condition: skin

text:
Citation Nr: 0111001
Decision Date: 04/16/01    Archive Date: 04/23/01

DOCKET NO.  00-11 385	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to an increased rating for varicose veins of
the left lower extremity, currently assigned a 20 percent
evaluation.

2.  Entitlement to an increased (compensable) rating for skin
disease, classified as atopic dermatitis.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

R.P. Harris, Counsel
INTRODUCTION

The appellant had active service from October 1977 to
February 1981.  This matter came before the Board of
Veterans' Appeals (Board) on appeal from a January 2000
rating decision by the Montgomery, Alabama, Regional Office
(RO), which, in part, confirmed respective 20 percent and
noncompensable evaluations for varicose veins of the left
lower extremity and a skin disease, classified as atopic
dermatitis.  That rating decision also denied service
connection for a foot condition, on the basis that the claim
was not well grounded.

Although appellant expressed timely disagreement with that
January 2000 rating decision's denial of service connection
for a foot condition, after a Statement of the Case on said
issue was provided him, he did not subsequently file a
Substantive Appeal on said issue.  See a May 2000 VA Form 9,
wherein appellant specifically noted that he had read the
Statement of the Case and that he was only appealing the left
lower extremity varicose veins and dermatitis increased
rating issues; and his substantive arguments therein were
limited to said increased rating issues.  According to
38 C.F.R. � 20.200 (2000), "[a]n appeal consists of a timely
filed Notice of Disagreement in writing and, after a
Statement of the Case has been furnished, a timely filed
Substantive Appeal."  Consequently, since he limited his
Substantive Appeal to said increased rating issues, the Board
does not presently have jurisdiction over the foot condition
service connection issue.

Parenthetically, although in June 2000 and January 2001
written statements from appellant's representative, that
service connection issue was listed as an appellate issue,
none of these statements set out "specific arguments
relating to errors of fact or law" on that issue as to
constitute a "Substantive Appeal", as that term is defined
by regulation.  38 U.S.C.A. � 7105 (West 1991) and 38 C.F.R.
�� 20.200, 20.202 (2000).  Consequently, the Board construes
the appellate issues as those delineated on the title page of
this decision, and will proceed accordingly.

FINDINGS OF FACT

1.  The appellant's service-connected left lower extremity
disability is manifested primarily by a cluster of tender,
firm, varicose veins involving that leg with evidence of
stasis pigmentation/dermatitis.  He reportedly experiences
lower extremity edema at the end of the day, the clinical
evidence does not reveal any persistent edema or ulceration.

2.  The appellant's service-connected skin disease is
manifested primarily by several, hypopigmented, thick,
crusting, keratotic plaques with follicular plugging, each
measuring approximately a few inches, on both lower
extremities.

3.  The extent of skin disease involvement on both lower
extremities may be characterized as affecting a rather
extensive area, there is, however, no objective evidence of
constant exudation/itching, extensive lesions, marked
disfigurement, ulceration, extensive exfoliation/crusting, or
systemic/nervous manifestations.

CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 20 percent
for appellant's left lower extremity varicose veins have not
been met.  38 U.S.C.A. � 1155 (West 1991); 38 C.F.R.
�� 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.104, Code 7120 (2000).

2.  The criteria for a 10 percent evaluation, but no more,
for appellant's service-connected skin disease have been met.
38 U.S.C.A. � 1155 (West 1991); 38 C.F.R. �� 3.102,
3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.118, Codes 7899-7817,
7806 (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

It should be pointed out that under the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, � 3(a), 114
Stat. 2096, 2096-2097 (2000) (to be codified as amended at
38 U.S.C. � 5103), new duty to assist provisions are in
effect, that include requiring VA to obtain relevant medical
records and provide medical examination and opinion when such
examination and opinion are necessary to make a decision on
the claim.  After reviewing the record, the Board is
satisfied that all relevant facts with respect to said
disabilities rating claims have been properly developed.  No
useful purpose would be served by remanding said issues with
directions to provide further assistance to the appellant.  A
comprehensive medical history and detailed findings regarding
his service-connected disabilities on appeal over the years
are documented in the medical evidence.

Additionally, VA peripheral vascular and dermatologic
examinations were conducted in August 1999 and additional
private medical records were obtained.  Said examinations
are, in totality, sufficiently detailed and comprehensive
regarding the nature and current severity of the service-
connected disabilities at issue, and provide a clear picture
of all relevant symptoms and findings.  There is no
indication that more recent, relevant medical records exist
that would indicate a greater degree of severity of said
disabilities in issue than that shown in said VA
examinations.  Thus, the Board concludes that the duty to
assist the appellant as contemplated by applicable
provisions, including the Veterans Claims Assistance Act of
2000, has been satisfied with respect to the issues on
appeal.

Disability evaluations are determined by application of a
schedule of ratings which is based on average impairment of
earning capacity under the VA's Schedule for Rating
Disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.  The
Board will consider appellant's service-connected
disabilities on appeal in the context of the total history of
those disabilities, particularly as they affect the ordinary
conditions of daily life, including employment, as required
by the provisions of 38 C.F.R. �� 4.1, 4.2, 4.10 and other
applicable provisions.  Schafrath v. Derwinski, 1 Vet. App.
589 (1991).

I.  A Rating in Excess of 20 Percent for Left Lower Extremity
Varicose Veins

Appellant contends, in essence, that his service-connected
varicose veins of the left lower extremity are of such
severity as to warrant a higher evaluation.  It is contended
that this disability is manifested by severe pain,
discomfort, edema, and eczema and that he has to wear
supportive stockings.

As an initial matter, it should be pointed out that
appellant's claim for an increased rating for left lower
extremity varicose veins was received subsequent to the
January 12, 1998 effective date of the VA's amendment of its
regulations for rating cardiovascular system disabilities,
including varicose veins.  See 62 Fed. Reg. 65,207-224 (Dec.
11, 1997) (codified at 38 C.F.R. � 4.104 (1998-2000)).  Under
the revised criteria of Diagnostic Code 7120, a 20 percent
rating may be assigned for varicose veins with persistent
edema, incompletely relieved by elevation of an extremity,
with or without beginning stasis pigmentation or eczema.  A
40 percent rating requires persistent edema and stasis
pigmentation or eczema, with or without intermittent
ulceration.  A 60 percent rating requires persistent edema or
subcutaneous induration, stasis pigmentation or eczema, and
persistent ulceration.  A 100 percent rating requires
massive, board-like edema with constant pain at rest.  NOTE:
These evaluations are for involvement of a single extremity.

Appellant's service medical records indicate that
varicosities involving superficial veins of the distal left
leg were noted in the 1970's and early 1980's.  VA clinical
records reveal that in the late 1980's, he reportedly was a
mail carrier.  He wore support stockings and complained of
varicose veins with mild phlebitis.  Clinically, there were
left lower extremity varicose veins with a small, firm area,
noted as consistent with a clot.  On January 1990 VA
examination, it was reported that as a mail carrier, he
walked several miles a day; and that, by the end of the day,
would experience left lower extremity swelling.  Clinically,
left lower extremity varicose veins were described as marked
and extending from the knee to the ankle.  However, no stasis
changes, edema, or ulcerations were noted.

On February 1994 VA examination, appellant's complaints
included constant left leg pain aggravated by standing or
walking; and occasional lower extremity swelling.
Clinically, large, left lower extremity tortuous varicose
veins were described as extending from just below the knee to
the ankle.  However, no edema or ulcerations were noted.
Diagnoses included severe left lower extremity saphenous vein
varicosities with mild stasis dermatitis.

Private clinical records dated from 1985 to 1999 noted that
appellant had left lower extremity vein varicosities.
However, no edema or ulcerations were noted.

On August 1999 VA peripheral vascular and feet examinations,
appellant's complaints included lower extremity tingling and
throbbing discomfort.  He reportedly was a mail carrier and
stated that standing most of the day caused significant
discomfort.  He wore supportive stockings.  No medications or
history of surgery for said disability were noted.
Clinically, there were tender, firm, palpable varicose veins
in a cluster (approximately 4-cm in transverse and vertical
diameter), located 12 cm along the left lower extremity
medially and posteriorly, with evidence of stasis
pigmentation/dermatitis.  However, there was no edema
objectively shown.

Based on the overall clinical evidence of record, it is the
Board's opinion that although as a mail carrier, appellant
reportedly experiences lower extremity edema at the end of
the day after standing for a lengthy period, and tender left
lower extremity varicose veins with stasis pigmentation or
eczema have been clinically shown, nevertheless the clinical
evidence does not confirm any persistent edema or ulceration
as to warrant a higher evaluation under amended Diagnostic
Code 7120.

The Board has considered the provisions of 38 C.F.R. � 4.10,
which relates to functional loss.  Significantly, however,
the recent VA clinical evidence reveals that appellant
ambulates without any significant gait impairment.  The
clinical evidence does not show that appellant's service-
connected left lower extremity varicose veins present such an
exceptional or unusual disability picture with related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards, as is
required for an extraschedular evaluation.  38 C.F.R.
� 3.321(b)(1).  Since the preponderance of the evidence is
against allowance of an evaluation in excess of 20 percent
for left lower extremity varicose veins, the benefit-of-the-
doubt doctrine is inapplicable, for the foregoing reasons.

II.  A Compensable Rating for the Service-Connected Skin
Disease

Appellant contends, in essence, that his service-connected
skin disease is of such severity as to warrant a compensable
evaluation.  It is contended that this disability is
manifested by pain, discomfort, and constant itching.

The Board has considered the appropriateness of rating
appellant's service-connected skin disease under all
potentially applicable diagnostic codes.  Atopic dermatitis
is an unlisted condition that may be rated by analogy to
closely related conditions in which not only the functions
affected, but the anatomical localization and symptomatology
are closely analogous.  38 C.F.R. � 4.20.  It appears that
the RO has rated appellant's atopic dermatitis as dermatitis
exfoliativa under Code 7899-7817.  Under Code 7817,
dermatitis is rated as analogous to eczema, dependent upon
location, extent, and repugnant or otherwise disabling
character of manifestations.  Under Diagnostic Code 7806, a
noncompensable rating may be assigned for eczema with slight,
if any, exfoliation, exudation or itching if involving a
nonexposed surface or small area.  A 10 percent rating
requires exfoliation, exudation or itching if involving an
exposed surface or extensive area.  A 30 percent rating
requires exudation or constant itching, extensive lesions, or
marked disfigurement.  A 50 percent rating requires
ulceration or extensive exfoliation or crusting, and systemic
or nervous manifestations or is exceptionally repugnant.  38
C.F.R. � 4.118, Code 7899-7817, 7806.

Appellant's service medical records indicate that on occasion
during 1979, he was treated for a scaly rash on various parts
of the body, including the chest, arms, and legs.  On January
1990 VA examination, mild atopic dermatitis was diagnosed.  A
November 1991 VA outpatient treatment record indicates that
the skin was unremarkable, although he reported having a body
rash one or two times a year.

On February 1994 VA dermatologic examination, appellant had
multiple keratotic follicular papules on the lateral chest
and proximal arms, a hyperpigmented xerotic patch on the left
lower leg, and scale at the scalp hairline.  Seborrheic
dermatitis, probable keratosis pilaris versus folliculitis,
and mild stasis dermatitis on the left lower leg were
diagnosed.

Private clinical records dated from 1985 to 1999 indicated
that appellant's skin disease had been treated with medicated
cream in September, October, and December 1996 and March
1997.  In January 1998, he complained of a rash on the leg,
trunk, and elbows.  Clinically, there was a macular rash on
the arms, trunk, and legs.  In January 1999, examination of
the skin revealed psoriatic lesions primarily on the right
leg.

On August 1999 VA dermatologic examination, appellant
complained of skin lesions on the legs that occasionally
flare.  He did not indicate any other bodily area was
currently affected by his skin disease.  He reportedly used a
medicated cream daily.  He stated that the lesions on the
legs were quite pruritic and that he tries to avoid
scratching.  Clinically, there were several, hypopigmented,
thick, crusting, keratotic plaques with follicular plugging,
each measuring approximately a few inches, on both lower
extremities.  According to common usage and as defined in
dictionaries, the term "extensive" means "large in extent,
range, or amount."  With resolution of reasonable doubt in
appellant's favor, it is the Board's opinion that the extent
of skin disease involvement on both lower extremities, as
clinically described on that examination, may reasonably be
characterized as affecting a rather extensive area.
Consequently, the criteria for a compensable 10 percent
evaluation under Code 7899-7806 has more nearly been
approximated.  However, an evaluation in excess of 10 percent
would not be warranted, since there is no objective evidence
of constant exudation/itching, extensive lesions, marked
disfigurement, ulceration, extensive exfoliation/crusting, or
systemic/nervous manifestations.

The Board has considered the provisions of 38 C.F.R. � 4.10,
which relates to functional loss.  Significantly, the 10
percent evaluation herein awarded by the Board more than
adequately compensates appellant for any functional
impairment from his skin disease, particularly since there is
no objective evidence of constant exudation/itching,
extensive lesions, marked disfigurement, ulceration,
extensive exfoliation/crusting, or systemic/nervous
manifestations.  The clinical evidence does not show that
appellant's service-connected skin disease presents such an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards, as is required for an extraschedular evaluation.
38 C.F.R. � 3.321(b)(1).

ORDER

An increased rating for varicose veins of the left lower
extremity is denied.  To this extent, the appeal is
disallowed.

An increased rating of 10 percent, but no more, for skin
disease, classified as atopic dermatitis, is granted, subject
to the applicable regulatory provisions governing payment of
monetary awards.  To this extent, the appeal is allowed.

	MICHAEL D. LYON
	Member, Board of Veterans' Appeals


series: legacy

judge_norm: DEBORAH W SINGLETON

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text: The appeal is denied.

text:
Citation Nr: 0116001
Decision Date: 06/12/01    Archive Date: 06/18/01

DOCKET NO.  99-23 246	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a waiver of recovery of an overpayment of VA
improved death pension benefits in the amount of $29,927.00

REPRESENTATION

Appellant represented by:	Virginia Department of
Veterans Affairs

ATTORNEY FOR THE BOARD

J. A. Markey, Counsel

INTRODUCTION

The veteran served on active duty from May 1941 to June 1945.
He died on January [redacted], 1985.

This matter came before the Board of Veterans' Appeals
(Board) from March and August 1999 decisions by the Committee
on Waivers and Compromises (Committee) of the Roanoke,
Virginia Regional Office (RO).  The appellant was scheduled
to attend a hearing before the Board in Washington, D.C.  in
March 2001, but canceled this hearing, as reflected in a
statement received in January 2001.

FINDINGS OF FACT

1.  The appellant applied for VA improved death pension
benefits in March 1993, at which time she indicated that she
was not in receipt of any income, to specifically include
wage income and black lung benefits; she did note that her
minor son received benefits from the Social Security
Administration (SSA).

2.  The appellant was awarded improved death pension benefits
in February 1994, effective April 1, 1993, and was informed
that improved death pension was, essentially, an income based
program, and that she was obligated to report changes in
income immediately.

3.  In an Improved Pension Eligibility Verification Reports
(EVRs) received in April 1994 and May 1995, the appellant
indicated that she was in receipt of no income, including in
the form of wage income and black lung benefits; she did note
the SSA benefits for her son in the April 1994 EVR.

4.  In or about June 1998, the RO discovered that the
appellant had been in receipt of previously unreported wage
income since 1995.

5.  In December 1998, the RO retroactively reduced the
appellant's pension benefits effective February 1, 1995,
creating an overpayment in the amount of $14,772.

6.  In a Financial Status Report (FSR) submitted in January
1999, the appellant, for the first time, reported that she
was in receipt of black lung benefits.

7.  In May 1999, the RO retroactively terminated the
appellant's pension benefits effective April 1, 1993,
creating an additional overpayment in the amount of $15,155,
bringing the total overpayment to $29,927.

8.  The appellant was free from fraud, misrepresentation or
bad faith in the creation of the overpayment in question but
was solely at fault in its creation by her failure to report
income received from 1995 and prior receipt of black lung
benefits.

9.  The failure of the Government to insist upon its right to
repayment of the assessed overpayment would result in unjust
enrichment of the appellant, inasmuch as she accepted
benefits to which she was not entitled.

10.  Repayment of the debt would not defeat the purpose of
the VA pension program.

11.  Repayment of the debt would not deprive the appellant of
the basic necessities of life.

CONCLUSION OF LAW

The appellant was free from fraud, misrepresentation, and bad
faith in the creation of the overpayment; however, recovery
of the overpayment of improved death pension benefits in the
amount of $29,927, would not be against the principles of
equity and good conscience.  Thus, recovery of the
overpayment is not waived.  38 U.S.C.A. � 5302 (West 1991 &
Supp. 2000); 38 C.F.R. �� 1.963, 1.965 (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, it is noted that VA improved death pension is a
benefit payable by the VA to surviving spouses of veterans of
a period of war because of disability, and is an income based
program.  Basic entitlement exists if, among other things,
the spouse's income is not in excess of the applicable
maximum pension rate specified in 38 C.F.R. � 3.23.
38 U.S.C.A. � 1541 (West 1991); 38 C.F.R. �� 3.3(b)(4)
(2000).  The maximum death pension rate is established
pursuant to this law, and, for example, effective from
December 1, 1992, the established annual rate (income
limitation) for a surviving spouse with one dependent was
$6,689.  See VA Manual M 21-1, Part 1, Appendix A (Change 12,
February 18, 1993).

A review of the record reveals that in March 1993 the
appellant filed an EVR which was construed to be a claim for
VA improved pension benefits.  On this EVR, she indicated
that she was not in receipt of any income from any sources,
to include in the form of earnings or black lung benefits
(she specifically wrote "0" in the spaces provided for
these types of income), but did indicate that her minor son
was in receipt of benefits from Social Security
Administration (SSA), in the amount of $380 per month.

Thereafter, in February 1994 (and upon receipt of additional
information from the appellant), the RO awarded the appellant
improved death pension benefits, effective April 1, 1993; the
award took into account a portion of her son's SSA benefits
(over half of this benefit was excluded from income under
38 C.F.R. � 3.272(m); see also 3.23).  In the February 1994
award letter (and in the VA Form 21-8767 attachment), the
appellant was informed that improved death pension was,
essentially, an income based program, that she was obligated
to report changes in income immediately; it was specifically
pointed out in the letter that prompt notification could
prevent or reduce any overpayment.  A copy of form VA 21-8767
was also attached to letters dated in July and October 1994.

In an EVR received in April 1994, the appellant again
specifically indicated that she was not receiving any income
in the form of earnings or black lung benefits.  In a
Financial Status Report (FSR) (VA Form 20-5655) dated in
August 1994, submitted in conjunction with a request for
waiver of recovery of an overpayment subsequently liquidated
by an amended award, the appellant specifically stated that
her income consisted solely of VA pension.  In an EVR
received in May 1995, the appellant once again indicated that
she was in receipt of no income from any sources, and
specifically indicated that this included wage income and
black lung benefits.

In June 1998, the RO informed the appellant that they
proposed to retroactively reduce her death pension effective
February 1, 1995, as it was discovered that she had been in
receipt of previously unreported income during 1995 to
January 1998.  In response, the appellant submitted a
statement indicating that she received $244.50 per month from
January to May 1998, and attached a pay stub indicating that
she was issued a check in this amount (with a gross amount of
$264.75) in September 1996 (she indicated that this was the
only pay stub she had); she did not dispute that she had
received income beginning in 1995.

In December 1998, the RO retroactively reduced the
appellant's pension benefits from February 1, 1995, which
created an overpayment in the amount of $14,772.

In a statement received in January 1999, the appellant
requested a waiver of recovery of the indebtedness charged
and the matter was thereby referred to the Committee for
further action.  Along with her request, she submitted
another FSR, in which, for the first time, she indicated that
she was in receipt of black lung benefits, in the amount of
$360 per month.  She also noted that she was earning $350 per
month in salary.

In a March 1999 decision, the Committee did not find fraud,
misrepresentation, or bad faith on the part of the appellant
with respect to creation of the $14,772 overpayment at issue
(i.e. that a statutory bar to waiver does not exist under 38
U.S.C.A. � 5302(c) (West 1991 & Supp. 2000)).  However, the
Committee denied the appellant's request for waiver on the
basis that that she was at fault in the creation of the
overpayment and was unjustly enriched.

Subsequent to this decision, and also in March 1999, the RO
informed the appellant that they proposed to retroactively
terminate her death pension effective April 1, 1993, due to
her previously unreported receipt of black lung benefits.  In
May 1999, this proposed action was taken, creating an
additional overpayment in the amount of $15,155.

In a statement received in June 1999, the appellant requested
a waiver of recovery of the indebtedness charged and the
matter was thereby referred to the Committee for further
action.

In an August 1999 decision, the Committee did not find fraud,
misrepresentation, or bad faith on the part of the appellant
with respect to creation of this $15,155 overpayment, but
denied the request for waiver on the basis that that she was
at fault in the creation of the overpayment and was unjustly
enriched.

The appellant has perfected an appeal regarding the denial of
both claims for waiver of recovery of an overpayments, which
total $29,927 (henceforth referred to as the overpayment).
In her November 1999 substantive appeal (VA Form 9) she
specifically states that she does not disagree with the
overpayment itself, but contends that she is unable to pay
the debt.  She also contends (and previously contended, in
her requests for waiver of recovery of the overpayment) that
she did not realize that she was incorrectly filing the EVRs
as she did not understand them, and that she was unaware she
was receiving benefits that she was not entitled to receive.

After an independent review of the record, and resolving all
doubt in favor of the appellant, the Board concurs with the
determination that the she was free from fraud,
misrepresentation, or bad faith with respect to creation of
the overpayment.  Therefore, waiver is not precluded under
the provisions set forth in 38 U.S.C.A. � 5302(a) (West 1991
& Supp. 2000).  However, to dispose of this matter on appeal,
the Board must determine whether the recovery of the
overpayment would be against the principles of equity and
good conscience, thereby permitting waiver under 38 U.S.C.A.
� 5302(a) (West 1991 & Supp. 2000) and 38 C.F.R. �� 1.963(a),
1.965(a) (2000).

The regulation provides that the standard of "equity and good
conscience" will be applied when the facts and circumstances
in a particular case indicate the need for reasonableness and
moderation in the exercise of the Government's rights.
38 C.F.R. � 1.965(a) (2000).  In such a determination
consideration will be given to elements which include the
degree of fault of the debtor; a balancing of fault between
the debtor and VA; whether recovery of the overpayment would
cause undue financial hardship to the debtor, or result in
unjust enrichment; and whether repayment of the debt would
defeat the purpose for which it was intended.  38 U.S.C.A.
� 5302 (West 1991 & Supp. 2000); 38 C.F.R. � 1.965 (2000).

With regard to "fault," the Board points out that, as noted
above, the February 1994 award letter and subsequent letters,
with attachments, notified the appellant that her pension was
based on her reported income and that she was obligated to
report any changes in family income immediately.  Despite
such notice, the appellant did not inform the RO of her
receipt of employment income beginning in 1995 until it was
discovered by them in June 1998; and, it was only then
(shortly after the initial retroactive reduction of benefits)
that she first informed the RO of her receipt of black lung
benefits.

As noted, the appellant has contended that she did not fully
understand the EVRs she had previously filled out.  However,
to be quite frank, the Board simply does not find the
appellant's contentions credible given the objective evidence
of record.  In this regard, and as alluded to above, there
were specific spaces provided for employment wages and black
lung benefits in the EVRs filled out by the appellant in
March 1993 (which was also her application), April 1994, and
May 1995, and in each, she wrote or typed the number "0."
However, the Board notes that the appellant knew enough to
note, in these EVRs, her son's SSA benefits, what money was
used towards his education expenses (March 1993 EVR), and
noted his benefits would terminate (which would increase her
pension award).  As well, in the FSR submitted in August 1994
the appellant specifically stated that her income consisted
solely of VA pension.

Further review of the record reflects that the appellant
filled out a detailed application for burial benefits (VA
Form 21-530) and an application for the exclusion of
children's income (from income for pension purposes, VA Form
21-0571).  As well, in the August 1994 FSR, the veteran
included specific expenses for things such as clothing,
taxes, and insurance.  Attention to such detail in filling
out these forms strongly indicates that the appellant was
well aware of the information required in similar forms, such
as EVRs.

The Board finds that it is clear that the appellant was
purposely not forthright in providing accurate income
information, and in fact was deceptive in this regard; and as
such, finds that the appellant was solely at fault in the
creation of the debt.

The Board points out that the VA, in a timely manner,
adjusted and then terminated the appellant's award after it
was discovered that she had been in receipt of income since
1995, and then had previously been in receipt of black lung
benefits.  As such, the Board finds that the appellant, and
not VA, was at fault for the debt created in this case.  The
appellant accepted VA pension benefits she knew (or at the
very least, should have known) she was not entitled to
receive.

As to the element of "undue financial hardship," the Board
observes that the regulation provides that consideration
should be given to whether collection of the indebtedness
would deprive the debtor or her family of the basic
necessities.  According to a FSR received in June 1999, the
appellant's monthly income totaled $710, her expenses
$877.11, for a deficit of $167.11.  Among the expenses are
monthly payments for an automobile (to a bank) and towards
credit card debt, totaling $197.

Given the above information, the Board finds that the
recovery of the overpayment would not result in undue
financial hardship on the appellant and deprive her of the
basic necessities of life.  In this regard, it should be
noted that the Government is entitled to the same
consideration as other creditors or potential creditors (and
the veteran is, as noted above, making payments of almost
$200 per month to creditors).

A review of the other elements pertaining to the principles
of equity and good conscience, as set forth by 38 C.F.R.
� 1.965(a) (2000), taken alone, does not persuade the Board
that the Government should forego its right to collection of
the indebtedness in this instance.  The Board finds that
recovery of the overpayment would not defeat the purpose of
the death pension program, which is intended to provide
financial support to needy widows and their dependents and
which is based on a calculation of all countable income, and
requires complete disclosure from the pension recipients; and
in this case, as noted, the appellant has been less than
forthright in disclosing her income.  Similarly, failure to
recover the overpayment would result in unjust enrichment,
since the appellant was paid benefits to which she was not
entitled during the relevant time period.

There is no specific allegation or suggestion in the record
that the appellant changed her position to her detriment, so
as to make recovery of the overpayment against the standard
of equity and good conscience.

As such, and especially given to degree of fault in this
matter, the Board finds that the appellant should be
required, and is able, to repay the debt.  The Board finds
that the facts of this case do not demonstrate that recovery
of the overpayment would be against the principles of equity
and good conscience.  38 C.F.R. �� 1.963, 1.965 (2000).
Thus, the Board concludes that a waiver of recovery of
$29,927 of the overpayment of improved death pension benefits
at issue in this appeal is not warranted.

As a final point, the Board notes that on November 9, 2000,
the President signed H.R. 4864, the "Veterans Claims
Assistance Act of 2000."  The purpose of this bill is to
reverse the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, which held that the
Secretary had no authority to provide assistance to a
claimant whose claim was not "well grounded."  The bill
also establishes a number of procedural requirements for VA
in dealing with claims for benefits.  See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000).

The RO has not had an opportunity to address this new
legislation with regard to the appellant's claim for a waiver
of recovery of an overpayment in this matter.  However, by
virtue of the October 2000 Statement of the Case, the
appellant has been given notice of the evidence necessary to
support the claim.  The Board finds the duty to assist the
appellant in the development of the claim under the VCAA has
been met.

ORDER

The appeal is denied.

	DEBORAH W. SINGLETON
	Member, Board of Veterans' Appeals


judge_norm: P M DILORENZO

disposition: remanded

text:
Citation Nr: 0117001
Decision Date: 06/25/01    Archive Date: 07/03/01

DOCKET NO.  98-10 579A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased evaluation for residuals of a
muscle injury of the right leg, Muscle Group (MG) XI,
currently evaluated as 20 percent disabling.

REPRESENTATION

Appellant represented by:	National Veterans Legal
Services Program, Inc.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

G. Jivens-McRae, Counsel
INTRODUCTION

The veteran served on active duty from March 1952 to
June 1954.  He had more than four years of other service
(unverified).

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1998 rating decision of the
San Juan, Puerto Rico, Department of Veterans Affairs (VA)
Regional Office (RO), which denied an increased evaluation
for residuals of a muscle injury of the right leg, Muscle
Group (MG) XI, currently evaluated as 20 percent disabling.

The veteran was scheduled for a personal hearing before a
member of the Board in April 2001; however, he canceled this
hearing in February 2001.

REMAND

Unfortunately, remand is required in this appeal so that
additional development may be undertaken in order to fulfill
the Department's duty to assist the veteran.  See Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
� 3(a), 114 Stat. 2096, 2096-97 (2000) (to be codified at 38
U.S.C. � 5103A)).

The veteran claims that residuals of muscle injury, right
leg, MG XI, is more severe than the current evaluation
reflects.  He claims that he has limited function of the
entire right lower leg, severe pain, loss of sensitivity, and
loss of strength.

The veteran underwent a VA examination in December 1999.  The
examiner indicated that the veteran was seen by VA in the
Primary Care Clinic due to pain in his leg in July 1999.  He
had a Rehabilitation Medicine Service (RMS) evaluation in
September 1999 due to pain and weakness of the right leg.  He
received treatment and physical therapy.  He was scheduled
for another RMS December 1999.  None of these records are
associated with the claims folder.  VA treatment records are
considered to be constructively included within the record,
and must be acquired if material to an issue on appeal.
Therefore, in the instant claim, it is necessary to obtain
the aforementioned medical records, if they exist, prior to a
final decision in this case. See VCAA, Pub. L. No. 106-475,
� 3(a), 114 Stat. 2096, 2096-97 (2000) (to be codified at 38
U.S.C. � 5103A(c)); see also Bell v. Derwinski, 2 Vet. App.
611, 613 (1992).

Also, to ensure that the duty to assist the veteran has been
fulfilled, he should be afforded an additional VA examination
after all his treatment records have been obtained, and the
examiner should be provided access to the claims file.  See
VCAA, Pub. L. No. 106-475, � 3(a), 114 Stat. 2096, 2097-98
(2000) (to be codified at 38 U.S.C. � 5103A(d)).

Finally, the veteran's December 1999 VA examination indicates
that the veteran had adhesions.  The examiner did not
indicate where and what type of adhesions of the right leg
were present.  However, the same examiner evaluated the
veteran earlier in August 1998 and noted that no adhesions
were found.  It is not clear whether the adhesions noted on
the VA examination in December 1999 are associated with the
veteran's service-connected disability, as he was previously
treated for an ulcer and cellulitis of the right leg which
the same examiner, in February 1998, indicated was not
associated with the veteran's service-connected gunshot
wound.  This matter should be clarified on remand.

Accordingly, the case is REMANDED to the RO for the
following:

1.  Notify the veteran of the information
and evidence needed to substantiate his
claim and of what part of such evidence
the Secretary will attempt to obtain on
his behalf.  VCAA, Pub. L. No. 106-475,
� 3(a), 114 Stat. 2096, 2096-97 (2000) (to
be codified as amended at 38 U.S.C.
� 5103(a)).  The notice should include
informing him of the need for the
following:

a.  the names, addresses,
approximate dates of treatment, and
appropriate releases for the
treatment records of all private
care providers who treated the
veteran for residuals of a muscle
injury of the right leg from 1997 to
the present; and

b.  the names of any VA medical
facilities at which the veteran
received treatment or evaluation for
residuals of a muscle injury of the
right leg from 1997 to the present,
and the approximate dates of such
treatment.

2.  Request all private treatment records
for which the veteran provides releases,
and associate with the claims file all VA
treatment records of which he provides
adequate identifying information
(including a July 1999 visit to the
primary care clinic, RMS evaluations in
September 1999 and December 1999, and
physical therapy records, if any).

3.  If any development undertaken pursuant
to information or releases provided by the
veteran above is unsuccessful, undertake
appropriate notification action, to
include notifying him what efforts were
undertaken to develop the evidence, what
records have been obtained, and what
further action will be taken.  VCAA, Pub.
L. No. 106-475, � 3(a), 114 Stat. 2096,
2097-98 (2000) (to be codified at 38
U.S.C. � 5103A(b)(2)).

4.  Once the foregoing development has
been accomplished to the extent possible,
and the medical records have been
associated with the claims file, schedule
the veteran for an appropriate VA
examination.  The claims file and a copy
of this remand must be made available to
and reviewed by the examiner prior to the
requested examination.  The examiner
should indicate in the report that the
claims file was reviewed.  All necessary
tests, including x-rays if indicated,
should be conducted and the examiner
should review the results of any testing
prior to completion of the report.

The examiner should identify all
residuals attributable to the veteran's
service-connected residuals of a muscle
injury of the right leg, Muscle Group XI,
to include any neurological, muscle, and
orthopedic residuals.

The examiner should specifically indicate
whether there are adhesions of the right
leg and if so, whether they are
associated with the veteran's service-
connected right leg muscle injury.  Is
there adhesion of the scar to the bone,
with epithelial sealing over the bone
rather than true skin covering in an area
where bone is normally protected by
muscle?

The examiner should note the range of
motion for the right lower extremity and
should state what is considered normal
range of motion.  Whether there is any
pain, weakened movement, excess
fatigability or incoordination on
movement should be noted, and whether
there is likely to be additional range
of motion loss due to any of the
following should be addressed: (1) pain
on use, including during flare-ups; (2)
weakened movement; (3) excess
fatigability; or (4) incoordination.
The examiner is asked to describe
whether pain significantly limits
functional ability during flare-ups or
when the right lower extremity is used
repeatedly.  All limitation of function
must be identified.   If there is no
pain, no limitation of motion and/or no
limitation of function, such facts must
be noted in the report.

The examiner should specifically discuss
the severity of any muscle impairment.
38 C.F.R. �� 4.56, 4.73 (2000).

The examiner must provide a comprehensive
report including complete rationales for
all conclusions reached.  If further
testing or examination by other
specialists is determined to be warranted
in order to evaluate the residuals of the
condition in issue, such testing or
examination is to be accomplished.

5.  Review the claims folder and ensure
that all of the foregoing development
actions have been conducted and completed
in full.  If any development is
incomplete, appropriate corrective action
is to be implemented.  Specific attention
is directed to the examination report.  If
the report does not include adequate
responses to the specific opinions
requested, the report must be returned for
corrective action.  38 C.F.R. � 4.2
(2000);  see also Stegall v. West, 11 Vet.
App. 268 (1998).

6.  Review the claims file and ensure that
no other notification or development
action, in addition to that directed
above, is required by the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-
475.  If further action is required,
undertake it before further adjudication
of the claim.

7.  Then, readjudicate the veteran's
claim, with application of all
appropriate laws and regulations and
consideration of any additional
information obtained as a result of this
remand.

8.  If the benefits sought on appeal
remain denied, the veteran and his
representative, if any, should be provided
a supplemental statement of the case
(SSOC).  An appropriate period of time
should be allowed for response.

Thereafter, subject to current appellate procedures, the
case should be returned to the Board for further appellate
consideration, if appropriate.  The appellant has the right
to submit additional evidence and argument on the matter
that the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999).  The
purposes of this REMAND are to obtain additional information
and comply with due process considerations.  No inference
should be drawn regarding the final disposition of this
claim as a result of this action.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West Supp. 2000) (Historical and
Statutory Notes).  In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.

	P.M. DILORENZO
	Acting Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims.  This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal.  38 C.F.R. � 20.1100(b) (2000).


judge_norm: STEPHEN L WILKINS

disposition: granted

text:
Citation Nr: 0118001
Decision Date: 07/10/01    Archive Date: 07/16/01

DOCKET NO.  99-08 332A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina

THE ISSUES

1.  Entitlement to an increased rating for the service-
connected bilateral hearing loss, currently evaluated as 20
percent disabling.

2.  Entitlement to an increased rating for the service-
connected varicose veins of the left leg, currently evaluated
as 20 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Debbie A. Riffe, Counsel

INTRODUCTION

The veteran served on active duty from May 1942 to November
1945.

This case comes to the Board of Veterans' Appeals (Board)
from a June 1997 RO decision which denied an increase in the
20 percent rating assigned for the service-connected
bilateral hearing loss.

This case also comes to the Board from a November 1997 RO
decision which denied an increase in the 20 percent rating
assigned for the service-connected varicose veins of the left
leg.

In February 2001, the veteran testified at a hearing at the
RO before the undersigned Member of the Board.

FINDINGS OF FACT

1.  The veteran's service-connected bilateral hearing loss is
shown to be manifested by auditory acuity of level IV in the
right ear and level VII in the left ear.

2.  Prior to January 12, 1998, the veteran's service-
connected varicose veins of the left leg is shown to have
been manifested by varicosities below the knee with
tenderness, pain, edema, cellulitis and stasis dermatitis;
there was no medical evidence of vein involvement above the
knee, marked distortion and sacculation, or episodes of
ulceration.

3.  Beginning on January 12, 1998, (the effective date of new
criteria for rating cardiovascular disabilities), the
veteran's service-connected varicose veins of the left leg is
shown to have been manifested by persistent edema and stasis
pigmentation; there is no medical evidence of persistent
ulceration.

CONCLUSIONS OF LAW

1.  The criteria for the assignment of a rating in excess of
20 percent for the service-connected bilateral hearing loss
have not been met.  38 U.S.C.A. �� 1155, 5107, 7104 (West
1991 & Supp. 2000); 38 C.F.R. � 4.85 including Diagnostic
Code 6102 (1998 and 2000).

2.  The criteria for the assignment of a rating in excess of
20 percent for the service-connected varicose veins of the
left leg have not been met prior to January 12, 1998;
effective on and after January 12, 1998, the criteria for the
assignment of a 40 percent rating for the service-connected
varicose veins of the left leg have been met.  38 U.S.C.A.
�� 1155, 5107, 7104 (West 1991 & Supp. 2000); 38 C.F.R.
�� 4.7, 4.104 including Diagnostic Code 7120 (1997 and 2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual Background

The veteran served on active duty from May 1942 to November
1945.  A careful review of the service medical records shows
that, after suffering from varicose veins for a year, the
veteran underwent ligation of the saphenous vein in the
popliteal space just above the left knee posteriorly in April
1943.  He experienced initial relief from symptoms of aching
and swelling.  His symptoms then recurred once he began
hiking again, and he was diagnosed with moderate varicose
veins of the left leg.

In October 1944, the veteran sustained a concussion of his
left ear from a shell blast and was hospitalized with
defective hearing.  A November 1945 physical examination for
separation purposes notes the veteran had impaired hearing.

In a March 1947 decision, the RO granted service connection
and assigned a no percent rating for a postoperative scar of
the left popliteal space with ligation of the saphenous vein
and for a ruptured left ear drum from concussion.

In a May 1954 decision, the RO increased, to 10 percent, the
rating for service-connected hearing loss (formerly
characterized as ruptured ear drum from concussion).  In a
June 1960 decision, the RO reduced, to no percent, the rating
for service-connected bilateral hearing loss (to become
effective in August 1960).

Also in the June 1960 decision, the RO recharacterized the
service-connected postoperative scar of the left popliteal
space, holding the veteran should be service-connected
instead for varicose veins of the left leg with postoperative
scar.

In an October 1971 decision, the RO increased, to 20 percent,
the rating for the service-connected varicose veins of the
left leg (effective in July 1971).

In a November 1971 decision, the RO increased, to 10 percent,
the rating for the service-connected bilateral hearing loss.
Then, in a March 1981 decision, the RO increased, to 20
percent, the rating for the service-connected bilateral
hearing loss (effective in January 1980).

The medical records from Miracle Ear, dated in October 1991,
relate the veteran's reports that he had difficulty
understanding the words people spoke, that he had difficulty
understanding in a large crowd and conversation in a car, and
that he had to turn the radio or television up louder than
normal.  He underwent audiometric testing which showed
reduced hearing in both ears.  The speech discrimination
scores were 84 percent in the right ear and 60 percent in the
left ear (binaurally, it was 92 percent).

The submitted private medical records show that, in November
1995, the veteran complained of having swelling in his left
lower extremity.  He reported he had had this before and had
marked venous insufficiency.  It was noted that he wore long
leg support hose.  An examination revealed edema of venous
insufficiency.  There was a negative Homans' sign (i.e., no
sign of thrombosis of deep calf veins) and no evidence of
overlying phlebitis.  The doctor recommended elevation of the
lower extremity and warm compresses.

Other medical records from Miracle Ear, dated in May 1996,
relate the veteran's reports that he had a pair of hearing
aids that were no longer strong enough for him.  He underwent
audiometric testing which showed reduced hearing in both
ears.  The speech discrimination scores were 80 percent in
the right ear and 56 percent in the left ear (binaurally, it
was 88 percent).

In February 1997, the RO received the veteran's claim for an
increased rating for the service-connected bilateral hearing
loss.

At a June 1997 VA audiologic examination, audiometric testing
indicated the following pure tone thresholds, in decibels, at
500, 1,000, 2,000, 3,000, and 4,000 Hertz:  35, 45, 80, 105+,
and 105+ (the average for the last four frequencies is 84+)
in the right ear; and 45, 50, 85, 95, and 100 (the average
for the last four frequencies is 83) in the left ear.  The
speech recognition scores, using the Maryland CNC Word List,
were 80 percent in the right ear and 84 percent in the left
ear.

The diagnoses were those of mild to profound sensorineural
hearing loss in the right ear and moderate to profound
sensorineural hearing loss in the left ear.

A June 1997 VA outpatient record indicates that the veteran
complained of swelling in the left leg.  He reported having a
history of phlebitis of the leg and polycythemia.  An
examination revealed varicosities in the left lower leg,
slight tenderness and good pulses.  The diagnostic
impressions were those of chronic venous insufficiency and
polycythemia.

In June 1997, the RO received the veteran's claim for an
increased rating for the service-connected varicose veins of
the left leg.

In a June 1997 decision, the RO denied his claim for an
increase in the 20 percent rating for the service-connected
bilateral hearing loss.

On a July 1997 VA examination, the veteran reported that,
five years previously, he had developed a blood clot in his
left leg and was hospitalized and given medication to
dissolve the clot.  He reported that he continued to have
trouble with swelling of the left leg and discomfort in the
calf area.  He related that his swelling disappeared
overnight.  He noted taking daily medications of Coumadin (an
anticoagulant) and Zestril (for blood pressure control).  He
presently complained of having discomfort and swelling of the
left lower leg, particularly after prolonged standing or
walking.  The examiner noted that the veteran had significant
memory impairment and was uncertain about dates,
hospitalizations, and other medications.

On VA examination, the scars in the left popliteal space were
difficult to identify but believed to be two transverse scars
representing the site of previous vein surgery.  There were
matted, palpable varicosities that extended into the left
lower leg and ankle.  There was stasis dermatitis from about
the mid-leg into the ankle.  There were no ulcerations or
denuded skin.  Pedal pulses were present.  The diagnoses were
those of varicose veins of the left leg with previous venous
surgery in the left popliteal space for varicosities, stasis
dermatitis of the left leg, and venous thrombosis of the left
leg requiring hospitalization and anticoagulant therapy in
about 1992.

An August 1997 medical record from Union Regional Medical
Center indicates that the veteran was seen in the emergency
room with a complaint of having a swollen left leg that was
painful.  In a review of his systems, the veteran reported
that he had had persistent swelling and disability of the
left lower leg ever since surgery was performed on varicose
veins in service.  He also reported that he had a history of
a blood clot in his leg five years previously and had since
taken Coumadin.

An examination revealed findings of discoloration and chronic
changes in the left lower leg.  There was diffuse redness,
pitting edema of 3+ in the left foot and to a lesser extent
the ankle, pain in the left calf on forced dorsiflexion of
the ankle, and slight calf tenderness.  A Doppler venography
of the left lower leg was negative (i.e., no evidence of deep
venous thrombosis).  The impressions were those of leg pain,
superficial phlebitis, and cellulitis.  The veteran was
released from the hospital with medication and advised to
elevate his foot and to follow up with his doctor the next
day.

An August 1997 private medical record indicates that the
veteran was seen the previous evening in the emergency room.
An examination was consistent with a mild cellulitis of the
left lower leg and foot (the doctor stated the examination
was not "all that striking").  The veteran was to continue
on his same medications.

A September 1997 private medical record indicates the veteran
was recently seen in the emergency room with swelling of the
left lower extremity which the veteran said was worse than
usual.  It was noted that his diagnoses included those of
polycythemia, chronic venous insufficiency, and post-
phlebitic syndrome of the left lower extremity.  An
examination revealed pedal edema of the left lower extremity,
which was about 2+ to 3.  It was noted the veteran wore
support stockings.

VA outpatient records show that, in September 1997, the
veteran was seen with a request for batteries for a self-
purchased hearing aid.  It was noted that he had previously
had two aids issued by the VA in 1972 and 1974.  He was
informed he was eligible for batteries for VA-issued hearing
aids only.

In a September 1997 statement, the veteran expressed his
disagreement with the RO's decision denying an increased
rating for bilateral hearing loss.

In a letter received by the RO in September 1997, the veteran
stated that he wore hearing aids in both ears and required
the use of a full support stocking (extending to the hip
area) for circulatory problems which he said had resulted in
blood clots in the past.

In a November 1997 decision, the RO denied the claim for an
increase in the 20 percent rating for the service-connected
varicose veins of the left leg.

In a December 1997 statement, the veteran expressed his
disagreement with the RO's decision denying an increased
rating for varicose veins of the left leg.  He claimed edema
had been present on several occasions and that slight bumps
on his leg easily resulted in ulcerations.  (In support of
such claims, he submitted an emergency room report from Union
Regional Memorial Hospital.)

In a November 1997 letter, the veteran stated that he was
submitting additional medical records pertaining to his
hearing loss and the circulatory problems in his left leg.
He noted that he had been denied an increased rating despite
the fact that stronger hearing aids had been made for him.
He added that he continued to have problems with pain and
swelling in his left leg.  (He submitted private medical
records dated from 1995 to 1998.)

The VA outpatient records show that, in November 1997, the
veteran was seen for a hearing aid assessment.  In February
1998, he was fitted with custom hearing aids in both ears.
In April 1998, he reported that he could not hear like he
should with his hearing aids.  In June 1998, he was seen for
a hearing aid assessment for the purpose of a hearing aid
remake (ear mold impressions were taken for both ears and a
stronger circuit was ordered).

Other medical records from Miracle Ear, dated in October
1998, relate the veteran's report that he wore two hearing
aids.  He underwent audiometric testing which showed reduced
hearing in both ears.  The speech discrimination scores were
60 percent in the right ear and 68 percent in the left ear
(binaurally, it was 76 percent).

An October 1998 VA outpatient record shows that the veteran
was fitted with (larger) custom hearing aids in both ears and
that he responded positively to the new hearing aid
arrangement.

On a November 1998 VA Form 9 (Appeal to the Board of
Veterans' Appeals), the veteran stated that he was providing
additional medical documentation in regard to his appeal for
an increased rating for varicose veins of the left leg.
(Private medical records concerning treatment for edema of
the left lower leg were received.)

On a VA Form 9 (Appeal to the Board of Veterans' Appeals),
received in May 1999, the veteran requested a VA examination
in regard to his appeal for an increased rating for bilateral
hearing loss.

On a May 1999 VA audiologic examination, the veteran
complained of having a hearing loss since service and
reported having a general difficulty understanding what
people said.  Audiometric testing indicated the following
pure tone thresholds, in decibels, at 500, 1,000, 2,000,
3,000, and 4,000 Hertz:  40, 45, 85, 105+, and 105+ (the
average for the last four frequencies is 85+) in the right
ear; and 55, 50, 90, 95, and 95 (the average for the last
four frequencies is 83) in the left ear.  The speech
recognition scores, using the Maryland CNC Word List, were 84
percent in the right ear and 72 percent in the left ear.

The diagnoses were those of mild to profound sensorineural
hearing loss in the right ear and moderate to profound
sensorineural hearing loss in the left ear.

In statements received by the RO in May 1999 and November
1999, the veteran indicated, in regard to Supplemental
Statements of the Case mailed to him in April 1999 and July
1999, that he did not have any additional evidence to add to
his file.

At a February hearing before the undersigned Member of the
Board, the veteran testified that his service-connected
hearing loss and varicose vein conditions were more severe
than the current 20 percent ratings indicated.  In regard to
the hearing loss, the veteran stated that he had difficulty
when talking on the telephone or listening to the television
or radio; that he had received from the VA "more heavy
duty" hearing aids which worked better for him; that despite
his stronger hearing aids he still had to ask people to
repeat themselves; and that it seemed to him that his hearing
had become progressively worse each year.

In regard to the varicose veins of the left leg, the veteran
testified that his varicose veins were located below the
knee; that he required the use of a heavy support for the
full length of his leg, which he stated held down the
swelling of his leg somewhat; that he was unable to get out
much or exert himself due to swelling of the leg which then
caused pain; that all his private doctor advised him to do
for his leg was to elevate it until the swelling reduced
(which he said could take a day or so or overnight); that he
had significant discoloration and scarring of the leg (he
later showed his leg to the Board member); that episodes of
swelling occurred more frequently in the summer than in the
winter because he was more active then; that he tried to stay
off his feet as much as possible; that his doctor authorized
a handicap access tag for his car so that he could park close
to his destinations; and that his skin sometimes became
"raw" and ruptured and that it weeped a little bit at times
(he said he never applied salve to his skin).

II.  Analysis

The veteran claims that increased ratings are warranted for
his service-connected bilateral hearing loss and varicose
veins of the left leg.  The claims file shows that, through
its discussions in the rating decisions, Statements of the
Case, and Supplemental Statements of the Case, the RO has
notified him of the evidence needed to substantiate his
claims.  The veteran has identified all health care providers
who have rendered recent treatment for his service-connected
disabilities on appeal and has submitted numerous private
treatment records himself.  Furthermore, the RO has afforded
the veteran the opportunity for a personal hearing (which was
held in February 2001) and provided him with VA examinations
(in 1997 and 1999).

The Board is unaware of any additional evidence which is
available in connection with this appeal.  Accordingly, the
Board is satisfied that all relevant evidence has been
properly developed and that no further assistance is required
that could comply with the duty to assist.  Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000).

When rating the veteran's service-connected disabilities, the
entire medical history must be borne in mind.  Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).  However, the present
level of disability is of primary concern in a claim for an
increased rating; the more recent evidence is generally the
most relevant in such a claim, as it provides the most
accurate picture of the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55 (1994).

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

A.  Bilateral Hearing Loss

The veteran's service-connected bilateral hearing loss is
currently evaluated as 20 percent disabling (and has been 20
percent disabling effective since January 1980 and is
therefore "protected" from reduction, see 38 U.S.C.A. �
110).

Since the RO's rating decision in June 1997, the regulations
pertaining to rating hearing loss were revised effective on
June 10, 1999.  See 64 Fed.Reg. 25202 (1999).  However, given
the audiometric findings in the veteran's case, his service-
connected hearing loss is rated by the same method under both
the old and new regulations.  See 38 C.F.R. � 4.85 (1998 and
2000), � 4.86 (2000).

The evaluations of bilateral defective hearing range from
noncompensable to 100 percent and are based on organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination tests, together with the
average hearing threshold level as measured by pure tone
audiometry tests in the frequencies of 1,000, 2,000, 3,000,
and 4,000 Hertz.

To evaluate the degree of disability from service-connected
hearing loss, the rating schedule establishes eleven auditory
acuity levels, ranging from numeric level I for essentially
normal acuity to numeric level XI for profound deafness.  38
C.F.R. � 4.85; see Lendenmann v. Principi, 3 Vet. App. 345
(1992).

The most recent audiometric study of record was conducted by
the VA in May 1999 and includes test results (the average
decibel threshold for the four frequencies, plus speech
discrimination scores) which indicate the veteran has level
IV auditory acuity in the right ear and level VII auditory
acuity in the left ear.  See 38 C.F.R. � 4.85, Table VI.
These numeric designations in combination correspond to a 20
percent evaluation.  See 38 C.F.R. � 4.85, Table VII,
Diagnostic Code 6102.

In regard to other audiologic tests in the claims file, the
veteran underwent an earlier VA evaluation by the VA in June
1997, which indicates he had level V auditory acuity in the
right ear and level IV auditory acuity in the left ear.  Such
results demonstrate the veteran's hearing loss was less
severe than at present and correspond to a 10 percent
evaluation under Code 6101.

The submitted private audiometric tests were conducted in
October 1991, May 1996, and October 1998, and the results of
these tests showed hearing loss that was either as severe or
more severe than at present.  Such results are clearly
inconsistent with the VA audiologic evaluations.

However, the Board notes that, while the private testing
reports are considered, more weight must be afforded in this
case to the VA examination results for the sake of
consistency and uniformity in testing methods.  VA testing
methods must be the basis for determining appropriate ratings
under VA regulatory criteria for hearing loss because they
afford the veteran the most consistent ratings possible and
because they represent a more accurate reflection of the
level of the veteran's disability.  In view of this, the
Board concludes, based on the entire record, that a rating in
excess of 20 percent is not warranted.

The assignment of a disability rating for hearing impairment
is derived from a mechanical application of the rating
schedule to the specific numeric designations assigned after
audiometry evaluations are rendered.  See Lendenmann, supra.

In the instant case, the application of the rating schedule
to the test results demonstrates that no more than a 20
percent schedular rating is warranted.  Additionally, the
fact that the veteran may wear hearing aids does not affect
his rating, as the rating schedule makes a proper allowance
for improvement by hearing aids.  38 C.F.R. � 4.86 (1998),
� 4.85(a) (2000).

In sum, the Board finds that the preponderance of the
evidence is against the veteran's claim for a rating in
excess of 20 percent for service-connected bilateral hearing
loss.  Thus, the benefit-of-the-doubt rule does not apply,
and the claim must be denied.  38 U.S.C.A. � 5107(b); Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).

B.  Varicose Veins of the Left Leg

The veteran's service-connected varicose veins of the left
leg is currently evaluated as 20 percent disabling (and has
been 20 percent disabling effective since July 1971 and is
therefore "protected" from reduction, see 38 U.S.C.A. �
110).

During the course of the veteran's appeal, the regulations
pertaining to the cardiovascular system were revised.  The
veteran's service-connected disability was initially
evaluated under 38 C.F.R. � 4.104, Diagnostic Code 7120
(effective prior to January 12, 1998).

Under this Diagnostic Code, a 20 percent rating is warranted
for unilateral varicose veins that are moderately severe,
involving superficial veins above and below the knee, with
varicosities of the long saphenous, ranging in size from 1 to
2 cm. in diameter, with symptoms of pain or cramping on
exertion, and no involvement of the deep circulation.  A 40
percent rating is warranted for unilateral varicose veins
that are severe, involving superficial veins above and below
the knee, with involvement of the long saphenous, ranging
over 2 cm. in diameter, marked distortion and sacculation,
with edema and episodes of ulceration, and no involvement of
the deep circulation.  38 C.F.R. � 4.104, Code 7120 (1997).

On January 12, 1998, the rating criteria for varicose veins
were revised and are still found in 38 C.F.R. � 4.104,
Diagnostic Code 7120.  Under the revised Diagnostic Code, a
20 percent rating is warranted for varicose veins with
persistent edema, incompletely relieved by elevation of
extremity, with or without beginning stasis pigmentation or
eczema.

A 40 percent rating is warranted for varicose veins with
persistent edema and stasis pigmentation or eczema, with or
without intermittent ulceration.  A 60 percent rating is
warranted for varicose veins with persistent edema or
subcutaneous induration, stasis pigmentation or eczema, and
persistent ulceration.  A note following the code states that
these evaluations are for involvement of a single extremity.
38 C.F.R. � 4.104, Code 7120 (1999).

As the veteran's claim for an increased rating for varicose
veins of the left leg was pending when the regulations
pertaining to cardiovascular disabilities were revised, he is
entitled to the version of the law most favorable to him,
although the new criteria are only applicable to the period
of time after their effective date.  Karnas v. Derwinski, 1
Vet. App. 308 (1990); VAOPGCPREC 3-2000.

The record shows that the veteran was treated privately for
edema related to venous insufficiency in the left lower leg
in November 1995 (but there was no involvement of the deep
circulation).  He was treated on an outpatient basis by VA
for complaints of swelling of the left leg in June 1997, when
examination findings reflected varicosities and slight
tenderness.  The veteran was examined by the VA for
compensation purposes in July 1997.  He complained of having
swelling of the left lower leg, and clinical findings showed
palpable varicosities in the left lower leg extending into
the ankle and stasis dermatitis in that same area, but no
ulcerations or denuded skin.

The veteran was seen in a private emergency room for a
painful swollen left leg in August 1997, and an examination
showed discoloration in the left lower leg, diffuse redness,
pitting edema, and calf tenderness (but no evidence of deep
venous thrombosis on a Doppler study of the leg).  The
private medical evidence in August and September 1997
reflected cellulitis and pedal edema of the left lower
extremity.  At his hearing in 2001, he testified that his
varicose vein condition was localized below the knee, that
exertion caused swelling of his left lower extremity, and
that significant discoloration and scarring of his leg
persisted.

Considering all the evidence and the old rating criteria of
Diagnostic Code 7120, the Board finds that no more than a 20
percent evaluation is reflected in the objective
manifestations of the veteran's left leg varicose vein
condition.  Significantly, there is no medical or other
evidence that his varicose veins are severe and involve veins
above and below the knee.  All recent medical treatment
sought for his disability reflects that his condition
involves varicose veins solely below the knee and not also
above the knee.  Moreover, there is no medical evidence
showing that the veteran had marked distortion and
sacculation or episodes of ulceration.  In short, the
disability picture does not meet the criteria for the
assignment of a rating higher than 20 percent under the old
Code 7120.

However, in considering all the evidence and the new rating
criteria of Diagnostic Code 7120, the Board finds that a 40
percent evaluation is warranted for the veteran's service-
connected varicose veins of the left leg, beginning on
January 12, 1998, the date that the new criteria for rating
cardiovascular disabilities became effective.

As previously noted, the new criteria are only applicable to
the period of time after their effective date.  A review of
the evidence shows the veteran has established a record for
persistent edema and stasis pigmentation, and such findings
meet the criteria for a 40 percent rating under the new
Diagnostic Code 7120.

However, the veteran's disability picture does not meet the
criteria for a 60 percent rating under new Diagnostic Code
7120 because there is no evidence of persistent ulceration
which is required under the code.

In sum, insofar as the evidence supports the veteran's claim
for a 40 percent rating under new Diagnostic Code 7120
effective on January 12, 1998 (the date that the new criteria
for rating cardiovascular disabilities became effective), the
claim for increase to this extent is granted.

Prior to January 12, 1998, when only the criteria from the
old Diagnostic Code 7120 were applicable, the evidence shows
the veteran's varicose veins of the left leg were no more
than 20 percent disabling.

ORDER

An increased rating for the service-connected bilateral
hearing loss is denied.

An increased rating higher than 20 percent for the service-
connected varicose veins of the left leg prior to January 12,
1998 is denied.

The service-connected varicose veins of the left leg are
assigned a 40 percent rating on and after January 12, 1998;
to this extent, an increase rating is granted, subject to the
regulations controlling disbursement of VA monetary benefits.

	STEPHEN L. WILKINS
	Member, Board of Veterans' Appeals


judge_norm: ANDREW J MULLEN

benefit: education

text:
Citation Nr: 0201000
Decision Date: 01/30/02    Archive Date: 02/05/02

DOCKET NO.  01-02 658	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an extension of the veteran's delimiting date
for receiving educational assistance benefits under Chapter
34, Title 38, United States Code.

WITNESSES AT HEARING ON APPEAL

The veteran and C.C.

ATTORNEY FOR THE BOARD

M.S. Lane, Associate Counsel

INTRODUCTION

The veteran served on active duty from September 1975 to
August 1976.

This appeal arises from a decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Buffalo, New
York, which determined that the veteran was not entitled to
an extension of his eligibility for education benefits under
Chapter 34, Title 38, United States Code.  He subsequently
perfected a timely appeal regarding that decision.  During
the pendency of this appeal, jurisdiction over the matter was
temporarily transferred to the RO in Philadelphia,
Pennsylvania.  However, the Buffalo RO retains permanent
jurisdiction over this case.

In November 2001, the veteran presented testimony at a
personal hearing before the undersigned Member of the Board,
at the Philadelphia RO.  A transcript of the hearing has been
prepared and associated with the claims folder.   During this
hearing, the veteran presented additional documentary
evidence, which was accompanied by a waiver of initial RO
consideration.  This evidence has also been associated with
the claims folder.

During his personal hearing, the veteran indicated that he
also wished to pursue a claim of entitlement to service
connection for depression.  As this issue has not yet been
addressed, it is referred to the RO for appropriate action.

FINDINGS OF FACT

1.  The veteran had active service from September 26, 1975,
through August 19, 1976.

2.  The veteran's delimiting date for receipt of Chapter 34
educational assistance benefits was August 20, 1986.

3.  The entire Chapter 34 educational benefits program
expired, by operation of law, on December 31, 1989.

4.  The veteran filed an application for entitlement to
Chapter 34 educational benefits in June 2000.

CONCLUSION OF LAW

There is no basis in law for the payment of educational
assistance benefits under Chapter 34, Title 38, United States
Code, after December 31, 1989.  38 U.S.C.A. � 3462(e) (West
1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary matter-VCAA

At the outset, the Board will address the Veterans Claims
Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114
Stat. 2096 (2000), which contains extensive provisions
modifying procedures for the adjudication of all pending
claims.  See generally Holliday v. Principi, 14 Vet. App. 280
(2001); Karnas v. Derwinski, 1 Vet. App. 308 (1991).  The new
statute repealed the former requirement that a claimant come
forward first with evidence to well ground a claim before the
Secretary of Veterans Affairs is obligated to assist the
claimant in developing the facts pertinent to the claim.  The
VCAA also enhanced VA's obligations to notify claimants of
any information and/or evidence which might be needed in
their claims, and to assist claimants in obtaining such
evidence, unless no reasonable possibility exists that such
assistance would aid in substantiating the claim.

VA has published regulations to implement many of the
provisions of the VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. �� 3.102,
3.156(a), 3.159, and 3.326(a)).  These new regulations, which
in pertinent part are effective as of the date of enactment
of the VCAA, interpret and implement the mandates of the
statute, "and do not provide any rights other than those
provided by the VCAA."  66 Fed. Reg. 45,629.

The Board finds that the requirements of the VCAA and the
implementing regulations have been satisfied in this matter.
Unlike many questions subject to appellate review, the
veteran's claim of entitlement to an extension of his
delimiting date for receiving education assistance benefits
under Chapter 34, by its very nature, has an extremely narrow
focus.  The RO, in the SOC issued in January 2001, has set
forth the law and facts in a fashion that clearly and
adequately explained the basis of its decision.  The veteran
has neither submitted nor made reference to any additional
records which could tend to substantiate his claim.  It
appears clear, therefore, that there are no outstanding
records or other evidence that could substantiate the claim.

Furthermore, VA is not required to provide assistance to a
claimant if no reasonable possibility exists that such
assistance would aid in substantiating the claim.  38
U.S.C.A. � 5103A(a) (West Supp. 2001); see also Wensch v.
Principi, No. 99-2210, slip op. at 8 (U.S. Vet. App. Dec. 20,
2001).  As will be discussed in greater detail below, there
is no legal basis for payment of educational assistance
benefits under Chapter 34, Title 38, United States Code,
after December 31, 1989.  Thus, even if every effort were
taken to assist the veteran, there would remain no reasonable
possibility that such assistance would aid in substantiating
his claim.  Given the circumstances of this matter, the Board
cannot find any basis under the VCAA to defer appellate
review.

Accordingly, the Board finds that we may proceed to decide
this matter without prejudice to the claimant.  See Bernard
v. Brown, 4 Vet. App. 384 (1993).  Moreover, we find that VA
has satisfied its duty to assist the appellant in apprising
him as to the evidence needed, and in obtaining evidence
pertaining to him claim, under both former law and the new
VCAA.  38 U.S.C.A. � 5107(a) (1991); 38 U.S.C.A. �� 5103,
5103A (West Supp. 2001).  The Board therefore finds that no
useful purpose would be served in remanding this matter for
yet more development.  Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
benefit flowing to the appellant.  The Court of Appeals for
Veterans Claims has held that such remands are to be avoided.
See Winters v. West, 12 Vet. App. 203 (1999) (en banc),
vacated on other grounds sub nom. Winters v. Gober, 219 F.3d
1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
In fact, the Court has stated, "The VCAA is a reason to
remand many, many claims, but it is not an excuse to remand
all claims."  Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc).

Analysis

The record reflects that the veteran served on active duty
from September 26, 1975, through August 19, 1976.  He filed
an application for Chapter 34 education benefits in June
2000.  He essentially contends that he was unable to initiate
or complete his education prior to 1989 because he was
suffering from chronic alcoholism and substance abuse, which
was reportedly brought on by mental illness.

Based upon his active service through August 19, 1976, the
veteran was formerly eligible to receive Chapter 34
educational assistance benefits, provided that he availed
himself of such benefits before August 20, 1986 (i.e., 10
years following his separation from active military service).
38 U.S.C.A. �� 3461, 3462 (West 1991).  Such benefits were
available at a rate of one and one-half months for each
month, or fraction thereof, of active service during the
period from January 31, 1955, through December 31, 1976.

However, the entire Chapter 34 program expired as of December
31, 1989, and payments of educational assistance benefits
under Chapter 34 are therefore prohibited after that date.
38 U.S.C.A. � 3462(e); 38 C.F.R. � 21.1042(a)(2) (as in
effect prior to May 24, 1996).  In that regard, as of May 24,
1996, the federal regulations dealing with the administration
of the Chapter 34 program (38 C.F.R. �� 21.1020-21.1025 and
�� 21.1040-21.1045) were rescinded, as they no longer had any
legal effect because Chapter 34 benefits could not be
authorized for education or training after December 31, 1989.
See 61 Fed. Reg. 26,107-08 (May 24, 1996).  Thus, because
there is no statutory or regulatory provision that would
permit payment of educational assistance benefits under
Chapter 34 beyond December 31, 1989, the Board finds that the
veteran's claim for an extension of the delimiting date for
such benefits must be denied as a matter of law.

The Board notes that, under 38 U.S.C.A. � 3462(a)(1), an
extension of the ten-year period (or the delimiting date)
under the Chapter 34 program was available if the veteran was
prevented from initiating or completing his chosen program
within such time period because of a physical or mental
disability which was not the result of his own willful
misconduct.  The length of the extension period would be the
time the Secretary determines that the veteran was prevented
from pursuing his education.  38 U.S.C.A. � 3462.  However,
as discussed above, 38 U.S.C.A. � 3462(e) provides that no
educational assistance shall be afforded any eligible veteran
under Chapter 34 after December 31, 1989.  Accordingly, the
Board finds that Chapter 34 benefits can no longer be paid
based upon an extension of the delimiting date pursuant to 38
U.S.C.A. � 3462(a)(1).

In summary, the Board finds that there is no statutory or
regulatory provision that would permit entitlement to
educational assistance benefits under Chapter 34, Title 38,
United States Code, beyond December 31, 1989.  In cases such
as this, where the law, and not the evidence, is dispositive,
the claim should be denied because of the lack of legal
merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board appreciates the veteran's effort and his sincerity
in testifying at the Travel Board hearing before the
undersigned.  However, in view of the foregoing, the Board
concludes that the veteran's claim of entitlement to
educational assistance benefits under Chapter 34, Title 38,
United States Code, lacks legal merit under the law and must
be denied.

ORDER

The claim of entitlement to an extension of the veteran's
delimiting date for receiving educational assistance benefits
under Chapter 34, Title 38, United States Code, is denied.

	ANDREW J. MULLEN
	Member, Board of Veterans' Appeals

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

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.

? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


judge_norm: U R POWELL

condition: knee

text:
Citation Nr: 0202000
Decision Date: 02/28/02    Archive Date: 03/05/02

DOCKET NO.  00-19 011	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for the
residuals of a shell fragment wound of the left knee.

(The issue of de novo consideration of entitlement to service
connection for the residuals of a shell fragment wound of the
left knee will be the subject of a later decision.)

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel

INTRODUCTION

The veteran served on active duty from March 1968 to
March 1971.  His awards and decorations include the Silver
Star Medal, the Purple Heart Medal (second award), and the
Combat Infantryman Badge.

This matter came to the Board of Veterans' Appeals (Board) on
appeal from a June 2000 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio.

In October 2001, the veteran had a video conference hearing
with the undersigned member of the Board.

The Board is undertaking additional development on the issue
of de novo consideration of entitlement to service connection
for residuals of a shell fragment wound of the left knee
pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104
(Jan. 23, 2002) (to be codified at 38 C.F.R. � 19.9(a)(2)).
When it is completed, the Board will provide notice of the
development as required by Rule of Practice 903.  (67 Fed.
Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at 38
C.F.R. � 20.903).  After giving the notice and reviewing your
response to the notice, the Board will prepare a separate
decision addressing this issue.

FINDINGS OF FACT

1.  The veteran did not appeal a January 1974 rating action
in which the RO denied entitlement to service connection for
the residuals of a shell fragment wound of the left knee.

2.  Evidence received since the RO's January 1974 rating
action is neither cumulative nor duplicative of that on file
at the time of the decision and is so significant, by itself
or in connection with evidence previously assembled, that it
must be considered in order to fairly decide the merits of
the claim of entitlement to service connection for the
residuals of a shell fragment wound of the left knee.

CONCLUSIONS OF LAW

1.  The RO's January 1974 decision, which denied entitlement
to service connection for the residuals of a shell fragment
wound of the left knee, is final.  38 U.S.C.A. � 4005 (1970);
38 C.F.R. � 19.153 (1973).

2.  The evidence received since the RO's January 1974
decision is new and material for the purpose of reopening the
veteran's claim of entitlement to service connection for the
residuals of a shell fragment wound of the left knee.
38 U.S.C.A. � 5108 (West 1991); 38 C.F.R. � 3.156(a) (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran seeks entitlement to service connection for the
residuals of a shell fragment wound of the left knee.  A
review of the record discloses that this is not his first
such claim.  In January 1974, the RO denied entitlement to
service connection for such disability.  Evidence on file at
that time consisted of the veteran's service medical records
and reports of VA examinations performed in May 1971 and
September 1973.  Such records were negative for any evidence
of a shell fragment wound of the left knee in service or for
any residual disability in or after service.  Based thereon,
the RO declined to grant service connection.  The veteran was
notified of that decision, as well as his appellate rights;
however, a notice of disagreement was not received with which
to initiate an appeal.  Accordingly, that decision became
final.  38 U.S.C.A. � 4005; 38 C.F.R. � 19.153.  The veteran
now requests that such claim be reopened.

Generally, a claim which has been denied by the RO may not
thereafter be reopened and allowed, and a claim based upon
the same factual basis may not be considered.  38 U.S.C.A.
� 7105 (West 1991).  The exception to this rule is
38 U.S.C.A. � 5108 which provides that if new and material
evidence is presented or secured with respect to a claim
which has been disallowed, the VA shall reopen the claim and
review the former disposition of the claim.

When a veteran seeks to reopen a final decision based on new
and material evidence, the Board must first determine whether
the veteran has, in fact, presented new and material evidence
under 38 C.F.R. � 3.156.  New and material evidence is
evidence not previously submitted to agency decisionmakers,
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. � 3.156(a).

If new and material evidence has been presented, the Board
may then proceed to evaluate the merits of the claim but only
after insuring that the duty to assist the veteran in the
development of his claim has been fulfilled.  See, Elkins v.
West, 12 Vet. App. 209 (1999).

During the pendency of this appeal, there was a significant
change in the law.  On November 9, 2000, the President signed
into law the Veterans Claims Assistance Act of 2000 (VCAA),
Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as
amended at 38 U.S.C.A. � 5100 et seq. (West Supp. 2001)).
That law redefined the obligations of the VA with respect to
the duty to assist and included an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.  38 U.S.C.A. �� 5102,
5103, 5103A.  That law also eliminated the concept of a well-
grounded claim and superseded the decision of the United
States Court of Appeals for Veterans Claims in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that the VA cannot assist in the
development of a claim that is not well grounded.
38 U.S.C.A. � 5107.  That change in the law is applicable to
all claims filed on or after the date of enactment of the
VCAA, or filed before the date of enactment and not yet final
as of that date.  VCAA, Pub. L. No. 106-475, � 7, sub part
(a), 114 Stat. 2096, 2099-2100 (2000).  In March 2001, the RO
notified the veteran of the enactment of the VCAA and of the
potential impact on his claim.

In August 2001, the VA published final rules implementing the
VCAA, including changes with respect to the definition of new
and material evidence and the development of associated
cases.  66 Fed. Reg. 45620 (August 29, 2001) (to be codified
as amended at 38 C.F.R. �� 3.102, 3.156, 3.159, and
3.326(a)).  The changes with respect to new and material
evidence, however, are only effective for claims filed on or
after August 29, 2001.  66 Fed. Reg. 45620, 45630-32
(August 29, 2001) (to be codified as amended at 38 C.F.R.
�� 3.156(a), 3.159(c)).  Inasmuch as the veteran's appeal was
filed before that date, the changes with respect to new and
material evidence are not applicable in this case.

Evidence added to the record since the RO's rating decision
in January 1974 includes a statement from a former fellow
serviceman who reportedly witnessed the veteran's shell
fragment wound of the left knee.  He notes that it was
incurred in April 1970 in an action for which the veteran
received the Silver Star Medal.  A Department of the Army
document entitled "Award of the Silver Star," dated August 1,
1970, is of record.  That document reflects the veteran was
awarded the Silver Star for service on April 29, 1970 in
Vietnam when "wounded by hostile fire."  The Board notes that
the veteran also received the Purple Heart Medal, on two
occasions, including on April 29, 1970.  The record does not
show the location of the injuries sustained in April 1970 for
which he received the Silver Star and Purple Heart.  Although
there is no official record of a shell fragment wound of the
left knee, the additional evidence is consistent with the
circumstances, conditions, and hardships of the veteran's
distinguished combat service.  As such, it is sufficient to
verify that the veteran did, in fact, sustain the alleged
wound in service.  38 U.S.C.A. � 1154(b) (West 1991);
38 C.F.R. � 3.304(d) (2001).  At the very least, it places
the evidence in equipoise with respect to the question of
whether he sustained a shell fragment wound of the left knee
in service.  Under such circumstances, all reasonable doubt
is resolved in favor of the veteran.  38 U.S.C.A. � 5107(b)
(West 1991 and Supp. 2001).  Accordingly, the Board concludes
that the veteran did sustain a shell fragment wound to the
left knee in service.  The claim for service connection is
reopened.

ORDER

New and material evidence having been received, the appeal to
reopen the claim of entitlement to service connection for the
residuals of a shell fragment wound of the left knee is
granted.

	U. R. Powell
	Member, Board of Veterans' Appeals

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

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