judge_norm: GARY L GICK

benefit: tdiu

text:
Citation Nr: 0024000
Decision Date: 09/11/00    Archive Date: 09/21/00

DOCKET NO.  99-07 082	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona

THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for
the residuals of fracture of the lateral malleolus of the
left ankle.

2.  Entitlement to a total disability rating based upon
individual unemployability due to service-connected
disability.

ATTORNEY FOR THE BOARD

Stephen F. Sylvester, Counsel

INTRODUCTION

The veteran served on active duty from April 1972 to May
1973, and on active duty for training from March to July
1991.

FINDINGS OF FACT

1.  The veteran's service-connected residuals of fracture of
the lateral malleolus of the left ankle are currently
productive of no more than slight ankle disability,
characterized by a functional loss due to pain.

2.  The veteran's sole service-connected disability,
consisting of the residuals of fracture of the lateral
malleolus of the left ankle, when taken in conjunction with
his education and occupational experience, is insufficient to
preclude substantially gainful employment.

CONCLUSIONS OF LAW

1.  An evaluation in excess of 10 percent for the
service-connected residuals of fracture of the lateral
malleolus of the left ankle is not warranted.  38 U.S.C.A.
� 1155 (West 1991 & Supp. 2000); 38 C.F.R. �� 4.40, 4.59, and
Part 4, Code 5262 5271 (1999).

2.  The veteran's service-connected disabilities do not
render him individually unemployable.  38 U.S.C.A. � 1155
(West 1991 & Supp. 2000); 38 C.F.R. �� 3.321, 3.340, 3.341,
4.16 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

On Department of Veterans Affairs (VA) orthopedic examination
in February 1996, the veteran stated that, in 1972, he
incurred a fracture of his left ankle.  Reportedly, over the
ensuing years since that fracture, he had experienced
increasing pain and dysfunction, in particular, in his
employment as a bricklayer.  The veteran stated that his
ability to do prolonged standing, walking, kneeling,
squatting, and stair climbing was impaired as a result of his
left ankle.  The veteran had not, however, received any
recent medical attention for his left ankle.

On physical examination, the veteran was unable to hop on his
left foot.  He experienced pain when attempting to toe walk,
but could both heel walk, and squat and rise.  There was a
full range of motion of the left ankle and subtalar joint on
the left, with no tenderness, but some pain on motion.  At
the time of evaluation, the veteran complained of "constant
left ankle pain."  Radiographic studies of the veteran's left
ankle revealed a possible old fracture of the distal end of
the fibula, the precise location of which was not identified.
The pertinent diagnosis was residuals of fracture of the left
ankle.

On more recent VA orthopedic examination in late June 1998,
the veteran's claims folder was available, and reviewed.
This review included the veteran's recorded history as
described by a prior physician on a VA Compensation and
Pension examination in February 1996.  At the time of
evaluation, the veteran indicated that the "only thing" which
was different was that he currently found it necessary to
wear steel-toed shoes, which made it somewhat more difficult
for him to be comfortable while working as a bricklayer.
Further review of the veteran's claims file showed that, at
the time of a consultation in January 1975, the veteran
stated that he had broken his left ankle in a fall on a
concrete step in 1972.  Examination of the veteran's left
ankle conducted at that time was, apparently, "completely
within normal limits."  The veteran stated that, at the time
of his injury, he was treated "with a cast."  Additionally
noted was that, while over the ensuing years, the veteran had
experienced pain and intermittent problems with his left
ankle, he had received no medical treatment.  The veteran's
subjective complaints included swelling of his left ankle, as
well as local outer ankle pain, and calf spasms.  The veteran
reported that he experienced intermittent cold sensitivity in
his lower leg and foot, and that his whole lower ankle area
and foot periodically "went icy cold."  According to the
veteran, this occurred approximately four to five times per
year, and lasted for approximately five minutes.  As the
result of this "incapacitating pain," the veteran reportedly
tended to abuse alcohol.  The veteran stated that he had a
corn on the fifth toe of his left foot, which he felt was
secondary to his old ankle fracture.  Additionally noted was
a complaint of numbness in a stocking/glove distribution from
just above the malleoli, circumferentially down to the toes.

On physical examination, the veteran walked into the
examination room with a normal-appearing gait.  Heel/toe walk
was normal to the examiner's observation, and tape
measurements of both calves, ankles, and instep were equal
bilaterally.  Dorsiflexion and plantar flexion were likewise
equal bilaterally.  There was equal subtalar motion
bilaterally, and the dorsalis pedis and posterior tibialis
pulses were within normal limits.  Observation of the veteran
as he walked revealed a possible slight tendency of the third
and fourth toes of his left foot to separate, with the fourth
and fifth toes on the left side going into slight valgus or
diverging.  When heel/toe walking, there was no evidence of
any weakness or deformity.  The veteran showed normal
dorsiflexion power against resistance, and there was no
evidence of any weakness of the great toe extensor.  At the
time of evaluation, the veteran exhibited no pain to
palpation around the left fibular head.  In the opinion of
the examiner, given the presence of subjective numbness in
the foot and very distal tibia/ankle area (albeit in a
stocking/glove distribution) and intermittent complaints of
numbness, an electromyogram and nerve conduction study were
necessary in order to rule in or out a variant of reflex
sympathetic dystrophy.  Other than the slight divergence of
the veteran's third and fourth toes, the objective physical
examination was felt to be completely within normal limits.
Subsequent electromyographic/nerve conduction studies
attempted in early July 1998 were discontinued due to patient
"near intolerance."  What results were able to be obtained
showed the left peroneal nerve, tibial nerve, and sural
nerve, as well as proximal electromyographic studies, to be
within normal limits.  In the opinion of the examiner, there
was "no anatomical basis" to account for the veteran's
subjective symptoms, and other than the slight divergence of
his toes, no evidence of any functional deficit.  Further
noted was that the veteran exhibited no evidence of any
orthopedic disease.

During the course of a VA fee basis psychovocational
evaluation in July 1999, it was noted that the veteran had
been experiencing pain in his hip, and that he was "hung
over."  While the veteran had, reportedly, not consumed
alcohol on the date of the evaluation, he did display a
noticeable problem with hand tremors.  Reportedly, after the
veteran began to drink, his hand tremors "tended to go away."
When questioned as to whether he could stand or walk during
an eight-hour day, the veteran did not provide a clear
answer.  He did, however, indicate that he was often on his
feet when he "laid blocks," and that he felt pain "all day
long" when he did this.  According to the veteran, he
experienced problems when standing due to difficulties with
his ankle, and pain in his left leg and hip.  When questioned
regarding his history of employment, the veteran indicated
that he had last worked some two weeks earlier.  Additionally
noted was that the veteran had "some 25 years experience" as
a block layer, which was the only work that he had ever done,
with the exception of one month's experience as a cab driver.
The veteran stated that, while he was a licensed contractor,
he had "never bid on a job."  In the opinion of the
evaluator, the veteran would probably have difficulty
functioning under the stress of a job, in particular, given
his current lack of drive or motivation.  At the time of
evaluation, it was unclear whether or not the veteran could
physically return to the work of a block layer.  However, it
did appear that certain psychological factors and problems
with alcohol had been impacting upon his ability to function
in his chosen employment.

In a report of a VA counseling psychologist dated in August
1999, it was noted that the veteran was currently unemployed,
and dependent on financial support from VA compensation.
According to the veteran, he had "extensive experience" in
the masonry trades, which had provided him with "occasional
employment" for a short period of time.  In the opinion of
the counseling psychologist, the veteran appeared to be
experiencing significant financial, social, and functional
hardship as a result of his inability to obtain and maintain
suitable employment.  However, while the veteran's
service-connected ankle condition contributed to some degree
to his employment handicap, it was his chronic history of
profound alcohol dependence and anti-social behavior which
led to a finding of "currently not feasible to benefit from a
program of vocational rehabilitation."  The veteran openly
and boldly proclaimed that he "drank a lot," and that he was
either drunk or hungover most of the time.  The veteran
further stated that there were significant nonservice-
connected health issues which further limited his ability to
obtain employment.  More specifically, the veteran indicated
that he was experiencing severe abdominal pain, and "passing
blood."  In the opinion of the VA counseling psychologist,
the veteran was unemployable "as a result of both
service-connected and predominantly nonservice-connected
disabilities."

Pertinent evidence currently of record is to the effect that
the veteran has occupational experience as a brick mason and
cab driver, and completed three years of high school.  By the
veteran's own admission, he last worked in June 1999.

Analysis

Regarding the veteran's claim for an increased evaluation for
his service-connected residuals of fracture of the left
ankle, the Board notes that disability evaluations, in
general, are intended to compensate for the average
impairment of earning capacity resulting from a
service-connected disability.  They are primarily determined
by comparing objective clinical findings with the criteria
set forth in the rating schedule.  38 U.S.C.A. � 1155 (West
1991 & Supp. 2000); 38 C.F.R. Part 4 (1999).  Moreover, it is
the intent of the Schedule for Rating Disabilities (Part 4)
to recognize painful motion with joint or periarticular
pathology as productive of disability.  38 C.F.R. � 4.59
(1999).  This is to say that, even absent a definable
limitation of motion, where there is functional disability
due to pain, supported by adequate pathology, compensation
may be warranted.  38 C.F.R. � 4.40 (1999); see also
DeLuca v. Brown, 8 Vet. App. 202 (1995).

In evaluating the severity of a particular disability, it is
essential to consider its history.  Schafrath v. Derwinski,
1 Vet. App. 589 (1991); 38 C.F.R. �� 4.1, 4.2 (1999).
However, where entitlement to compensation has already been
established, and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings.  Francisco v.
Brown, 7 Vet. App. 55 (1994).

In the case at hand, the veteran seeks an increased
evaluation for the service-connected residuals of fracture of
his left ankle.  In pertinent part, it is argued that current
manifestations of the veteran's service-connected fracture of
the left ankle are more severe than presently evaluated, and
productive of a greater degree of impairment than is
reflected by the 10 percent evaluation currently assigned.

In that regard, the Board observes that, on VA orthopedic
examination in February 1996, there was a full range of
motion of the veteran's ankle and subtalar joint on the left.
While the veteran's left ankle showed no evidence of
tenderness, there was pain on motion.  Moreover, at the time
of examination, the veteran reported problems with "constant
left ankle pain."  As of the time of a more recent VA
orthopedic examination in June 1998, the veteran once again
complained of pain in his left ankle, resulting in
"intermittent problems" with that ankle.  While on physical
examination, there was again no evidence of any limitation of
motion of the veteran's left ankle, the veteran consistently
complained of a periodic "incapacitating pain," for which he
self-medicated with alcohol.

The Board observes that the 10 percent evaluation currently
in effect contemplates the presence of a moderate limitation
of motion of the veteran's service-connected ankle, and/or
slight ankle disability.  38 C.F.R. Part 4, Codes 5262, 5271
(1999).  A compensable evaluation is, likewise, warranted
where there is evidence of a functional loss due to pain,
supported by adequate pathology.  38 C.F.R. � 4.40 (1999).
In order to warrant an increased, which is to say 20 percent,
evaluation, there would, of necessity, need to be
demonstrated the presence of marked limitation of motion of
the veteran's service-connected ankle, and/or moderate ankle
disability.  38 C.F.R. Part 4, Codes 5262, 5271 (1999).
However, as is clear from the above, the veteran currently
experiences no limitation of motion of his left ankle.  In
point of fact, with the exception of a slight divergence of
the third and fourth toes of the veteran's left foot, his
most recent physical examination is essentially unremarkable.
The veteran has, however, consistently complained of a
debilitating pain in his left ankle, which has been
productive of a certain "functional loss."  Under such
circumstances, the Board is of the opinion that the
10 percent evaluation currently in effect is appropriate.
However, given recent examination findings, an evaluation in
excess of 10 percent for the veteran's service-connected
residuals of fracture of the lateral malleolus of the left
ankle is not warranted.

Turning to the issue of a total disability rating based upon
individual unemployability, it is argued that the veteran's
service-connected residuals of left ankle fracture, and the
additional disability resulting therefrom, when taken in
conjunction with his education and occupational experience,
are sufficient to preclude his participation in substantially
gainful employment.  In that regard, total disability ratings
for compensation may be assigned where the schedular rating
is less than total, when it is found that the
service-connected disabilities are sufficient to produce
unemployability without regard to advancing age.  38 C.F.R.
�� 3.321, 3.340, 3.341, 4.16 (1999).

In the case at hand, a review of the record discloses that
the veteran has completed three years of high school.
Reportedly, the veteran has had occupational experience as a
brick mason and a taxi driver, and last worked in June 1999.
The veteran's sole service-connected disability consists of
the residuals of fracture of the lateral malleolus of the
left ankle, evaluated as 10 percent disabling.

As per the aforementioned discussion, the veteran's
service-connected residuals of fracture of the left ankle had
been judged to be no more than 10 percent disabling.
Moreover, based upon a review of the evidence of record, it
is clear that the majority of the veteran's disability is, in
fact, the result of various nonservice-connected conditions,
in particular, his abuse of alcohol.  In that regard, at the
time of a VA counseling psychologist's report in August 1999,
it was noted that, while the veteran's service-connected
ankle condition contributed to some degree to his employment
handicap, it was his chronic history of profound alcohol
dependence and anti-social behavior which led to a finding of
"currently not feasible to benefit from a program of
vocational rehabilitation."  That same psychologist further
commented that, while the veteran was currently unemployable,
this was due to a combination of "service-connected and
predominantly nonservice-connected disabilities."

Based on such evidence, the Board is compelled to conclude
that the veteran's service-connected disability, consisting
solely of the residuals of fracture of his left ankle, when
taken in conjunction with his education and occupational
experience, is insufficient to preclude substantially gainful
employment.  Accordingly, the veteran's claim for a total
disability rating based upon individual unemployability must
be denied.

ORDER

An evaluation in excess of 10 percent for the
service-connected residuals of fracture of the lateral
malleolus of the left ankle is denied.

A total disability rating based upon individual
unemployability due to service-connected disability is
denied.

	Gary L. Gick
	Member, Board of Veterans' Appeals


series: legacy

judge_norm: ALAN S PEEVY

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text: The appeal is denied.

text:
Citation Nr: 0025000
Decision Date: 09/20/00    Archive Date: 09/27/00

DOCKET NO.  95-22 483	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently evaluated at 30 percent
disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Kelli A. Kordich, Associate Counsel

INTRODUCTION

The veteran had active duty service from June 1968 to May
1970.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1995 rating decision by the
St. Louis, Missouri, Regional Office (RO) of the Department
of Veterans Affairs (VA).  A notice of disagreement was
received in March 1995, a statement of the case was issued in
March 1995, and a substantive appeal was received in July
1995.

FINDINGS OF FACT

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

2.  The veteran's service-connected PTSD is manifested by no
more than more than definite social and industrial
impairment, and no more than occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform tasks.

CONCLUSION OF LAW

The criteria for entitlement to a disability evaluation in
excess of 30 percent for the veteran's service-connected PTSD
have not been met.  38 U.S.C.A. �� 1155, 5107 (West 1991); 38
C.F.R. Part 4, including �� 4.7, 4.132, Diagnostic Code 9411
(1995); 38 C.F.R. � 4.130, Diagnostic Code 9411 (effective
from November 7, 1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran claims that he has suffered an increase in the
severity of this service-connected disability.  When a
veteran is seeking an increased rating, such an assertion of
an increase in severity is sufficient to render the increased
rating claim well-grounded.  38 U.S.C.A. � 5107(a); Proscelle
v. Derwinski, 2 Vet. App. 629, 632 (1992).  With a well-
grounded claim arises a statutory duty to assist the veteran
with the development of evidence in connection with his
claim.  38 U.S.C.A. � 5107(a).  After noted that the claims
file includes VA outpatient records and examinations
(including an examination as recent as March 2000), the Board
finds that the record as it stands is adequate to allow for
equitable review of the veteran's increased rating claim and
that no further action is necessary to meet the duty to
assist the veteran.

Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability.  38 U.S.C.A. � 1155; 38
C.F.R. Part 4.  Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating.  Otherwise, the lower
rating will be assigned.  38 C.F.R. � 4.7.

In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition.  Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).

Service connection for PTSD was established by rating
decision dated September 1989 based on combat related
experiences during the Vietnam War.  The veteran was assigned
a 10 percent evaluation.  By a rating decision dated March
1995 the veteran's evaluation was increased to 30 percent,
and the present appeal ensued.

During the course of the appeal, substantive changes were
made to the schedular criteria for evaluating psychiatric
disorders, effective November 7, 1996.  See 38 C.F.R. ��
4.125-4.132 (1996); see also 61 Fed. Reg. 52695-52702 (1996).
Where the law or regulations governing a claim change while
the claim is pending, the version most favorable to the
claimant will apply, absent congressional intent to the
contrary.  See Karnas v. Derwinski, 1 Vet. App. 308, 312-313
(1991).  However, these regulations cannot be applied prior
to their effective date.  VAOPGCPREC 3-00.

Prior to November 7, 1996, (the old criteria), psychiatric
disabilities were evaluated under 38 C.F.R. � 4.132,
Diagnostic Code 9411.

Under that criteria a 30 percent rating for PTSD is warranted
when there is definite impairment in the ability to establish
or maintain effective and wholesome relationships with
people.  The psychoneurotic symptoms result in such reduction
in initiative, flexibility, efficiency and reliability levels
as to produce definite industrial impairment.  In a precedent
opinion, VA's General Counsel concluded that "definite" is to
be construed as "distinct, unambiguous, and moderately large
in degree."  It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large."  VAOPGCPREC 9-93.  The Board is bound by this
interpretation of the term "definite."  38 U.S.C.A.
� 7104(c).  The next higher rating of 50 percent under the
old criteria is warranted when the ability to establish or
maintain effective or favorable relationships with people is
considerably impaired.  By reason of psychoneurotic symptoms,
the reliability, flexibility and efficiency levels are so
reduced as to result in considerable industrial impairment.

Under the revised criteria effective November 7, 1996, (the
new criteria), there is a general rating formula for mental
disorders, which provides that:

A 30 percent rating requires occupational and social
impairment, with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as:  depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events).  A 50 percent rating is for
application for occupational and social impairment with
reduced reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (for example, retention of only
highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.

VA outpatient psychiatric treatment records dated November
1994 to July 1995 show the veteran's complaints of poor sleep
due to chest congestion, depression, and discouragement.  The
veteran claimed that he was denied jobs due to his physical
problems.  The examiner noted that he was still considered
capable of functioning under stress and interpersonal
relations.  It was noted that he worked hard to obtain
vocational training and had consistently sought employment.
It was also noted that recent physical deterioration and
consequent lack of employment had been quite discouraging,
and had exacerbated depression and PTSD.  He denied
hallucinations and was not delusional.  Speech was goal
oriented, but tended to be hypertalkative.  Special testing
resulted in findings of:  dysthymia; anxiety; major
depression; involving depressed mood; feelings of
worthlessness and failure; feelings of irritability and great
tension as well as periodic loss of temper control.  Ongoing
weakness and fatigue, inability to obtain restful sleep, and
extreme discomfort with and withdrawal and isolation from
others continued to be indicated by testing.  In addition,
several testing features included predominant avoidant and
elevated passive aggressive personality subscales along with
anxiety and dysthymia clinical subscale elevations were
consistent with patterns associated with the PTSD diagnosis.
The diagnoses in April 1994 were major depression disorder,
recurrent, moderate; dysthymic disorder; PTSD, chronic, with
delayed onset.  It was again noted that his health
deterioration had a substantial psychological impact and
would not easily be resolved as the physical disease was
chronic and substantial.  In September 1994 the veteran
reported escalation of his PTSD symptoms including
nightmares, flashbacks, and hyperstartle response.  In
January 1995 the veteran reported continued depressed mood,
irregular sleep pattern with minimal rest, and distressing
episodes of memory lapse and difficulty maintaining
concentration/attention.  The veteran's mood was judged to be
moderately depressed and mood was rather flat.  The veteran
was also having recurrent distressing dreams, flashbacks
elicited by normally benign environmental stimuli, increased
irritability, difficulty concentrating, and hypervigilance.
The veteran's depression was described as mild to moderate.

At an August 1995 VA examination, the veteran reported some
periods of depression, irritability, feelings of fatigue and
anhedonia.  He denied nightmares, but admitted to flashbacks
which were declining.  He occasionally had dreams of Vietnam.
He feared difficulty in maintaining relationships with others
except with fellow veterans where he felt more comfortable
with them.  He occasionally had feelings of worthlessness,
anxiety, tension, irritability, as well as feelings of
isolation.  The veteran also disliked crowded areas and loud
noises reminded him of Vietnam.  He had maintained some
periods of hyperexcitability and startle response.  He denied
any psychogenic amnesia, hallucinations, or delusions, but
did admit to some feelings of paranoia towards others
especially authority figures.  He denied any ideas of
reference, persecution, suicidal thoughts or homicidal
ideations.  The examination showed eye contact was fair,
speech was goal directed, coherent and relevant, although he
had difficulty trying to remember parts of the Vietnam
experiences he had, but later was more spontaneous.  His
affect had not made any change and mood was mostly congruent.
He denied hallucinations, delusions, ideas of reference or
persecution.  His memory appeared fair and psychomotor
activity was normal.  The diagnosis was PTSD with depressive
features, mild to moderate.

A VA staff psychologist in a letter dated August 1995 to the
veteran's attorney who represented him before the Social
Security Administration (SSA) indicated that his PTSD and
respiratory problems impaired his capacity to obtain and
maintain competitive employment even in unskilled areas.  The
SSA in a decision in September 1995 found the veteran
disabled from December 1992 due to his chronic obstructive
pulmonary disease (COPD) and PTSD symptomatology.

Reports from the Vietnam survivor group meetings dated
January 1998 to April 1998 indicated that the veteran was a
bit disappointed that his most recent relationship failed to
develop.  However, he had not given up seeking a mate.  The
veteran had difficulty sleeping and was easily tired with
minimal exertion.  The veteran's mood was judged to be
moderately depressed.  The veteran also reported hurting his
back which also contributed to his depression.

At an October 1997 VA examination, the veteran reported
continuing to have interpersonal relationship problems and
could not become close to people and became easily afraid.
He described having difficulty with hyper alertness and
anxiety and would sit with his back to the door.  Noises
continued to startle him and he would feel the need to attack
but could not control any aggressive impulses.  The examiner
indicated that it was difficult getting a clear history on
exactly what symptoms he was currently having.  The
examiner's impressions were that the veteran did appear to
have a clear history of PTSD, but was not experiencing any
nightmares or flashbacks and did endorse symptoms of hyper
alertness and emotional distancing from others.  He also
appeared to have had an episode of major depression which at
the time of the examination appeared to be in remission.  The
examiner indicated that the notes in the veteran's outpatient
file dated May 1997 and July 1997 described his symptoms of
PTSD as well as depression as being under good control since
that time, and failed to describe any further worsening of
symptoms.  Over the past year the veteran did describe some
difficulty with anxiety and occasional intrusive thoughts
regarding his combat experience.  The veteran was not able to
give any clear symptoms that would account for inability to
engage in gainful employment other than his difficulty with
some feelings of anxiety and hyperviligilance.  He explained
to the examiner that he had been seeing a VA psychologist
since 1991, but had not seen him for the last six months
according to the record.  When asked about additional current
symptoms that were disabling for him, he told the examiner
there were more but he could not remember.  The examiner
suspected that the veteran would endorse whatever symptoms
the examiner would bring up, but the veteran would not bring
them up spontaneously.  The examiner noted that it called
into question for himself the actual severity of symptoms
that the veteran was experiencing.  The veteran was at least
experiencing some mild social impairment.  The Axis I
diagnosis was PTSD, major depression in remission.  Axis III
diagnosis was emphysema, asthma.  The Global Assessment of
Functioning (GAF) score was assessed as 75.

At a March 2000 VA examination, the examiner noted that the
veteran had been diagnosed a year prior with carcinoma of the
lung which was bronchus tumor in his right lung and
complained it was affecting his left lung, and was undergoing
treatment.  The veteran reported not being able to sleep
soundly and there were periods of recurrent nightmares or
dreams of Vietnam.  Besides his shortness of breath, he still
woke up at night with occasional cold sweats.  The veteran
continued to feel uncomfortable with crowded areas and could
easily feel being closed in.  Loud noises continued to bother
him as he was easily startled.  He became easily
hyperexcitable, especially when people touched him from
behind.  He denied any feelings of foreshortened future.  He
avoided any thought or feelings associated with his trauma,
or any distressing recollections of events.  He denied any
hallucinations, delusions, ideas of reference, or
persecutions.  The examiner noted that the veteran appeared
to be pleasant in mood, but indicated you could see an inner
feeling of depression and anxiety, which was more secondary
to his medical problems and concern.  His speech was goal
directed.  He had little hesitations as he talked about some
of the experiences that he had in the war, claiming that he
was not proud of telling about his experiences.  His memory
appeared fair, psychomotor activity was normal.  There was no
evidence of psychosis at the time.  Intelligence appeared
normal.  Axis I diagnosis was PTSD with a depressive
features; Axis II diagnosis was personality disorder; Axis
III diagnosis was carcinoma of the lungs; Axis IV
psychosocial stressors: lung problems as well as some
stresses of his war experiences in Vietnam.  GAF score was
assessed as 40-50 for the previous year.

The Board believes that the old rating criteria may be viewed
as more favorable to the veteran in that such criteria are
arguably broader and more subjective.  However, a review of
the evidence under either the old or new criteria does not
show that the veteran's PTSD "more nearly approximates" the
criteria required for a 50 percent evaluation.  See 38 C.F.R.
� 4.7.  The veteran's social and occupational impairment has
consistently been described as essentially moderate, and the
current 30 percent rating under the old criteria contemplates
impairment which is more than moderate and less than rather
large.  Further, looking to the new criteria, while there are
some occasional findings of flattened affect, some memory
problems, and some relationship problems, there is no
evidence of circumstantial, circumlocutory, or stereotyped
speech; panic attacks more than once a week; difficulty in
understanding complex commands; impaired judgment; or
impaired abstract thinking.

The Board notes that the VA examination in October 1997
assessed a GAF score of 75; however, the March 2000 VA
examination assessed a GAF of 40-50.  GAF is a scale
reflecting the "psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness."  See American Psychiatric Association's Diagnostic
and Statistical Manual for Mental Disorders (4th ed. 1994)
(DSM-IV) adopted by the VA at 38 C.F.R. �� 4.125, 4.130.  A
GAF of 40 indicates "some impairment in reality testing or
communications (e.g., speech is at times illogical, obscure,
or irrelevant) OR major impairment in several areas, such as
work or school, family relations, judgment, thinking, or
mood..."  A GAF of 41 to 50 indicates "serious symptoms...OR any
serious impairment in social, occupational, or school
functioning..."  A GAF of 71 to 80 indicates "if symptoms are
present, they are transient and expectable reactions to
psychosocial stressors...; no more than slight impairment in
social, occupational, or school functioning..."  While the
veteran's recent GAF scores indicate serious social and
industrial impairment, it is reflective of the veteran's
total psychiatric picture.  In the March 2000 VA examination
the examiner opined that although the veteran appeared to be
pleasant in mood, you could see an inner feeling of
depression and anxiety, which was more secondary to his
medical problems and concern.  While the record in this case
clearly confirms occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks, it does
not that the PTSD results in occupational and social
impairment with reduced reliability and productivity so as to
warrant a 50 percent evaluation.  Accordingly, the veteran's
claim of entitlement to an evaluation in excess of 30 percent
for PTSD is denied.

In reaching this determination, the Board in no manner doubts
the seriousness of the veteran's PTSD.  However, evaluations
are to be based on regulatory criteria.  The preponderance of
the evidence in this case is against a finding that the
criteria for a rating in excess of the current 30 percent is
warranted for the PTSD under either the old or new criteria.
It follows that the provisions of 38 U.S.C.A. � 5107(b) do
not otherwise permit a favorable determination.

Further, there is no indication that an extraschedular
evaluation is merited in this matter.  The potential
application of various provisions of Title 38 of the Code of
Federal Regulations have also been considered but the record
does not present such "an exceptional or unusual disability
picture as to render impractical the application of the
regular rating schedule standards."  38 C.F.R. � 3.321(b)(1).
The Board finds the criteria for submission for assignment of
an extraschedular rating pursuant to 38 C.F.R. � 3.321(b)(1)
have not been met.  See Bagwell v. Brown, 9 Vet. App. 337
(1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

ORDER

The appeal is denied.

	ALAN S. PEEVY
	Member, Board of Veterans' Appeals


judge_norm: THOMAS J DANNAHER

disposition: remanded

text:
Citation Nr: 0026000
Decision Date: 09/28/00    Archive Date: 10/04/00

DOCKET NO.  94-31 824A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts

THE ISSUES

1.  Entitlement to service connection for a low back
disability.

2.  Entitlement to a compensable evaluation for service
connected residuals of fracture, left distal forearm.

3.  Entitlement to an increased evaluation for service
connected residuals of fracture, left collarbone, currently
evaluated as 20 percent disabling.

REPRESENTATION

Appellant represented by:	Vietnam Veterans of America

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. Eckart, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1978 to March
1981.

This case comes before the Board of Veterans' Appeals (Board)
from rating decisions from the Boston, Massachusetts Regional
Office (RO) of the Department of Veterans Affairs (VA).

REMAND

The veteran has alleged treatment for a low back disability
at VA facilities, the records of which are not currently
associated with the claims file.  In his Travel Board hearing
of May 2000, the veteran testified that he was seen by an
orthopedist at a VA outpatient clinic in Westwood or in Los
Angeles, California since 1983.  He testified that he also
was treated in the Springfield Massachusetts VA clinic since
1983.  He further testified that he underwent a VA
examination in Springfield, MA, for his back, in which he
claims to have been given some X-rays and pain medication a
few weeks prior to the hearing; this examination is not
associated with the claims file.

The Board notes that there is some duty to assist a veteran
in the completion of his application for benefits under
38 U.S.C.A. � 5103(a), depending on the particular facts in
each case.  Robinette v. Brown, 8 Vet. App. 69 (1995).  As
the veteran has identified records which could possibly make
his service connection claim well grounded, and as these
records are in the possession of the United States
government, the Board believes that attempts must be made to
obtain these records and associate them with the claims
folder prior to reaching a decision in this case.  In Bell v.
Derwinski, 2 Vet. App. 611 (1992), the Court held that VA
records, to include records of evaluation or treatment in a
VA facility, are in the constructive possession of VA at the
time of adjudication.  Thus, any existing VA treatment
records should be associated with the claims file prior to
disposition.

Regarding his claims for entitlement to an increased
evaluation for a fractured left clavicle and fractured left
distal forearm, these claims are well- grounded.  In general,
an allegation of increased disability is sufficient to
establish a well-grounded claim seeking an increased rating.
Proscelle v. Derwinski, 2 Vet. App. 629 (1992).  The VA has a
duty to assist the veteran in the development of facts
pertinent to a well-grounded claim. 38 U.S.C.A. � 5107(a)
(West 1991); 38 C.F.R. � 3.103(a) (1999).

In this case, the Board finds that the report from an April
1999 fee-basis examination addressing the left forearm and
clavicle disabilities appears incomplete.  The examiner is
noted to have recommended that the veteran be further
evaluated by an orthopedic specialist.  This does not appear
to have been done.  The duty to assist includes, when
appropriate, the duty to conduct a thorough and
contemporaneous examination of the veteran.  Green v.
Derwinski, 1 Vet. App. 121 (1991).  In order to fulfill the
Board's duty to assist, the RO should schedule a VA
examination by an orthopedic specialist.

Therefore, under the circumstances, further appellate
consideration will be deferred and the case is REMANDED to
the RO for the following actions:

1.  The RO should attempt to locate any
records from the VA facility in West Los
Angeles, California since 1983 and VA
records from Springfield Massachusetts
clinic since 1983.  The report from a VA
examination in Springfield, MA, for his
back said to have taken place around
April or May 2000, should also be
obtained.   All treatment records
obtained, should be made a part of the
claims folder.  If VA records or the VA
examination report are not available this
should be documented in writing.

2.  The veteran should be afforded a VA
orthopedic examination to determine
severity of his service connected
residual of a left distal forearm
fracture and residual of a left clavicle
fracture.  The examiner should describe
any anatomical damage or functional loss,
including the inability to perform normal
working movements with normal excursion,
strength, speed, coordination, and
endurance.  Range of motion testing
should be performed and recorded in
degrees; the examiner should state what
at what degree pain is elicited.  The
examiner should specify any functional
loss due to pain or weakness, and
document all objective evidence of those
symptoms.  See 38 C.F.R. �� 4.40, 4.45,
4.59 (1999); DeLuca v. Brown, 8 Vet. App.
202 (1995).  In addition, the examiner
should provide an opinion on the degree
of any functional loss likely to result
from a flare-up of symptoms or on
extended use and to not limit an
evaluation of disability to a point in
time when the symptoms are quiescent.
The examiner should also document, to the
extent possible, the frequency and
duration of exacerbations of symptoms. A
complete rationale for the opinions given
should be provided.

3.  After undertaking any development
deemed essential in addition to that
specified above, the RO should then
readjudicate the issues on appeal.
Regarding the claims for entitlement to
increased evaluations for the left
clavicle and distal forearm fractures,
the RO should consider 38 C.F.R. �� 4.40,
4.45, 4.59 (1999); DeLuca v. Brown, 8
Vet. App. 202 (1995).  If any benefit
requested on appeal is not granted to the
veteran's satisfaction, the RO should
issue a supplemental statement of the
case. A reasonable period of time for a
response should be afforded.

Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order.  No action is
required of the veteran until he is notified by the RO;
however, the veteran is advised that failure to cooperate by
reporting for examinations may result in the denial of his
claim.  38 C.F.R. � 3.655 (1999).   The appellant has the
right to submit additional evidence and argument on the
matter or matters the Board has remanded to the regional
office.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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.

	THOMAS J. DANNAHER
	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) (1999).

- 5 -


judge_norm: SHANE A DURKIN

judge_role: Veterans Law Judge

disposition: granted

condition: knee

text:
Citation Nr: 0027000
Decision Date: 10/11/00    Archive Date: 10/19/00

DOCKET NO.  99-09 680	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska

THE ISSUES

1.  Entitlement to service connection for right ankle
disability.

2.  Entitlement to service connection for right knee
disability.

3.  Entitlement to an evaluation in excess of 10 percent for
nerve laceration of the left index finger.

4.  Entitlement to an evaluation in excess of 10 percent for
left retropatellar pain syndrome.

5.  Entitlement to a compensable evaluation for bilateral
hallux valgus.

6.  Entitlement to a compensable evaluation for lumbar
strain.

7.  Entitlement to a compensable evaluation for left ankle
disability.

8.  Entitlement to a compensable evaluation for right thigh
disability.

REPRESENTATION

Appellant represented by:	John Stevens Berry, attorney-
at-law

ATTORNEY FOR THE BOARD

J. W. Loeb, Counsel

INTRODUCTION

The veteran served on active duty from May 1982 to June 1998.
This case came before the Board of Veterans' Appeals (Board)
on appeal of a September 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska.

A September 1998 rating decision denied entitlement to
service connection for right ankle disability and right knee
disability and granted entitlement to service connection for
nerve laceration of the left index finger, left retropatellar
pain syndrome, bilateral hallux valgus, left ankle
disability, lumbar strain, and right thigh disability.  A 10
percent evaluation was assigned for nerve laceration of the
left index finger and left retropatellar pain syndrome and
noncompensable evaluations were assigned for bilateral hallux
valgus, left ankle disability, lumbar strain, and right thigh
disability; all evaluations were effective July 1, 1998.  The
veteran timely appealed this rating action.

The issues of entitlement to an evaluation in excess of 10
percent for left retropatellar pain syndrome and for
compensable evaluations for lumbar strain, left ankle
disability, and right thigh disability will be addressed in
the remand portion of this action.

FINDINGS OF FACT

1.  The veteran's claims for service connection for right
ankle disability and right knee disability are plausible.

2.  There is no more than mild incomplete paralysis of the
median nerve of the left index finger.

3.  The veteran has hallux valgus of both great toes with
bilateral toe pain; neither the right nor left hallux valgus
has been operated on and neither is equivalent to amputation
of the great toe.

CONCLUSIONS OF LAW

1.  The veteran's claims for service connection for right
ankle disability and for right knee disability are well
grounded.  38 U.S.C.A. � 5107(a) (West 1991).

2.  The criteria for an evaluation in excess of 10 percent
for nerve laceration of the left index finger have not been
met.  38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. ��
4.7, 4.124a, Diagnostic Code 8515 (1999).

3.  The criteria for a compensable evaluation for bilateral
hallux valgus have not been met.  38 U.S.C.A. �� 1155, 5107
(West 1991); 38 C.F.R. �� 4.7, 4.31,
4.71a, Diagnostic Code 5280 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by military
service.  38 U.S.C.A. �� 1110, 1131 (West Supp. 2000).

As a preliminary matter, the Board must determine whether the
appellant has submitted evidence of well-grounded claims.  If
she has not, her claims must fail, and VA is not obligated to
assist her in the development of the claims.  38 U.S.C.A.
� 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak
v. Derwinski, 2 Vet. App. 609 (1992).

The United States Court of Appeals for Veterans Claims
(Court) has stated repeatedly that 38 U.S.C.A. � 5107(a)
unequivocally places an initial burden on a claimant to
produce evidence that a claim is well grounded.  See Grivois
v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown,
5 Vet.App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet.App.
609, 610-11 (1992).  A well-grounded claim is a plausible
claim, that is, a claim which is meritorious on its own or
capable of substantiation.  Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990).  The Court has stated that the quality and
quantity of evidence required to meet this statutory burden
depends upon the issue presented by the claim.  Grottveit at
92-93.  Where a determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is plausible or possible is
required.  Id.

The veteran was given a VA general medical examination in
March 1998, which was prior to service discharge in June
1998.  The diagnoses included bilateral ankle pain with
stress reactions and bilateral retropatellar pain syndrome.
No subsequent medical evidence is on file.  These diagnoses
of current disability shortly before service discharge
establish that the veteran's claims are plausible and thus
well grounded.

Original Ratings

As a preliminary matter, the Board finds that the veteran's
claims for an evaluation in excess of 10 percent for nerve
laceration of the left index finger and for a compensable
evaluation for bilateral hallux valgus are well grounded
within the meaning of 38 U.S.C.A. � 5107(a).  The Board is
satisfied that all available evidence necessary for an
equitable disposition of these claims has been obtained.

In accordance with 38 C.F.R. �� 4.1, 4.2, 4.41, 4.42 (1999)
and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board
has reviewed all evidence of record pertaining to the history
of the service-connected disabilities.  The Board has found
nothing in the historical record which would lead to the
conclusion that the current evidence of record is not
adequate for rating purposes.  Moreover, the Board is of the
opinion that this case presents no evidentiary considerations
which would warrant an exposition of remote clinical
histories and findings pertaining to these disabilities.

Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
38 U.S.C.A. � 1155 (West 1991); 38 C.F.R. Part 4 (1999).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned.  38 C.F.R. � 4.7.

In every instance where the schedule does not provide a
noncompensable evaluation for a diagnostic code, a
noncompensable evaluation shall be assigned when the
requirements for a compensable evaluation are not met.
38 C.F.R. � 4.31.

The veteran's rating claims are original claims that were
placed in appellate status by a Notice of Disagreement
expressing disagreement with an initial rating award.  The
rule from Francisco v. Brown, 7 Vet.App. 55, 58 (1994) (Where
entitlement to compensation has already been established and
an increase in the disability rating is at issue, the present
level of disability is of primary importance.) is not
applicable to the assignment of an initial rating for a
disability following an initial award of service connection
for that disability.  Rather, at the time of an initial
rating, separate ratings can be assigned for separate periods
of time based on the facts found-a practice known as
"staged" ratings.  See Fenderson v. West, 12 Vet. App. 119
(1999).

A.  Left index finger

Service medical records reveal that the veteran lacerated her
left index finger in early 1995, requiring stitches.

On VA examination in March 1998, the veteran's complaints
included sensory nerve damage to the left index finger with
hypesthesia.  It was noted that she is right-handed.
Physical examination revealed nontender scarring over the
lower aspect of the left index finger with full range of
motion of the finger.  It was noted that the left index
finger was significant for hypesthesia to light touch and
two-point discrimination as compared to the right.
Hypesthesia of the left index finger secondary to nerve
laceration was diagnosed.

The veteran's left index finger disability is assigned a 10
percent evaluation under Diagnostic Code 8515 for mild
incomplete paralysis of the median nerve.  A 10 percent
evaluation is warranted for mild incomplete paralysis of the
median nerve of either upper extremity.  A 20 percent
evaluation requires moderate incomplete paralysis of the
median nerve of the major upper extremity.  38 C.F.R. Part 4,
Diagnostic Code 8515.  The term "incomplete paralysis" used
in reference to evaluation of peripheral nerve injuries
indicates a degree of lost or impaired function substantially
less than the type pictured for complete paralysis given with
each nerve, whether due to varied level of the nerve lesion
or to partial regeneration. When the involvement is wholly
sensory, the rating should be for the mild, or at most, the
moderate degree.  38 C.F.R. � 4.124a (1999).

As noted above, there is full range of motion of the left
index finger, and the only abnormality noted is hypesthesia.
Since the functional impairment is limited to the veteran's
left index finger and the involvement is wholly sensory, a
rating in excess of 10 percent is not warranted.  38 C.F.R.
� 4.7.

B.  Bilateral hallux valgus

X-rays of the feet in service in February 1997 showed mild
hallux valgus of both feet with borderline widening of the
right intermetatarsal angle and plantar calcaneal spur
formation on the left.  The assessment in October 1997 was
hallux valgus, right greater than left.

On VA examination in March 1998, the veteran's complaints
included bilateral hallux valgus, with left greater than
right toe pain.  Physical examination revealed hallux valgus,
greater on the right, with the right at 35 degrees and the
left at 15 degrees.  Bilateral hallux valgus was diagnosed.

Although the RO assigned a noncompensable evaluation for
bilateral hallux valgus under Diagnostic Code 5281, this code
is for hallux rigidus; since the veteran has hallux valgus
rather than hallux rigidus, the disability should be rated
under Diagnostic Code 5280.  A 10 percent evaluation is
assigned for unilateral hallux valgus if it has been operated
on, with resection of the metatarsal head, or if it is
severe, if equivalent to amputation of the great toe.
38 C.F.R. � 4.71a, Diagnostic Code 5280.

X-rays of the feet in February 1997 showed mild hallux valgus
of both feet with borderline widening of the right
intermetatarsal angle and plantar calcaneal spur formation on
the left.  However, there has not been any surgery on either
great toe; and the hallux valgus has been described as mild.
There is no medical evidence of severe hallux valgus that is
equivalent to amputation of the great toe.  Consequently, the
veteran's bilateral hallux valgus does not warrant either
separate compensable evaluations, as contended in the
veteran's substantive appeal, or a single compensable
evaluation.

ORDER

The Board having determined that the claims for service
connection for right ankle disability and for right knee
disability are well grounded, the appeal is granted to this
extent.

Entitlement to an evaluation in excess of 10 percent for
nerve laceration of the left index finger is denied.
Entitlement to a compensable evaluation for bilateral hallux
valgus is denied.

REMAND

Since the veteran's claims for service connection for right
ankle disability and right knee disability are well grounded,
VA has a duty to assist her in the development of the claims.
38 U.S.C.A. � 5107(a).  Although the March 1998 VA
examination report is sufficient to establish that the
veteran's claims are plausible, the Board has not found this
report to be adequate to establish the veteran's entitlement
to service connection for the disabilities at issue because
the examiner did not identify the etiology of the veteran's
pain.

With respect to the issues of entitlement to an evaluation in
excess of 10 percent for service-connected left retropatellar
pain syndrome and entitlement to compensable evaluations for
service-connected lumbar strain, left ankle disability, and
right thigh disability, the Board notes that the medical
evidence on file does not include an adequate assessment of
functional impairment of these disabilities, as required by
DeLuca v. Brown, 8 Vet.App. 202 (1995).

In light of the above, additional development is needed prior
to final adjudication.  Consequently, this case is REMANDED
to the RO for the following actions:

1.  The veteran should be requested to
provide the names, addresses and
approximate dates of treatment for any
health care providers, including VA, who
may possess additional records pertinent
to any pending claim.  After obtaining
any necessary consent forms for the
release of the veteran's private medical
records, the RO should obtain, and
associate with the file, all records
noted by the veteran that are not
currently on file.

2.  After the above, the RO should
arrange for a VA examination of the
veteran by a physician with appropriate
expertise to determine the nature and
etiology of any current right ankle and
right knee disabilities and to determine
the current severity of the veteran's
service-connected left retropatellar pain
syndrome, lumbar strain, left ankle
disability, and right thigh disability.
The claims folder, including a copy of
this REMAND, must be made available to
the examiner for study, and the
examination report must reflect that the
claims folder was reviewed.  Any
necessary tests or studies should be
conducted, and all findings should be
reported in detail.  After review of all
of the material in the claims file, the
examiner should provide an opinion as to
whether it is at least as likely as not
that any currently present right ankle or
right knee disability is etiologically
related to service.

The examiner should also describe all
symptomatology due to the service-
connected disabilities noted directly
above.  In reporting the results of range
of motion testing, the examiner should
identify any objective evidence of pain
and the specific excursion(s) of motion,
if any, accompanied by pain.  To the
extent possible, the examiner should
assess the extent of any pain.  Tests of
joint movement against varying resistance
should be performed.  The extent of any
incoordination, weakened movement and
excess fatigability on use should also be
described by the examiner.  The examiner
should also express an opinion concerning
whether there would be additional limits
on functional ability on repeated use or
during flare-ups (if the veteran
describes flare-ups), and, to the extent
possible, provide an assessment of the
functional impairment on repeated use or
during flare-ups.  The examiner should
provide an opinion on the impact of the
service-connected disabilities on the
veteran's ability to work.  The rationale
for each opinion expressed should also be
provided.

3.  Thereafter, the RO should review the
claims folder and ensure that all
developmental actions, including the
medical examination and requested
opinions, have been conducted and
completed in full.  The RO should then
undertake any other indicated development
and should readjudicate the claims of
entitlement to service connection for
right ankle disability and for right knee
disability and the claims for an
evaluation in excess of 10 percent for
left retropatellar pain syndrome and for
compensable evaluations for lumbar
strain, left ankle disability, and right
thigh disability, to include
consideration of 38 C.F.R.
�� 3.321(b)(1), 4.7, 4.40, and 4.45.

4.  If the benefits sought on appeal are
not granted to the veteran's
satisfaction, the RO should issue a
supplemental statement of the case and
provide the veteran and her
representative with an appropriate
opportunity to respond.

Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order.  By
this REMAND, the Board intimates no opinion as to any final
outcome warranted.  No action is required of the veteran
until she is otherwise notified by the RO.

The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court 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.

	Shane A. Durkin
	Veterans Law Judge
	Board of Veterans' Appeals


judge_norm: BARRY F BOHAN

disposition: dismissed

text:
Citation Nr: 0028000
Decision Date: 10/24/00    Archive Date: 11/01/00

DOCKET NO.  00-04 602	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for post-traumatic stress
disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

M.S. Lane, Associate Counsel

INTRODUCTION

The veteran served on active duty in the United States Navy
from January 1943 to November 1945.

The veteran's appeal arose from an October 1999 rating
decision of the Department of Veterans Affairs (VA) Regional
Office in Houston, Texas (The RO) which denied the veteran's
claim of entitlement to service connection for post-traumatic
stress disorder.

FINDING OF FACT

In May 2000, the Board was notified by the Department of
Veterans Affairs (VA) Regional Office in Houston, Texas that
the veteran died on May [redacted], 2000.

CONCLUSION OF LAW

Because of the death of the veteran, the Board has no
jurisdiction to adjudicate the merits of this claim.  38
U.S.C.A. � 7104(a) (West Supp. 2000); 38 C.F.R. � 20.1302
(1999).

REASONS AND BASES FOR FINDING AND CONCLUSION

In October 2000, while this case was pending before the
Board, the Board was informed that the veteran had passed
away in May 2000.  A copy of the Certificate of Death has
been associated with the veteran's claims folder.

Unfortunately, the veteran died during the pendency of the
appeal.  As a matter of law, veterans' claims do not survive
their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44
(Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34
(1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This
appeal on the merits has become moot by virtue of the death
of the veteran and must be dismissed for lack of
jurisdiction.  See 38 U.S.C.A. � 7104(a) (West Supp. 2000);
38 C.F.R. � 20.1302 (1999).

In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran.  38 C.F.R.
� 20.1106 (1999).

ORDER

The appeal is dismissed due to the death of the veteran.

	Barry F. Bohan
	Veterans Law Judge
	Board of Veterans' Appeals


judge_norm: JAMES A FROST

judge_role: Acting Veterans Law Judge

condition: respiratory

text:
Citation Nr: 0030000
Decision Date: 11/16/00    Archive Date: 11/22/00

DOCKET NO.  99-15 657	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan

THE ISSUE

Entitlement to an increased evaluation for chronic rhinitis
with history of sinusitis, currently evaluated as 10 percent
disabling.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

M. Vavrina, Associate Counsel

INTRODUCTION

The veteran served on active duty from December 1969 to April
1972.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.

FINDINGS OF FACT

1.  The RO has obtained all evidence necessary for an
equitable disposition of the veteran's claim.

2.  The veteran's allergic rhinitis is primarily manifested
by some tenderness of the maxillary sinuses, without purulent
drainage, crusting, or polyps.

CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for
chronic rhinitis with history of sinusitis have not been met.
38 U.S.C.A. �� 1155, 5107 (West 1991 & Supp. 2000); 38 C.F.R.
�� 4.1-4.14, 4.97, Diagnostic Code 6522 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that, on November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
which applies to all pending claims for VA benefits and which
provides that VA shall make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate the
claimant's claim for a benefit under a law administered by
VA.  See 38 U.S.C.A. � 5103A.  In the instant case, the Board
finds that the RO complied with the requirements of the
statute. All relevant evidence identified by the veteran,
including records of private physicians, was obtained and
considered.  In addition, the veteran was afforded a VA
examination to assist in rating his service connected
disability.  With regard to the adequacy of the examination,
the Board notes that the report of the examination reflects
that the VA examiner recorded the past medical history, noted
the veteran's current complaints, conducted a physical
examination, and rendered appropriate diagnoses. For these
reasons, the Board finds that the examination was adequate
for rating purposes.  The Board concludes that all reasonable
efforts were made by VA to obtain evidence necessary to
substantiate the veteran's claim and the Board will proceed
to consider the claim on the merits.

In a July 1972 rating decision, the RO granted service
connection for chronic rhinitis with history of sinusitis and
assigned a 10 percent evaluation, effective from April 1972.
The veteran has asserted a claim for an increased evaluation.

A December 1974 VA examination report shows that the veteran
complained of headaches and the examiner described the
veteran's disability as nasal mucosa,  boggy and
hypertrophic, with fair airspace bilaterally.  X-rays of the
paranasal sinuses showed the frontal, maxillary, ethmoidal
and sphenoidal sinuses to be clear.  The diagnosis was
chronic hypertrophic rhinitis, mild.

Statements from A. S., M.D., the veteran's treating
physician, dated in November 1997 and July 1998, indicate
that the veteran was being treated for allergic rhinitis with
anosmia and sinus congestion with daily attacks of asthma and
resulting headaches.

At a May 1998 VA examination, the veteran reported that he
had developed his allergic problems while stationed in
Germany; he complained that his sinuses were killing him and
he felt like his head was going to explode; he claimed that
he had trouble from his head to his chest, that he had had
dyspnea at rest but mostly on exertion for at least five
years, and that he had had interference with breathing
through his nose for 15 to 16 years.  The veteran stated that
each episode of sinus problems was severe, with wheezing, and
that at times he had an intermittent cough with some sputum
production periodically, but the frequency was unknown.  At
certain times, the veteran reported that he had to go to bed
and rest with severe headaches that required an injection;
when he moved to Massachusetts in 1973, his allergic symptoms
improved somewhat until his return to Michigan in 1997; he
claimed to have had intermittent purulent discharge from his
nose.

Upon examination, there was nasal obstruction in each
nostril; they were red and edematous, with mucous.  There was
tenderness in both maxillary sinuses on percussion, without
any purulent drainage or crusting.  X-rays of the paranasal
sinuses were normal.  Diagnosis included asthmatic bronchitis
secondary to allergies with history of sinus problems.

A facial and sinus computed tomography (CT) scan, performed
in December 1998, showed mild findings of chronic sinusitis
characterized by some inferolateral mucosal polypoid
thickening, predominantly right maxillary antrum, very
minimally left.  It also revealed some mucosal congestion
opacification of the osteomeatal unit on the right at level
of the ethmoid infundibulum, and the adjacent anterior
ethmoid sinuses.  There was modest enlargement of the right
middle nasal turbinate and there was slight deviation of the
nasoseptum to left.

Private treatment records of N. K., M.D. for May 1999 show
that the veteran underwent a septoplasty with endoscopic
sinus surgery the same month.  The procedure corrected the
veteran's deviated septum, improved the nasal passage, and
was apparently successful, without complications.  The post-
operative follow-up report noted that the veteran was doing
well, although the ethmoid sinus lining was still inflamed
and polypoid.  Both the pre- and post-operative diagnosis was
nasal obstruction with chronic sinusitis.

Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Ratings Disabilities (rating schedule).
38 U.S.C.A. � 1155; 38 C.F.R. �� 4.1, 4.2, 4.10 (2000).
Separate diagnostic codes identify the various disabilities
and the criteria for specific ratings.  If two evaluations
are potentially applicable, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that evaluation; otherwise, the
lower rating will be assigned.  38 C.F.R. � 4.7.  After
careful consideration of the evidence, any reasonable doubt
remaining is resolved in favor of the veteran.  38 C.F.R.
� 4.3.

The RO initially evaluated the veteran's allergic rhinitis
under Diagnostic Code 6501, which provided a 10 percent
evaluation for chronic atrophic rhinitis with definite
atrophy of intranasal structure and moderate secretion; a 30
percent evaluation with evidence of moderate crusting and
ozena, and atrophic changes; and a 50 percent evaluation with
evidence of massive crusting, marked ozena and anosmia.  See
38 C.F.R. � 4.97, Diagnostic Code 6501(1996).

The provisions for evaluating respiratory disorders were
revised effective October 7, 1996 and included revision of
the rating criteria for rhinitis and sinusitis.  See 61 Fed.
Reg. 46720 (1996) (codified at 38 C.F.R. � 4.97).  The
revised criteria replaced Diagnostic Code 6501 with
Diagnostic Codes 6522, 6523 and 6524, each of which addresses
a specific kind of rhinitis.  See 38 C.F.R. � 4.97 (2000).
The veteran, through his representative, filed his claim for
an increased rating in December 1997, after the revision of
the rating schedule provisions applicable to his disability,
and the revised provisions of the rating schedule apply in
this case.

The veteran's disability has been evaluated by the RO as 10
percent disabling under to 38 C.F.R. � 4.97, Diagnostic Code
6523 (2000).  Under the provisions of that diagnostic code, a
10 percent evaluation is warranted for bacterial rhinitis
with permanent hypertrophy of turbinates and with greater
than 50 percent obstruction of nasal passage on both sides or
complete obstruction on one side.  A 50 percent evaluation
requires bacterial rhinitis with rhinoscleroma.  38 C.F.R. �
4.97, Diagnostic Code 6523.

38 C.F.R. � 4.97, Diagnostic Code 6524 provides that a 100
percent evaluation is warranted for granulomatous rhinitis
characterized by Wegener's granulomatosis with lethal midline
granuloma; a 20 percent evaluation is warranted for
granulomatous rhinitis with other types of granulomatous
infection.

The Board notes, however, that the veteran's rhinitis has not
been identified by physicians as either bacterial or
granulomatous rhinitis but rather as allergic rhinitis, which
is evaluated under Diagnostic Code 6522.  That diagnostic
code provides that a 10 percent evaluation is warranted for
allergic rhinitis without polyps, but with greater than 50-
percent obstruction of the nasal passage on both sides or
complete obstruction on one side.  A 30 percent evaluation
requires evidence of polyps.  See 38 C.F.R. � 4.97,
Diagnostic Code 6522 (2000).  The veteran contends that
information from a private physician shows that he has
polyps.  However, as noted above, Dr. N. K. found in May 1999
only that the ethmoid sinus lining was still "polypoid",
which is defined as "resembling a polyp".  See Dorland's
Illustrated Medical Dictionary 1331 (28th ed., 1994).  No
physician has found in recent years that the veteran has
nasal polyps.

The rating criteria for various forms of sinusitis provide a
noncompensable rating for sinusitis which is detectable by X-
ray only.  A 10 percent rating is warranted for one or two
incapacitating episodes per year of sinusitis requiring
prolonged (lasting four to six weeks) antibiotic treatment,
or three to six non-incapacitating episodes per year of
sinusitis characterized by headaches, pain, and purulent
discharge or crusting.  A 30 percent evaluation requires
three or more episodes per year of sinusitis requiring
prolonged (lasting four to six weeks) antibiotic treatment or
more than six non-incapacitating episodes per year of
sinusitis characterized by headaches, pain, and purulent
discharge or crusting.  A 50 percent evaluation is provided
following radical surgery with chronic osteomyelitis or near
constant sinusitis characterized by headaches, pain and
tenderness of the affected sinus, and purulent discharge or
crusting after repeated surgeries.

Applying the above criteria to the facts of this case, the
Board finds that the veteran's allergic rhinitis does not
warrant an evaluation in excess of the currently assigned 10
percent.  An evaluation in excess of 10 percent is not
warranted under Diagnostic Code 6522 because no nasal polyps
were found at any time during the course of this appeal.  In
addition, the medical evidence clearly fails to demonstrate
that the veteran has had the three or more episodes per year
of sinusitis requiring prolonged (lasting four to six weeks)
antibiotic treatment or more than six non-incapacitating
episodes per year of sinusitis characterized by headaches,
pain, and purulent discharge or crusting required for a 30
percent evaluation, or that the veteran underwent radical
surgery with the corresponding residuals necessary for a 50
percent evaluation.  38 C.F.R. � 4.97, Diagnostic Codes 6511,
6513.  Thus, the veteran's disability picture concerning
allergic rhinitis does not more nearly approximate the
criteria for a 30 percent evaluation under Diagnostic Codes
6511 or 6513.  In sum, the Board finds that the veteran's
allergic rhinitis is most consistent with a 10 percent
evaluation under Diagnostic Codes 6511 and 6513.

As the veteran's allergic rhinitis with sinusitis has not
been manifested by polyps, bacterial rhinitis, or
granulomatous rhinitis, there is no alternative basis for a
compensable rating for this disorder under 38 C.F.R. � 4.97,
Diagnostic Codes 6523 or 6524 (2000).

The Board notes that among the veteran's complaints have been
complaints of headaches.  However, the grant of service
connection for chronic rhinitis did not include headaches and
the grant of service connection has not been expanded to
include headaches.  The veteran has not filed a claim of
entitlement to service connection or secondary service
connection for headaches. Therefore, the Board has not
considered the rating schedule provisions pertaining to
headaches at this time.

In conclusion, the Board finds that the preponderance of the
evidence is against an evaluation in excess of 10 percent for
the veteran's chronic rhinitis with history of sinusitis
under the revised criteria.  In reaching this decision, the
Board has considered the benefit doubt doctrine; however, as
the preponderance of the evidence is against the veteran's
claim, the doctrine is not applicable.  See 38 U.S.C.A. �
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

The potential application of various provisions of Title 38
of the Code of Federal Regulations (2000) has been considered
whether or not they were raised by the veteran as required by
the holding in Schafrath v. Derwinski, 1 Vet. App. 589, 593
(1991).  The Board has considered whether an extraschedular
evaluation pursuant to the provisions of 38 C.F.R. �
3.321(b)(1) is warranted.  In the instant case, however,
there has been no showing that the veteran's allergic
rhinitis has independently caused marked interference with
employment, necessitated frequent periods of hospitalization,
or otherwise rendered impracticable the application of the
regular schedular standards.  Under these circumstances, the
Board determines that the criteria for assignment of an
extraschedular rating pursuant to 38 C.F.R.
� 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App.
337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).

ORDER

An evaluation in excess of 10 percent for chronic rhinitis
with history of sinusitis is denied.

	JAMES A. FROST
	Acting Veterans Law Judge
	Board of Veterans' Appeals


judge_norm: NANCY I PHILLIPS

text: The appeal is dismissed.

text:
Citation Nr: 0031000
Decision Date: 11/29/00    Archive Date: 12/06/00

DOCKET NO.  99-112 96	)	DATE
	)

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

THE ISSUES

1.  Entitlement to an increased rating for post-traumatic
stress disorder, rated 50 percent disabling.

2.  Entitlement to service connection for hypertension
secondary to post-traumatic stress disorder.

3.  Entitlement to service connection for ulcers secondary to
post-traumatic stress disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

M. Salari, Counsel

INTRODUCTION

The veteran had active duty service from May 1951 to May
1953.  This appeal comes before the Board of Veterans'
Appeals (Board) from a rating decision from the Department of
Veterans Affairs (VA) Regional Office (RO).

FINDINGS OF FACT

1.	The veteran in this case served on active duty from May
1951 to May 1953.

2.	On November 21, 2000, the Board was notified by the
Department of Veterans Affairs (VA) Regional Office,
Montgomery, Alabama, that the veteran died on
September [redacted], 2000.

CONCLUSION OF LAW

Because of the death of the veteran, the Board has no
jurisdiction to adjudicate the merits of this claim.  38
U.S.C.A. � 7104(a) (West Supp. 2000); 38 C.F.R. � 20.1302
(2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the veteran died during the pendency of the
appeal.  As a matter of law, veterans' claims do not survive
their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44
(Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34
(1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This
appeal on the merits has become moot by virtue of the death
of the veteran and must be dismissed for lack of
jurisdiction.  See 38 U.S.C.A. � 7104(a) (West Supp. 2000);
38 C.F.R. � 20.1302 (2000).

In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran.  38 C.F.R.
� 20.1106 (2000).

ORDER

The appeal is dismissed.

      NANCY I. PHILLIPS
	Veterans Law Judge
	Board of Veterans' Appeals

- 3 -


judge_norm: ROBERT P REGAN

text:
Citation Nr: 0032000
Decision Date: 12/07/00    Archive Date: 12/12/00

DOCKET NO.  99-14 087	)	DATE
	)
	)

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

THE ISSUES

1. Entitlement to service connection for an acquired
psychiatric disorder.

2. Entitlement to service connection for ischemic heart
disease.

3. Entitlement to service connection for traumatic arthritis
of the hands.

4. Entitlement to service connection for peripheral
neuropathy of the upper extremities.

REPRESENTATION

Appellant represented by:	American Ex-Prisoners of War,
Inc.

ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel

INTRODUCTION

The veteran served on active duty from August 1943 to
November 1945.  He was a prisoner of war of the German
Government from September 1944 to April 1945.

This case comes to the Board of Veterans' Appeals (Board) on
appeal of a June 1998 rating decision of the St. Petersburg,
Florida, Regional Office (RO) of the Department of Veterans
Affairs (VA).

In the January 1999 notice of disagreement the veteran raised
the issues of service connection for traumatic arthritis of
the shoulders and arms.  These issues have not been developed
for appellate consideration and are referred to the RO for
appropriate action.

REMAND

There has been a significant change in the law during the
pendency of this appeal.  On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000).  Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of the Department of
Veterans Affairs (VA) with respect to the duty to assist, and
supercedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded.  This change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
� 7, subpart (a), 114 Stat. 2096, ___ (2000).  See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).

Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law.  See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, �� 3-4, 114
Stat. 2096, ___ (2000) (to be codified as amended at 38
U.S.C. �� 5102, 5103, 5103A, and 5107).  In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time.  See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Therefore, for these reasons, a remand is required.

In view of the foregoing, the case is remanded for the
following:

The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed.  In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. �� 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.  For further guidance
on the processing of this case in light
of the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance
that is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions.  Any binding
and pertinent court decisions that are
subsequently issued also should be
considered.

When this action is completed, the case should be reviewed by
the RO.  If the benefits sought are not granted, the veteran
and his representative should be furnished a supplemental
statement of the case and afforded a reasonable opportunity to
respond.  Thereafter, the case should be returned to this
Board for further appellate consideration.

The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office.  Kutscherousky v. West, 12 Vet. App. 369
(1999).

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.

	ROBERT P. REGAN
	Veterans Law Judge
	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).

- 4 -


judge_norm: MICHAEL D LYON

text:
Citation Nr: 0101000
Decision Date: 01/16/01    Archive Date: 01/24/01

DOCKET NO.  98-18 063	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a total disability rating for compensation
based on individual unemployability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel

INTRODUCTION

The veteran served on active duty from May 1968 to April
1972.

This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from adverse action by the
Department of Veterans Affairs (hereinafter VA) Regional
Office in Montgomery, Alabama, (hereinafter RO).  In May
2000, the veteran was afforded a videoconference hearing
pursuant to the provisions of 38 U.S.C.A. � 7107(e)(2) (West
1991 & Supp. 2000).  During this hearing, the undersigned
Board Member was located in Washington, D.C., and the veteran
was located at the RO.

The issue of entitlement to an increaed rating for the
veteran's right knee disability has been withdrawn by the
veteran.  See VA Form 21-4138 received in May 2000, and
transcript of personal hearing.

FINDINGS OF FACT

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

2.  Service connection is in effect for residuals of a total
right knee replacement, rated as 60 percent disabling and
degenerative joint disease in the left knee, rated as 10
percent disabling.

3.  The veteran has a college degree and has worked as a
postal carrier and teacher; he is currently employed as a
bank teller.

4.  The veteran's knee disorders do not render it impossible
for the average person to follow a substantially gainful
occupation or render the veteran unable to secure or follow a
substantially gainful occupation consistent with his
occupational experience and education.

5. There is neither an unusual nor an exceptional disability
picture warranting the assignment of a total disability
rating for compensation based on individual unemployability
on an extraschedular basis.

CONCLUSION OF LAW

The criteria for a total disability rating for compensation
based on individual unemployability are not met.  38 U.S.C.A.
� 1155 (West 1991 & Supp. 2000); 38 C.F.R. �� 3.321, 3.340,
3.341, 4.16 (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Total disability ratings for compensation may be assigned
where the schedular rating is less than total, when the
disabled person is unable to secure or follow a substantially
gainful occupation as the result of service-connected
disabilities; provided that, if there is only one such
disability, this disability is ratable at 60 percent or more,
and that if there are two or more disabilities, there is at
least one disability ratable at 40 percent or more, and
sufficient additional disabilities to bring the combined
rating to 70 percent or more.  38 C.F.R. � 4.16(a) (2000).
Veterans who fail to meet these percentage standards but are
nonetheless unemployable by reason of service-connected
disabilities may still be rated as totally disabled. 38
C.F.R. �� 3.321, 3.340, 3.341, 4.16(b) (2000).

In this case, the service connection is in effect for
residuals of a total right knee replacement, rated as 60
percent disabling, and degenerative joint disease in the left
knee, rated as 10 percent disabling.  This essentially
qualifies as one disorder under the applicable provisions as
affecting a single bodily system and affecting both lower
extremities as arthritis is the underlying reason for the
total knee replacement.   Thus, for consideration is whether,
both considering, and notwithstanding the combined rating,
the veteran is "unable to secure or follow a substantially
gainful occupation" as a result of his knee disabilities so
as to warrant a total rating under the provisions of
38 C.F.R. � 4.16(b).  Relevant to this determination are the
provisions of 38 C.F.R. � 3.340, which provide that a total
disability will be considered to exist when there is present
any impairment of mind or body which is sufficient to render
it impossible for the average person to follow a
substantially gainful occupation.

Applying the above to the facts of this case, the veteran has
a college degree and has worked at jobs to include a postal
carrier, teacher and bank teller.  He is currently employed
as a bank teller, although he testified he was on sick leave
due to his knee disability at the time of his May 2000
hearing.  Documentation from the bank at which the veteran is
employed indicated the veteran had missed work on 5 occasions
in one quarter, and that he would be discharged from
employment after his ninth absence.  A private orthopedist
indicated in a May 2000 statement that the veteran was not
employable at his current job as a bank teller due to
limitations caused by his knee disabilities, and that it
would be "very difficult" to find a suitable job due to
"extreme limitations" caused by his knee disabilities.
Documentation from the U.S. Postal Service in 1988 indicated
that ambulatory employment was precluded, and the veteran was
afforded a medical discharge.

Also on file is a notation from a State Rehabilitation
specialist.  It was noted that the veteran had been evaluated
for State services, but had found some employment on his own,
although it was said not suitable to his orthopedic
condition.  The nature of the employment is not described.

While the Board has carefully considered the May 2000
statement referenced above, this examiner did not provide any
basis for a conclusion that all employment, including a
sedentary position, would be precluded by the veteran's knee
disabilities.  It is the responsibility of the Board to
determine the weight to be given to the evidence of record,
to include medical evidence.  See Cathell v. Brown, 8 Vet.
App. 539, 543 (1996); Owens v. Brown, 7 Vet. App. 429, 433
(1995).  In this regard, the Board is free to find that a
medical opinion is of minimal probative value if the
examiner, as in the instant case, fails to explain the basis
for an opinion.  See Guerrieri v. Brown, 4 Vet. App. 467
(1993); Sklar v. Brown, 5 Vet. App. 140 (1993).  Moreover, a
statement received from someone familiar with the veteran's
situation from the VA Medical Center in Birmingham in May
2000 reported that while a "stand-up" job was precluded,
the veteran's employer was directed to accommodate the
veteran with a "sit-down" job.

Given the veteran's educational background, which includes
the attainment of a college degree, and work experience, the
Board finds that the evidence does not demonstrate that he is
precluded from securing and following a substantially gainful
occupation in a sedentary position.  In short, while the
clinical evidence and testimony of record demonstrates that
the veteran has chronic knee pain such that a job requiring
him to be "on his feet" is precluded, the Board finds
insufficient evidence to conclude that sedentary work is
precluded by the veteran's knee disabilities.  To this end,
it is noted that for the veteran to prevail on a claim based
on unemployability, it is necessary that the record reflect
some factor from which it cannot be reasonably concluded that
gainful employment is possible.  See Van Hoose v. Brown, 4
Vet. App. 361 (1993).  The veteran's service-connected knee
disabilities are not so severely disabling as to render the
average person similarly situated to the veteran unable to
secure and follow substantially gainful sedentary employment,
nor does the evidence of record reflect that this condition
would render him individually unable to follow a
substantially gainful occupation.

In reaching the above conclusion, the Board has considered 38
C.F.R. �� 3.321(b), and 4.16(b), which provide that, to
accord justice to the exceptional case where the schedular
evaluations are found to be inadequate, an extraschedular
evaluation commensurate with the average earning capacity due
exclusively to the service-connected disability or
disabilities may be assigned.  The governing norm of these
exceptional cases is a finding that the case presented such
an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of regular schedular standards.  In this
case, the Board finds the evidence in its entirety does not
present such an exceptional or unusual disability picture as
to render impractical the application of regular schedular
standards.  Therefore, the Board finds that he is not
entitled to a total evaluation on under the provisions of 38
C.F.R. � 3.321 or 4.16(b).

ORDER

Entitlement to a total disability rating for compensation
based on individual unemployability is denied.

	MICHAEL D. LYON
	Veterans Law Judge
	Board of Veterans' Appeals