessful.

Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of a pre-existing
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. � 1110.

Every veteran in wartime service should be taken to have been
in sound condition when examined, accepted, and enrolled for
service, except as to defects, infirmities, or disorders
noted at the time of the examination, acceptance, and
enrollment, or where clear and unmistakable evidence
demonstrates that the injury or disease existed before
acceptance and enrollment and was not aggravated by such
service.  38 U.S.C.A. � 1111; 38 C.F.R. � 3.304.

The threshold for normal hearing is from 0 to 20 decibels.
Higher threshold levels indicated some degree of hearing
loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
Establishing a current hearing loss disability is governed by
38 C.F.R. � 3.385, which provides that impaired hearing will
be considered to be a disability when the auditory threshold
in any of the frequencies (500, 1000, 2000, 3000, 4000 Hertz
(Hz)) is 40 decibels (dB) or greater; or when the auditory
thresholds for at least three of those frequencies are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent.

When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each issue shall be given to the claimant.
38 U.S.C.A. � 5107(b).

In this case, the veteran�s hearing in both ears has
satisfied the criteria for an impaired hearing disability
under 38 C.F.R. � 3.385 and is a current disability.
Although elevated thresholds in both ears were noted on the
June 1967 entrance examination, there was no medical opinion
which interpreted these puretone thresholds as a hearing
loss.  Thus, there is no clear and unmistakable evidence that
demonstrates that a bilateral hearing loss existed before
acceptance and enrollment.

Therefore, the issue is whether the veteran�s current
bilateral hearing loss is related to active service.  On the
one hand, the veteran had noise exposure after service and he
settled a claim for workmen�s compensation for hearing loss
from that noise exposure.  On May 1993 VA audiometry, he
indicated that he first noticed his hearing loss around 1980.
On the other hand, he filed a claim for hearing loss
immediately after service and has maintained that he noticed
that his hearing had deteriorated during active service.
While there is contradictory evidence about when the veteran,
a lay person, first noticed a decrease in his hearing, it is
undisputed that he was on an aircraft carrier during service.
According to him, he was exposed to acoustic trauma, while on
that ship, and that assertion is certainly not inconsistent
with such service.  A May 1993 VA examiner noted the
veteran�s history of noise exposure, both in service and
after service, and indicated that his bilateral hearing loss
was related to noise exposure.  This examiner did not
indicate that his hearing loss was related solely to post-
service noise exposure.  Furthermore, the veteran�s
separation examination from his second period of service,
which possibly would have documented whether the veteran had
a hearing loss on separation, is not of record.  The Board
finds that the evidence is at least in equipoise as to
whether the veteran�s bilateral hearing loss is related to
active service, especially in the absence of a medical
opinion which relates the bilateral hearing loss only to
post-service noise exposure.  Giving careful consideration to
the benefit of the doubt rule as required by O�Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991), the Board concludes
that service connection for bilateral hearing loss is
warranted.

ORDER

Service connection for bilateral hearing loss is granted.

	John E. Ormond, Jr.
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), 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, 102 Stat. 4105, 4122 (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.

- 2 -


judge_norm: GARY L GICK

disposition: remanded

text:
Citation NR: 9700001
Decision Date: 01/02/97		Archive Date: 06/25/97

DOCKET NO.  94-37 550	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon

THE ISSUES

1.  Entitlement to an increased evaluation for
psychoneurosis, currently evaluated as 10 percent disabling.

2.  Entitlement to service connection for seizure disorder.

REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America,
Inc.

WITNESS AT HEARING ON APPEAL

Appellant and appellant's spouse

ATTORNEY FOR THE BOARD

Daniel G. Krasnegor, Associate Counsel

REMAND

The veteran served on active duty from July 1942 to September
1944.

This matter comes before the Board of Veterans� Appeals
(Board) on appeal of an August 1992 rating determination by
the Department of Veterans Affairs (VA) Regional Office (RO).

In September 1993, the veteran submitted a VA Form 9, Appeal
to Board of Veterans� Appeals.  On the Appeal form, the
veteran checked boxes indicating his desire for a hearing
before the Board, both at the RO and in Washington.

In a November 1996 letter, the veteran was asked whether he
still wanted to have a hearing before the Board.  In the
November 1996 letter, the veteran was told that if he did not
respond, it would be assumed that the veteran wanted a
hearing at the RO before a Board member.  The veteran did not
respond to the letter.

In order to afford the veteran his full due process rights,
the case is REMANDED for the following action:

The RO should schedule the veteran for a
hearing at the RO before a member of the
Board in accordance with the docket
number in this case.  All letters
relating to the scheduling of the hearing
should be associated with the claims
file.

The case should then be returned to the Board for further
appellate consideration.  By this action the Board intimates
no opinion, legal or factual, as to the ultimate disposition
warranted.

	GARY L. GICK
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(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)
(1995).
- 2 -


judge_norm: SABRINA M TILLEY

condition: heart

text: After a review of the record, it is the decision of the Board that further development is necessary prior to its completion of appellate review. It is noted that the reports of terminal inpatient treatment have not been associated with the veteran’s claims folder. Furthermore, the appellant states that the veteran’s service-connected rheumatic heart disease was a contributing cause of the veteran’s death and has submitted some evidence that would indicate a possible etiological relationship. Consequently, a medical opinion should be obtained based on a review of the entire clinical record. In

text:
Citation NR: 9701001
Decision Date: 01/15/97		Archive Date: 02/03/97
DOCKET NO.  94-46 311	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for the cause of the
veteran�s death.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

INTRODUCTION

The veteran served on active duty from August 1942 to
November 1943.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from June 1994 rating decision of the Montgomery,
Alabama, Regional Office (RO).

REMAND

After a review of the record, it is the decision of the Board
that further development is necessary prior to its completion
of appellate review.  It is noted that the reports of
terminal inpatient treatment have not been associated with
the veteran�s claims folder.  Furthermore, the appellant
states that the veteran�s service-connected rheumatic heart
disease was a contributing cause of the veteran�s death and
has submitted some evidence that would indicate a possible
etiological relationship.  Consequently, a medical opinion
should be obtained based on a review of the entire clinical
record.  In view of the foregoing, the veteran�s case is
remanded to the RO for the following actions:

1.  The RO should take all appropriate
action to obtain and associate with the
claims folder all reports of terminal
inpatient treatment.

2.  The veteran�s claims file should be
reviewed by an appropriate specialist in
order to determine the medical likelihood
that the condition causing death was
caused by active service or was caused or
worsened by service-connected disability.
In addition, the examiner should reach a
opinion as to whether service connected
disability contributed materially or
substantially to death.  In this regard,
consideration should be give to whether
the veteran�s service-connected heart
disease rendered him materially less
capable to resist the effects of the
disease named as the immediate cause of
death.  The clinical bases of these
opinions should be set forth in detail.

3.  The RO then should review the
appellant�s claim for service connection
for the cause of the veteran�s death in
light of the additional development.  If
the benefits sought on appeal are not
granted, then the appellant and her
representative should be provided with a
supplemental statement of the case.

After the appellant and her representative have been given an
opportunity to respond, the case file should be returned to
the Board for further appellate review, if necessary.  The
purpose of this REMAND is to procure clarifying data and to
comply with governing adjudicative procedures.  The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition of this appeal.

	SABRINA M. TILLEY
	Acting Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(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)
(1995).
- 2 -


judge_norm: RAYMOND F FERNER

text:
Citation NR: 9801000
Decision Date: 01/14/98		Archive Date: 01/21/98
DOCKET NO.  94-26 505	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUES

1.  Entitlement to service connection for headaches, with
dizziness and blackouts.

2.  Entitlement to service connection for bilateral hearing
loss.

3.  Entitlement to service connection for rupture of the
right and left ear drums.

4.  Entitlement to service connection for bilateral tinnitus.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

C. Trueba-Sessing, Associate Counsel

INTRODUCTION

The veteran had active service from January 1952 to October
1954.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a March 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Cleveland, Ohio (RO), which denied the benefits sought on
appeal. The veteran appealed that decision to the BVA.  After
a review of the veteran�s claim, the Board remanded the case
to the RO for further development on December 1996.  At the
present, the case is again before the Board for appellate
review.

The Board notes that, subsequent to it December 1996 remand,
this claim has been transferred to the VA RO in North Little
Rock, Arkansas.

REMAND

The veteran is seeking service connection for several ear
disorders, including bilateral hearing loss, rupture of both
ear drums, bilateral tinnitus, as well as for headaches, with
dizziness and blackouts; all of which he attributes to a
severe combat injury in early April 1953.  However, service
connection was denied by the RO in a March 1993 rating
decision on the basis that the record contains no service
medical evidence pertaining to that injury.  The veteran was
previously denied service connection for defective hearing,
headaches with dizziness and blackouts as residuals of being
wounded, in a March 1965 rating decision, on the same basis.

The Board again observes that the record contains substantial
evidence of a combat related injury during service.  The
record shows that the veteran was wounded in action in early
April 1953, was admitted to the hospital ship U.S.S.
Consolation on the following day, and was still being treated
there two weeks later.  Furthermore, the record shows that
the veteran received the Purple Heart Award in connection
with that injury.  What the record continues to lack are
service medical records pertaining to the 1953
hospitalization, or any subsequent inservice treatment.
While the RO in Cleveland requested a search for additional
service medical records the file does not appear to contain a
response to that request.

The Board would also note that one of the purposes of the
earlier REMAND was to afford the veteran an examination.  The
examination was apparently not accomplished, possibly due to
the veteran�s relocation from Ohio to Arkansas, although the
file contains an AMIE Worksheet.  The Board continues to
request that a comprehensive VA examination be performed on
the veteran since it would assist in ascertaining the nature,
extent of severity and etiology of any currently diagnosed
disorders, and materially assist in the adjudication of his
appeal.

Thus, in order to give the veteran every consideration with
respect to the present appeal, it is the Board's opinion that
further development of the case is desirable. Accordingly,
this case is REMANDED for the following action:

1.  If a response to the July 1997
request for service medical records has
not been received, the RO should again
make an attempt to secure additional
service medical records of the veteran.
Specifically, the RO should place a
request for medical records for
treatment the veteran received aboard
the hospital ship U.S.S. Consolation
where he was admitted early in April
1953, and was an inpatient for at least
two weeks.

2.  The RO should also attempt to search
alternative record sources, including
Surgeon General Office records,
particularly records pertaining to the
1953 hospitalization where he was
treated for his combat related injuries.

3.  The RO should have the veteran
undergo ear, nose and throat (ENT),
audiological and neurological
examinations to determine the nature
and extent of severity of any hearing,
tinnitus or other ear disorder, and any
neurological disorder claimed related
to service.  All indicated studies are
to be conducted. The examiners should
be specifically requested to offer
opinions as to whether it is at least
as likely as not that the appellant's
hearing loss, ear drum disorders,
tinnitus, and/or headaches, with
dizziness and blackouts are related to
an inservice concussion caused by an
explosion, or to inservice acoustic
trauma in a combat environment.  If the
examiners are unable to provide any
part of any requested opinion, that
fact should be noted, together with a
detailed rationale explaining why the
opinion cannot be provided.  A complete
written rationale must be offered with
any opinion expressed.  Since it is
important "that each disability be
viewed in relation to its history[,]"
38 C.F.R. � 4.1 (1995), copies of all
pertinent medical records in the
veteran's claims file or, in the
alternative, the claims file, must be
made available to the examiners for
review.

When the development requested has been completed, the case
should again be reviewed by the RO on the basis of the
additional evidence.  If the benefit sought is not granted,
the veteran and his representative should be furnished a
supplemental statement of the case, and be afforded a
reasonable opportunity to respond before the record is
returned to the Board for further review.

The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time.  The veteran is free to submit any additional
evidence he desires to have considered in connection with his
current appeal.  No action is required of the veteran until
he is notified.

RAYMOND F. FERNER
	Acting Member, Board of Veterans' Appeals

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)
(1996).
- 2 -


judge_norm: MARK F HALSEY

text: This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases

text:
Citation NR: 9802000
Decision Date: 01/26/98		Archive Date: 02/02/98
DOCKET NO.  95-00 208	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for the cause of the
veteran�s death.

REPRESENTATION

Appellant represented by:	New Jersey Department of
Military and Veterans' Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Theresa M. Catino, Counsel

INTRODUCTION

The veteran served on active military duty from August 1968
to January 1972.

This appeal arises from a July 1994 rating decision of the
Atlanta, Georgia regional office (RO).  In that decision, the
RO denied service connection for the cause of the veteran�s
death.  The appellant was notified of the denial in a
September 1994 letter.  This denial letter also included
notice of denial of accrued benefits, death pension benefits,
and, by implication, dependency and indemnity compensation
under 38 U.S.C.A. � 1318.  In the appellant�s September 1994
notice of disagreement, she included a broadly worded
statement of disagreement with the September 1994
notification letter.  However, the only issue thereafter
developed for appellate review by the RO was a claim of
entitlement to service connection for the cause of the
veteran�s death.  These other issues are therefore referred
to the RO for appropriate action.

REMAND

In her substantive appeal, the appellant expressed a desire
to appear at a hearing before a member of the Board of
Veterans� Appeals (Board) sitting at the RO.  The Board later
sought clarification of her desire, and in a statement dated
in January 1998, the appellant requested a personal hearing
at the RO before a member of the Board.  Since a hearing on
appeal must be granted when an appellant requests one in a
timely fashion, further action is required to comply with
this request.  38 C.F.R. � 20.700(a) (1996).

Accordingly, the case is REMANDED for the following:

The RO should schedule a Travel Board
hearing for the appellant.  The appellant
should be advised that she is free to
submit any additional relevant evidence
at the time of her hearing.

Thereafter, the case should be returned to the Board.  By
this remand, the Board intimates no opinion as to the
ultimate outcome of this case.  The appellant need take no
action until notified by the RO.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans� Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans� Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA�s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

	MARK F. HALSEY
	Member, Board of Veterans' Appeals

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)
(1996).
- 2 -


text: The appeal is dismissed.

text:
Citation Nr: 9805000
Decision Date: 02/19/98    Archive Date: 03/02/98

DOCKET NO.  97-12 371	)	DATE
	)

On appeal from the decision of the
Department of Veterans Affairs Regional Office (RO) in
Muskogee, Oklahoma

THE ISSUE

Entitlement to waiver of recovery of an overpayment of
Chapter 30 education benefits.

FINDINGS OF FACT

1.	The veteran in this case served on active duty from
April 1990 to December 1993.

2.	In a decision dated March 31, 1997, the RO granted
waiver of an overpayment of Chapter 30 education benefits.

CONCLUSION OF LAW

No question of law or fact remain on appeal. 38 U.S.C.A.
� 7104 (West 1991); 38 C.F.R. � 20.101 (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a result of awards processed in September and November
1996, an overpayment of Chapter 30 education benefits in the
amount of $459.16 was created. Following receipt of a notice
of disagreement from the veteran, a statement of the case
with respect to waiver of recovery of the overpayment was
issued in January 1997. In March 1997, a Committee on Waivers
and Compromises at the RO held that due to fault on the part
of a school offical and absence of fault on the part of the
veteran, waiver of the overpayment was warranted.
Consequently, as the benefit sought on appeal has been
granted in full, no issue remains for appellate consideration
by the Board of Veterans� Appeals. 38 U.S.C.A. � 7104;
38 C.F.R. � 20.101 (1996).

ORDER

The appeal is dismissed.

	WAYNE M. BRAEUER
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision is the
notice of the action taken on this appeal by the Board of
Veterans' Appeals.

- 2 -


condition: eye

text:
Citation Nr: 9806000
Decision Date: 02/27/98    Archive Date: 03/20/98

DOCKET NO.  96-41 698	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky

THE ISSUES

1.  Entitlement to an increased evaluation for a detached
retina of the right eye, currently rated as 30 percent
disabling.

2.  Entitlement to an increased (compensable) evaluation for
malaria.

ATTORNEY FOR THE BOARD

Jeffrey M. Blankenship, Associate Counsel

INTRODUCTION

The veteran had active service from May 1943 to January 1946.

This matter comes before the Board of Veterans� Appeals
(Board) on appeal from an April 1946 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he is entitled to increased
evaluations for his service-connected detached retina of the
right eye and malaria.  He maintains that he cannot see out
of his right eye and that his vision in the left eye has
worsened.  He also contends that he has various problems
relating to his malaria, such as a decrease in his ability to
think and neurological problems.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), 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 claims for an evaluation in
excess of 30 percent for a detached retina of the right eye
and a compensable rating for malaria.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran�s claims has been requested by the
RO.

2.  The veteran�s vision in his right eye is limited to light
perception only and his best corrected vision in the left eye
is 20/30.

3. The veteran does not currently have active malaria or any
residuals of his prior episodes of malaria.

CONCLUSIONS OF LAW

1.  A disability evaluation in excess of 30 percent for a
detached retina of the right eye is not for assignment.
38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. �� 4.1, 4.7,
4.84a, Part 4, Code 6070 (1997).

2.  A compensable disability evaluation for malaria is not
for assignment.  38 U.S.C.A. �� 1155, 5107 (West 1991);
38 C.F.R. �� 4.1, 4.7, 4.88b, Part 4, Code 6304 (1996) (prior
to August 30, 1996) and Code 6304 (1997) (effective August
30, 1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran is seeking increased evaluations for his service-
connected detached retina and malaria.  As a preliminary
matter, the Board finds that the veteran�s claims on these
issues are plausible and, thus, well grounded within the
meaning of 38 U.S.C.A. � 5107(a); see Proscelle v. Derwinski,
2 Vet. App. 629 (1992) (a claim of entitlement to an
increased evaluation for a service-connected disability is a
well-grounded claim).  The Board is also satisfied that all
relevant facts have been properly developed and no further
assistance is required to comply with the duty to assist
mandated by 38 U.S.C.A. � 5107(a).  The veteran has been
provided with recent VA examinations to evaluate his
disabilities and recent treatment records have been obtained.

The current claims for increased evaluations were initiated
in January 1996.  In accordance with 38 C.F.R. �� 4.1, 4.2,
4.41, 4.42 (1997) and Schafrath v. Derwinski, 1 Vet. App. 589
(1991), the Board has reviewed the veteran�s available
service medical records as well as all other evidence of
record pertaining to the history of his service-connected
disabilities.  The Board has identified nothing in this
historical record which suggests that the current evidence is
not adequate to fairly determine the rating to be assigned
for his disabilities.

Private treatment records from 1971 show the veteran was
noted to have positive malaria smears.  The diagnosis was
chronic malaria.

VA outpatient treatment records show the veteran has been
seen for treatment of problems involving his left eye.
However, his visual acuity in the left eye has been shown to
be 20/30 or better.

On a special VA visual examination in May 1996, the veteran�s
vision was noted as hand motion in the right eye and 20/30 in
the left.  There was significant retinal scarring and
pigmentary changes in the right eye.  The assessments
included a retinal scar in the right eye with decreased
vision and decreased automated visual field in the left eye
but relatively normal visual field by confrontation in the
left eye.

On a VA examination for systemic conditions in May 1996, the
veteran reported that he had a history of episodes of malaria
with high fevers, shaking chills, and pain under both costal
margins.  He reported having what may have been a small
attack in 1970, but that since 1970 he had no such episodes.
Diagnoses included a history of malaria with no difficulty
since 1970.

The report of a blood test, dated in June 1996, reveals that
a malaria smear was normal and no parasites were seen.

VA determines disability evaluations through a schedule of
ratings which is based on the average impairment of earning
capacity resulting from specific service-connected
disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  In order
to qualify for a higher evaluation than he is currently
assigned, the veteran must have a disability which more
nearly approximates the criteria required for the next higher
evaluation.  Otherwise, the lower rating will be assigned.
38 C.F.R. � 4.7.

In the case of eye disorders, VA rates any disability
according to the loss of visual acuity as compared with the
criteria in the VA rating schedule.  The rating schedule
provides that detachment of the retina is to be rated on the
basis of impairment of visual acuity.  The veteran�s
disability has been evaluated under 38 C.F.R. � 4.84a,
Diagnostic Code 6070, which covers impairment of central
visual acuity.  When there is blindness in one eye, with only
light perception, the rating to be assigned is 30 percent
when vision in the other eye is 20/40 (Code 6070) and a 40
percent rating will be assigned when vision in the other eye
is 20/50 (Code 6069).  It is further provided that combined
ratings for disabilities of the same eye should not exceed
the amount for loss of vision of that eye unless there is an
enucleation or a serious cosmetic defect added to the total
loss of vision.  38 C.F.R. � 4.80 (1997).

On recent visual examination, the veteran�s vision in his
right eye was found to be capable of detecting hand motion
only and his left eye corrected vision was 20/30.  Recent
treatment records show various left eye problems, but his
vision was recorded as 20/30 or better.  These findings
warrant a 30 percent disability rating according to the
rating schedule, under Diagnostic Code 6070.  Thus, the Board
finds that the 30 percent rating assigned by the RO was
appropriate.  38 U.S.C.A. �� 1155, 5107; 38 C.F.R. � 4.88b,
Part 4, Code 6304.

The veteran�s malaria has been evaluated under 38 C.F.R. �
4.88b, Diagnostic Code 6304.  During the pendency of the
veteran�s appeal, the rating criteria under this code section
were changed, effective August 30, 1996.  See, Schedule for
Rating Disabilities; Infectious Diseases, Immune Disorders
and Nutritional Deficiencies, 61 Fed. Reg. 39875 (July 31,
1996).  �Where the law or regulation changes after a claim
has been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version most
favorable to appellant should ... apply unless Congress
provided otherwise or permitted the Secretary ... to do
otherwise and the Secretary did so.�  See Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991).  Therefore,
whichever version of the criteria is more favorable to the
veteran should be applied.

Under the former criteria, the rating schedule provided that
a 10 percent evaluation was warranted for malaria which had
been recently active, with one relapse in the past year, or
for old cases of malaria with moderate disability.  However,
compensable ratings could not be assigned based on the
veteran's unsupported claim or statement.  Note(1).  38
C.F.R. � 4.88a, Code 6304 and Note (1) (1996) (prior to
August 30, 1996).  Under the new version of the rating
criteria, malaria is rated as 100 percent disabling during
active disease and thereafter the residuals, such as liver or
spleen damage, are rated under the appropriate system.
However, relapses must be confirmed by the presence of
malarial parasites in blood smears.  38 C.F.R. � 4.88b, Code
6304, and Note (1997) (effective August 30, 1996).

The record shows that the veteran does not currently have
malaria and there is no medical evidence that he has had
active malaria since the 1970s.  Furthermore, there is no
medical evidence to establish that he currently has any
residuals resulting from his prior episodes of malaria.
While he has reported a decrease in his ability to think and
neurological problems that he attributes to his malaria, the
medical evidence does not indicate that any of his claimed
symptoms are due to his history of malaria.  Although the
veteran may contend to the contrary, he lacks the medical
knowledge or expertise to offer a probative opinion regarding
the etiology of his symptoms. Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).  As the veteran does not currently have
active malaria and he has not been shown to have residuals as
a result of his prior episodes of malaria, a compensable
rating is not warranted under either version of the rating
schedule applicable to malaria.  38 C.F.R. � 4.88a, Code
6304.

In reaching these decisions, the Board has considered the
complete medical history of the disabilities in question as
well as the current manifestations and the effect the
disabilities may have on the earning capacity of the veteran.
38 C.F.R. �� 4.1, 4.2.  Further, the Board has carefully
reviewed the evidence of record; however, the Board does not
find the evidence so evenly balanced that there is doubt on
any material issue.  38 U.S.C.A. � 5107.

ORDER

Entitlement to an evaluation in excess of 30 percent for a
detached retina of the right eye is denied.

Entitlement to a compensable rating for malaria is denied.

	WAYNE M. BRAEUER
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), 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, 102 Stat. 4105, 4122 (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.

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