judge_norm: GEORGE E GUIDO JR

text:
Citation Nr: 0815000
Decision Date: 05/06/08    Archive Date: 05/12/08

DOCKET NO.  03-11 060 	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a rating higher than 20 percent for residuals
of a right ankle fracture before September 1, 2003, and a
rating higher than 30 percent from September 1, 2003.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

J. Horrigan

INTRODUCTION

The veteran, who is the appellant, served on active duty from
December 1986 to September 1989 and from March 1991 to April
1992.

This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision in April 2002 of a Department
of Veterans Affairs (VA) Regional Office (RO) that assigned a
100 percent rating under 38 C.F.R. � 4.30 (a temporary total
rating for convalescence) following right ankle surgery by
the VA from December 24, 2001, to April 1, 2002, and at the
termination of the temporary total rating, the RO assigned a
10 percent rating under Diagnostic Codes 5010-5271. While on
appeal, in a May 2002 rating decision, the RO increased the
rating to 20 percent at the termination of the temporary
total rating.

In September 2005, the veteran appeared at a hearing before
the undersigned Acting Veterans Law Judge.  A transcript of
this hearing is of record.

In a decision in September 2006, the Board extended the
period of convalescence following surgery in December 2001,
to July 31, 2002.  The Board also remanded the claim for
increase for further evidentiary development.  As the
requested development has been completed, no further action
is necessary to comply with the Board's remand directive.
Stegall v. West, 11 Vet. App. 268 (1998).

While on appeal in a rating decision in September 2007, the
RO increased the rating to 30 percent disabling, effective
from September 1, 2003, following the termination of the
temporary total rating for convalescence after ankle surgery
in July 2003.

FINDING OF FACT

From August 2002, following the termination of a temporary
total rating for convalescence after right ankle surgery in
December 2001, and before right ankle fusion in July 2003,
the residuals of a right ankle fracture were pain and
dorsiflexion in the range from 0 to 10 degrees and plantar
flexion in the range of 20 to 40 degrees without evidence of
severe foot impairment; from September 2003, following the
termination of a temporary total rating for convalescence
after right ankle fusion in July 2003, the residuals of a
right ankle fracture are ankylosis in dorsiflexion between 0
and 10 degrees without ankylosis in plantar flexion at more
that 40 degrees or angular deformity.

CONCLUSION OF LAW

From August 2002, following the termination of a temporary
total rating for convalescence after right ankle surgery in
December 2001, and before right ankle fusion in July 2003,
the criteria for a rating higher than 20 percent for
residuals of a right ankle fracture have not been met; from
September 2003, following the termination of a temporary
total rating for convalescence after right ankle fusion in
July 2003, the criteria for a rating higher than 30 percent
for residuals of a right ankle fracture have not been met.
38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.71, Diagnostic
Codes 5270, 5217, 5284 (2007).

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. �� 5103, 5103A, and
implemented in part at 38 C.F.R � 3.159, amended VA's duties
to notify and to assist a claimant in developing information
and evidence necessary to substantiate the claim.

Duty to Notify

Under 38 U.S.C.A. � 5103(a), VA must notify the claimant of
the information and evidence not of record that is necessary
to substantiate the claim, which information and evidence VA
will obtain, and which information and evidence the claimant
is expected to provide.  Under 38 C.F.R. � 3.159, VA must
request that the claimant provide any evidence in the
claimant's possession that pertains to the claim.

The VCAA notice requirements apply to all five elements of a
service connection claim.  The five elements are: 1) veteran
status; 2) existence of a disability; 3) a connection between
the veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability.  Dingess
v. Nicholson, 19 Vet. App. 473 (2006).

In a claim for increase, the VCAA notice requirements include
notice of the type of evidence needed to substantiate a
claim, namely, evidence demonstrating a worsening or increase
in severity of the disability and the effect that worsening
has on the claimant's employment and daily life.  Also, if
the Diagnostic Code under which the claimant is rated
contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the VA must provide at least
general notice of that requirement to the claimant.  Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008).

The VCAA notice, as required by 38 U.S.C.A. � 5103(a), must
be provided to a claimant before the initial unfavorable
adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.
112 (2004).

The RO provided post-adjudication VCAA notice by letters,
dated in December 2004 and in September 2006.  The VCAA
notice included the type of evidence needed to substantiate
the claim for a higher rating, namely, evidence indicating an
increase in severity and the effect that worsening has on the
claimant's employment and daily life.

The veteran was notified that VA would obtain VA records and
records of other Federal agencies, and that he could submit
other records not in the custody of a Federal agency, such as
private medical records, or with his authorization VA would
obtain any such records on his behalf.  He was essentially
asked to submit evidence, which would include that in his
possession, in support of his claim.  The notice included the
provisions for the effective date of the claim and for the
degree of disability assignable.

As for content of the VCAA notice, the documents
substantially complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence), of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); of Pelegrini v. Principi,
18 Vet. App. 112 (2004) (38 C.F.R. � 3.159 notice); and of
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (evidence
demonstrating a worsening or increase in severity of a
disability and the effect that worsening has on employment
and daily life, except general notice of the criteria of the
Diagnostic Code under which the claimant is rated, which
consists of a specific measurement or test result).

As the VCAA notice came after the initial adjudication, the
timing of the notice did not comply with the requirement that
the notice must precede the adjudication.  The timing defect
was cured as after the RO provided substantial
content-complying VCAA notice the claim was readjudicated as
evidenced by the supplemental statement of the case, dated in
September 2007.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed.
Cir. 2007) (Timing error cured by adequate VCAA notice and
subsequent readjudication without resorting to prejudicial
error analysis.).

As for the omission in the VCAA notice of the general notice
of the criteria of the Diagnostic Code under which the
claimant is rated, which consists of a specific measurement
or test result, at this stage of the appeal when the veteran
already has notice of the rating criteria as provided in the
statement of the case, there is no reasonable possibility
that further notice of the exact same information would aid
in
substantiating the claim, and any deficiency as to VCAA
compliance is harmless error.   Wensch v. Principi, 15 Vet.
App. 362, 368 (2001) (compliance with the VCAA is not
required if no reasonable possibility exists that any notice
or assistance would aid the appellant in substantiating the
claim).

Duty to Assist

Under 38 U.S.C.A. � 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate the claim. The RO did obtain the relevant VA
records.  A recent VA examination was conducted which provide
sufficient information to rate the right ankle disability.
In the Informal Hearing Presentation, dated in April 2008,
the veteran's representative asked for a reexamination.
Reexamination will be requested whenever there is a need to
verify either the continued existence or the current severity
of a disability.  38 C.F.R. � 3.327(a).  As the VA
examination covered the rating criteria, a reexamination is
not warranted.

As there is no indication of the existence of additional
evidence to substantiate the claim, the Board concludes that
the duty-to-assist provisions of the VCAA have been complied
with.

REASONS AND BASES FOR FINDING AND CONCLUSION

Procedural Background

VA records show that in December 2001 the veteran was treated
for osteomyelitis of the right ankle with irrigation and
debridement.  After the surgery, the veteran was granted a
temporary total rating for convalescence, which was
terminated in July 2002.  At the termination of the temporary
total rating, a 20 percent rating was assigned until the
veteran had fusion of the right ankle in July 2003.  After
the surgery in July 2003, the veteran was also granted a
temporary total rating for convalescence, which was
terminated in September 2003.  At the termination of the
temporary total rating, a 30 percent rating was and is
currently assigned.

Rating Principles

Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4.  The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.

The service-connected residuals of a right ankle fracture may
be rated under 38 C.F.R. � 4.71a, Diagnostic Code 5270 or
Diagnostic Code 5271.

Under Diagnostic Code 5270, the criteria for the next higher
rating, 30 percent, are ankylosis in plantar flexion between
30 degrees and 40 degrees, or in dorsiflexion, between 0
degrees and 10 degrees.  The criteria for the next higher
rating, 40 percent, are ankylosis in plantar flexion at more
than 40 degrees, or in dorsiflexion at more than 10 degrees,
or with abduction, adduction, inversion or eversion
deformity.

Under Diagnostic Code 5271, the 20 percent rating is the
maximum schedular rating for marked limitation of motion of
the ankle.

The normal range of motion of the ankle is from zero to 20
degrees of dorsiflexion and from zero to 45 degrees of
plantar flexion.  38 C.F.R. � 4.71, Plate II.

A Rating Higher than 20 Percent

On the question of whether a rating higher than 20 percent
was warranted from August 2002, following the termination of
a temporary total rating for convalescence after right ankle
surgery in December 2001, and before right ankle fusion in
July 2003, VA records, covering the period from January 2003
to July 2003, show that the veteran was seen frequently as he
was awaiting surgery for fusion of the ankle.  When reported,
dorsiflexion was in the range from 0 to 10 degrees and
plantar flexion was in the range of 20 to 40 degrees.  The
veteran's primary complaint was intractable pain.

As the right ankle disability was already rated 20 percent,
which was the maximum schedular rating for marked limitation
of motion of the ankle under Diagnostic Code 5271, the
criteria for the next higher rating under Diagnostic Code
5270 were ankylosis in plantar flexion between 30 degrees and
40 degrees or in dorsiflexion between 0 degrees and 10
degrees.

In the absence of evidence of ankylosis of the right ankle,
prior to the ankle fusion in July 2003, the criteria for a 30
percent rating under Diagnostic Code 5270 had not been met.
As for other potentially applicable Diagnotic Codes, under
Diagnostic Code 5284, a 30 percent rating was assignable for
a severe foot injury. Except for pain, there was no evidence
of severe loss of balance or propulsion to support a finding
of a severe foot injury.

As the criteria for a rating higher than 20 percent from
August 2002, following the termination of a temporary total
rating for convalescence after right ankle surgery in
December 2001, and before right ankle fusion in July 2003,
under either Diagnostic Code 5271 or Diagnostic Code 5284 had
not been demonstrated, the preponderance of the evidence is
against the claim, and the benefit-of-the-doubt standard of
proof does not apply.  38 U.S.C.A. � 5107(b).

A Rating Higher than 30 Percent

On the question of whether a rating higher than 30 percent
from September 2003, following the termination of a temporary
total rating for convalescence after right ankle fusion in
July 2003, on VA examination in June 2004, the veteran gave a
history of numerous surgeries on his right ankle both during
and after service.  He complained of right ankle pain on a
daily basis as well as some weakness and swelling in the
ankle.  He stated that he could walk about a quarter mile.
Range of motion in the right ankle was reported to be 0
degrees of dorsiflexion and from 0 to 20 degrees of plantar
flexion.  It was noted that the veteran could get the ankle
to a 90 degree angle.  Strength against resistance was 5/5.
No additional loss of motion was noted on repeated range of
motion testing.  X-rays of the right ankle revealed fusion at
the right tibiotaler joint space with degenerative changes.
Inversion and eversion appeared normal.

On VA examination in August 2006, the veteran complained of a
dull aching in the right ankle joint that worsened with
weather changes.  He stated that he had  difficulty when
walking on a grade or standing 30 minutes, that he could no
longer run, and that he could walk about a mile.  It was
noted that the veteran used a brace. Dorsiflexion was
ankylosed at 0 degrees and plantar flexion was to 20 degrees.
Angulation of the ankle was normal.

Under Diagnostic Code 5270, the criteria for the next higher
rating is ankylosis in plantar flexion at more than 40
degrees, or in dorsiflexion at more than 10 degrees, or with
abduction, adduction, inversion or eversion deformity.

As the ankle is not ankylosed in plantar flexion and as there
is no angular deformity, such asabduction, adduction,
inversion or eversion, the criteria for a 40 percent on these
criteria have not been.

The veteran does have ankylosis in dorsiflexion at 0 degrees.
As ankylosis in dorsiflexion is not greater than 10 degrees,
the criteria for a 40 percent based on ankylosis in
dorsiflexion have not been met.

Under Diagnostic Code 5284, a 40 percent rating is assignable
for loss of use of the foot.  Loss of use of the foot means
no effective function remains other than that which would be
equally well served by an amputation stump at the site of
election below the knee with use of a suitable prosthetic
appliance.  The determination will be made on the basis of
the actual remaining function of the foot, namely, acts of
balance and propulsion.  There is no evidence that the actual
remaining function of the foot would be equally well served
by an amputation stump at the site of election below the knee
with use of a suitable prosthetic appliance.

As the criteria for a rating higher than 30 percent from
September 2003, following the termination of a temporary
total rating for convalescence after right ankle fusion in
July 2003, under either Diagnostic Code 5271 or Diagnostic
Code 5284 have not been demonstrated, the preponderance of
the evidence is against the claim, and the benefit-of-the-
doubt standard of proof does not apply.  38 U.S.C.A.
� 5107(b).

Although the Board is precluded by regulation from assigning
an extraschedular rating under 38 C.F.R. � 3.321(b)(1) in the
first instance, the Board is not precluded from considering
whether the case should be referred to the Director of VA's
Compensation and Pension Service.  In this case, the
disability picture is not so exceptional or unusual as to
render impractical the application of the regular schedular
criteria.  For this reason, the Board finds no basis to refer
this case for consideration of an extraschedular rating

ORDER

A rating higher than 20 percent for residuals of a right
ankle fracture before September 1, 2003, and a rating higher
than 30 percent from September 1, 2003, is denied.

____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: ROBERT E SULLIVAN

disposition: denied

condition: tinnitus

text:
Citation Nr: 0816000
Decision Date: 05/15/08    Archive Date: 05/23/08

DOCKET NO.  06-05 908	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin

THE ISSUES

Entitlement to an effective date earlier than April 12, 2005,
for the grant of entitlement to service connection for
tinnitus, to include whether there was clear and unmistakable
error (CUE) in rating decisions dated October 16, 1970, April
9, 1997, and October 15, 1997.

REPRESENTATION

Appellant represented by:	Wisconsin Department of
Veterans Affairs

ATTORNEY FOR THE BOARD

Hallie E. Brokowsky

INTRODUCTION

The veteran had active service from September 1966 to July
1969.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) from rating decisions of the Department of Veterans
Affairs (VA), Regional Office (RO) in Milwaukee, Wisconsin.

A July 2005 rating granted the veteran's claim of entitlement
to service connection for tinnitus, and assigned a 10 percent
disability evaluation, effective April 12, 2005.  In August
2005, the veteran disagreed with the effective date assigned,
and a  rating decision later that month denied the veteran's
claim of entitlement to an earlier effective date.

An October 2005 rating decision concluded that clear and
unmistakable error (CUE) was not present in previous rating
decisions, dated October 1970, April 1997, and October 1997,
which denied the veteran's claim of entitlement to service
connection for tinnitus.

FINDINGS OF FACT

1.  In an October 1970 rating decision, the RO denied service
connection for a ear disorder, and the veteran did not
appeal.

2.  April 1997 and October 1997 rating decisions denied the
veteran's claim of entitlement to service connection for
tinnitus, and the veteran did not appeal.

3.  The October 1970, April 1997, and October 1997 rating
decisions were adequately supported by the evidence of record
at that time and were consistent with the laws and
regulations then in effect; the decisions were not egregious
or fatally flawed.

4.  There is no undebatable error of fact or law in the
October 1970, April 1997, and October 1997 rating decisions
that would change the outcome.

5.  The veteran's most recent application to reopen his claim
for service connection for tinnitus was received by the RO on
April 12, 2005.

CONCLUSIONS OF LAW

1.  The requirements are not met for an effective date prior
to April 12, 2005, for the grant of service connection for
tinnitus.  38 U.S.C.A. �� 5103, 5103A, 5107(b), 5110
(West 2002); 38 C.F.R. �� 3.102, 3.105, 3.155, 3.159, 3.400
(2007).

2.  The October 1970, April 1997, and October 1997 rating
decisions that did not grant service connection for
the veteran's tinnitus were not clearly and unmistakably
erroneous.  38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. ��
3.104, 3.105(a) (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Notice

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a)
(West 2002 & Supp. 2007); 38 C.F.R. � 3.159(b) (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
� 3.159(b)(1).  VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim.  Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).  The Court in Dingess/Hartman holds that the
VCAA notice requirements of 38 U.S.C. � 5103(a) and 38 C.F.R.
� 3.159(b) apply to all five elements of a "service
connection" claim.  As previously defined by the courts,
those five elements include:  (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability.  Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application.  This includes notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.

Here the veteran is appealing the effective date assignment
as to his tinnitus.  In this regard, because the July 2005
rating decision granted the veteran's claim of entitlement to
service connection, such claim is now substantiated.  His
filing of a notice of disagreement as to the April 2005
effective date determination does not trigger additional
notice obligations under 38 U.S.C.A. � 5103(a).  Rather, the
veteran's appeal as to the effective date assignment here
triggers VA's statutory duties under 38 U.S.C.A. �� 5104 and
7105, as well as regulatory duties under 38 C.F.R. � 3.103.
As a consequence, VA is only required to advise the veteran
of what is necessary to obtain the maximum benefit allowed by
the evidence and the law.  This has been accomplished here,
as will be discussed below.

The statement of the case (SOC), under the heading "Pertinent
Laws; Regulations; Rating Schedule Provisions," set forth
the relevant law and regulations for assignment of the
effective date.  In addition, a March 2006 letter explained
the basis for determining an effective date upon the grant of
service connection, in compliance with Dingess/Hartman.
Therefore, the Board finds that the appellant has been
informed of what was necessary to achieve an earlier
effective date for the grant of service-connection for the
disability at issue.  See Bernard v. Brown, 4 Vet. App. 384,
394 (1993) (where the Board addresses a question that has not
been addressed by the agency of original jurisdiction, i.e.,
the RO, the Board must consider whether the veteran has been
prejudiced thereby).  See also Soyini v. Derwinski, 1 Vet.
App. 540 (1991) (a remand is inappropriate where there is no
possibility of any benefit flowing to the veteran).

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S.
Court of Appeals for Veterans Claims held, in part, that a
VCAA notice, as required by 38 U.S.C.A. � 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits.  In the present case, the unfavorable AOJ decision
that is the basis of this appeal was decided after the
issuance of an initial, appropriate VCAA notice.  As such,
there was no defect with respect to timing of the VCAA
notice.

The content of the notice provided to the appellant fully
complied with the requirements of 38 U.S.C.A. � 5103(a) and
38 C.F.R. � 3.159(b) regarding VA's duty to notify.  The
appellant has been provided with every opportunity to submit
evidence and argument in support of his claim and to respond
to VA notice.  Further, the Board finds that the purpose
behind the notice requirement has been satisfied because the
appellant has been afforded a meaningful opportunity to
participate effectively in the processing of his claim.  For
these reasons, it is not prejudicial to the appellant for the
Board to proceed to finally decide this appeal.

With regard to the veteran's claim of CUE in the RO's October
1970, April 1997, and October 1997 rating decisions, the
Board notes that, as will be explained below, the law in this
case, and not the evidence, is dispositive.  The United
States Court of Appeals for Veterans Claims (Court) has held
that where the law, and not the underlying facts or
development of the facts are dispositive in a matter, the
VCAA can have no effect on the appeal.  See Manning v.
Principi, 16 Vet. App. 534, 542 (2002).  See also Smith v.
Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal
limited to interpretation of law); Dela Cruz v. Principi, 15
Vet. App. 143 (2001) (VCAA not applicable where law, not
factual evidence, is dispositive).  Indeed, the Court has
specifically held that the VCAA has no application to
allegations of CUE as a matter of law, regardless of whether
the Board or RO issued the earlier decision in question.
See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en
banc); Parker v. Principi, 15 Vet. App. 407 (2002).  See,
too, 38 U.S.C.A. �� 5109A(a), 7111(a); 38 C.F.R. �� 20.1400-
20.1411.  Therefore, the Board finds that no further action
is necessary under the VCAA on this CUE issue.

Duty to Assist

With regard to the duty to assist, the claims file contains
the veteran's service medical records and reports of VA post-
service treatment and examination.  Additionally, the claims
file contains the veteran's own statements in support of his
claim.  The Board has carefully reviewed such statements and
concludes that he has not identified further evidence not
already of record.  The Board has also perused the medical
records for references to additional treatment reports not of
record for the time period at issue, but has found nothing to
suggest that there is any outstanding evidence with respect
to the veteran's claim.

Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claim.  Essentially, all available evidence
that could substantiate the claim has been obtained.  There
is no indication in the file that there are additional
relevant records that have not yet been obtained.

Legal Criteria

Earlier Effective Date

The statutory and regulatory guidelines for determining the
effective date of an award of disability compensation are set
forth in 38 U.S.C.A. � 5110 (West 2002) and 38 C.F.R. � 3.400
(2007).  Except as otherwise provided, the effective date of
an evaluation and an award of compensation based on an
original claim, a claim reopened after a final disallowance,
or a claim for increase will be the date the claim was
received or the date entitlement arose, whichever is later.
See 38 C.F.R. � 3.400.

The effective date of an award of service connection will be
the day following the date of separation from service - if
the veteran filed a claim within one year after service.
Otherwise, the effective date will be the date of receipt of
his claim.  38 U.S.C.A. � 5110(a), (b)(1); 38 C.F.R. �
3.400(b)(2).

In cases involving new and material evidence, where evidence
other than service department records is received within the
relevant appeal period or prior to the issuance of an
appellate decision, the effective date will be as though the
former decision had not been rendered.  See 38 C.F.R. ��
3.156(b), 3.400(q)(1)(i).  In cases where the evidence is
received after a final disallowance, the effective date is
the date the new claim is received or the date entitlement
arose, whichever is later.  See 38 C.F.R. � 3.400(r),
(q)(1)(ii).  Indeed, the Court has specifically held that
where a prior unappealed decision consequently became final
and binding on the veteran, the effective date of his
eventual subsequent award of service connection is the date
of receipt of his reopened claim - not the date of receipt
of his original claim.  See Sears v. Principi, 16 Vet App 244
(2002); Melton v. West, 13 Vet App 442 (2000).

The applicable statutory and regulatory provisions require
that VA look to all communications from the veteran that may
be interpreted as applications or claims, both formal and
informal, for benefits.  VA is required to identify and act
on informal claims for benefits.  See 38 U.S.C.A. � 5102;
38 C.F.R. � 3.1(p), 3.155(a).  See also Servello v.
Derwinski, 3 Vet. App. 196, 198-200 (1992).  An informal
claim must identify the benefit sought.  See 38 C.F.R.
� 3.155(a).

In order for benefits to be paid under the laws administered
by the VA, a specific claim in the form prescribed by the
Secretary must be filed.  See 38 U.S.C.A. � 5101; 38 C.F.R.
� 3.151(a).  All claims for benefits filed with the VA,
formal or informal, must be in writing.  See Rodriguez v.
West, 189 F.3d 1351 (Fed. Cir. 1999).

In cases involving error, the effective date of an evaluation
is the date on which benefits would have been payable if the
correct decision had been made on the date of the reversed
decision.  See 38 C.F.R. � 3.400(k).

Clear and Unmistakable Error

Previous determinations which are final and binding,
including decisions of service connection, degree of
disability, age, marriage, relationship, service, dependency,
line of duty, and other issues, will be accepted as correct
in the absence of clear and unmistakable error.  Where
evidence establishes such error, the prior decision will be
reversed or amended.  38 C.F.R. � 3.105(a) (2007).

The question of whether CUE is present in a prior
determination is analyzed under a three-pronged test.  First,
it must be determined whether either the correct facts,
as they were known at the time, were not before the
adjudicator (that is, more than a simple disagreement as to
how the facts were weighed and evaluated) or the statutory or
regulatory provisions extant at that time were incorrectly
applied.  Second, the error must be "undebatable" and of
the sort "which, had it not been made, would have manifestly
changed the outcome at the time it was made."  Third, a
determination that there was CUE must be based on the record
and the law that existed at the time of the prior
adjudication in question.  See Damrel v. Brown, 6 Vet. App.
242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310,
313-14 (1992) (en banc)).

According to the Court, CUE is a very specific and rare kind
of error.  "It is the kind of error, of fact or law, that
when called to the attention of later reviewers compels the
conclusion, to which reasonable minds could not differ, that
the result would have been manifestly different but for the
error.  Thus, even where the premise of error is accepted, if
it is not absolutely clear that a different result would have
ensued, the error complained of cannot be, ipso facto, clear
and unmistakable."  See Fugo v. Brown, 6 Vet. App. 40, 43-44
(1993) (citing Russell at 313).

The Court has defined CUE as administrative failure to apply
the correct statutory and regulatory provisions to the
correct and relevant facts.  See Oppenheimer v. Derwinski, 1
Vet. App. 370, 372 (1992).  However, the mere
misinterpretation of facts does not constitute CUE.  See
Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991).  The
Court has also held that the failure to fulfill the duty to
assist does not constitute CUE.  See Crippen v. Brown, 9 Vet.
App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377
(1994).  A disagreement with how the Board evaluated the
facts is inadequate to raise the claim of CUE.  Luallen v.
Brown, 8 Vet. App. 92, 95 (1995).

Analysis

The veteran first filed a claim for service connection for an
ear disorder in June 1970, within one year of his separation
from service.  An October 1970 rating decision denied his
claim.  In November 1970, the RO sent the veteran a letter
notifying him of the unfavorable decision and apprising him
of his procedural and appellate rights, but he did not appeal
that decision.  Consequently, in the absence of CUE (as
explained below), it became final and binding on him based on
the evidence then of record.  See 38 U.S.C.A. � 4005 (within
one year from the date of mailing the notice of the RO's
decision, a notice of disagreement (NOD) must be filed to
initiate an appeal of any issue adjudicated by the RO).  See
also 38 U.S.C.A. � 7105(c) (If an NOD is not filed within one
year of notice of a RO decision, the decision is final and
binding on the veteran based on the evidence then of record).

In January 1997, the veteran submitted a claim of entitlement
to service connection for tinnitus, which was denied in an
April 1997 rating decision.  Following the submission of a
written argument by his representative, the RO issued another
rating decision, in October 1997, again denying his claim of
entitlement to service connection for tinnitus.  Again, the
veteran did not appeal.

More recently, in April 2005, the veteran filed a petition to
reopen this previously denied claim for service connection.
Following receipt of VA medical records and a VA examination,
a July 2005 rating decision granted service connection for
tinnitus and assigned a 10 percent disability rating,
effective April 12, 2005.

The correct effective date in this case is April 12, 2005.
The Board acknowledges that veteran wants a much earlier
effective date, indeed retroactive to 1970.  However, where
there were several prior final RO decisions, including in
October 1970, April 1997, and October 1997, the effective
date for his award does not necessarily relate back to those
earlier decisions or his original claim.  Rather, if, as
here, those decisions became final and binding on him because
they were not timely appealed, then the date of receipt of
his reopened claim will be the effective date of his award.
See Sears v. Principi, 16 Vet. App. 244 (2002).  See also
Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only
a request for  revision based on CUE could result in the
assignment of an effective date earlier than the date of a
final decision).

There is no indication the veteran either appealed any of the
RO's previous rating decisions or specifically acted to
reopen his claim prior to April 12, 2005, and his file does
not contain a written claim, either formal or informal, until
the April 12, 2005 statement from the veteran.  As the
effective date can be no earlier than the date of receipt of
his reopened claim, April 12, 2005 is the correct effective
date in this particular instance.  See 38 C.F.R. 3.400(q),
(r).  See also Melton v. West, 13 Vet. App. 442 (2000).

While the Board is mindful of the veteran's statements that
his tinnitus existed since service, there is no provision for
payment of benefits from separation from service based on his
original claim within one year of service, as the October
1970 RO decision which denied a claim for an ear disorder is
final.  See 38 C.F.R. ��  3.400(b)(2), (r).

The only remaining way the veteran can receive an earlier
effective date is to collaterally attack the RO's initial
previous rating decisions on the basis of CUE.  See 38 C.F.R.
� 3.105(a) (2007), providing an exception to the above rule;
previous determinations that are final and binding will be
accepted as correct "in the absence of clear and
unmistakable error."  Thus, such decisions are not final and
binding where CUE is found.  Moreover, where CUE is
established, "the prior decision will be reversed or
amended."  Id.  And for the purpose of authorizing benefits,
the decision reversing a prior decision on the grounds of CUE
"has the same effect as if the corrected decision had been
made on the date of the reversed decision."  Id.

The veteran and his representative claim there was CUE in the
October 1970 rating decision because the denial of his claim
was predicated solely on the absence of a diagnosis of
tinnitus during his July 1970 VA examination and the absence
of any instance during service of complaints or treatment for
tinnitus.  According to the veteran, the July 1970 VA
examiner and the RO ignored complaints of tinnitus and his
claim for an ear condition.  In the alternative, the veteran
and his representative argue that the April 1997 and October
1997 rating decisions contain CUE because the VA examiner and
the RO failed to consider both the veteran's complaints of
tinnitus and his history of acoustic trauma when denying his
claim of entitlement to tinnitus on the basis of a lack of
medical nexus evidence linking his tinnitus to his military
service.  According to the veteran, this warrants a finding
of CUE; however, this argument is misplaced.

While it is indeed true the RO's October 1970 denial of the
veteran's claim was based on the absence of an objective
finding of his ear disorder during the July 1970 examination,
the Board points out that the veteran did not indicate that
he had tinnitus or that he wished to file a claim for
tinnitus, in either his June 1970 claim for service
connection or at the July 1970 VA examination.  Moreover, the
veteran has not shown that the correct facts, as they were
known at the time, were not before the RO, or that the
statutory and regulatory provisions extant at the time were
incorrectly applied in the October 1970 rating decision which
denied entitlement to service connection for tinnitus.  If it
is not absolutely clear that a different result would have
ensued, the error complained of cannot be clear and
unmistakable.  See Bustos v. West, 179 F.3d 1378 (Fed. Cir.
1999).

While it is indeed true the RO's April 1997 and October 1997
denials of the veteran's claim were based on the absence of
an objective finding relating to his tinnitus during his
military service, the Board points out that the claimed
disability was not shown in the veteran's service medical
records, and the existence of the claimed disability in
service (or a relevant injury) was a necessary requirement
for granting service connection under the law then in effect
(and this remains unchanged).  The only evidence before the
RO at the time of the denial in 1997 was the veteran's
service medical records, which, as pointed out, neither
showed treatment for tinnitus, nor confirmed he had been
diagnosed with tinnitus at his discharge from the military.
The argument that the March 1997 VA examiner's notation of
complaints of tinnitus, but absent a diagnosis of tinnitus or
a relationship between those complaints and his military
service, warranted a finding of service connection by the RO,
is merely a disagreement with the RO's evaluation of the
evidence and, consequently, is not a basis for finding CUE.
See Russell v. Principi, 3 Vet. App. at 313.  In other words,
the veteran and his representative are making an argument
tantamount to the RO should have given more credence and
probative value to the veteran's complaints at a post-service
VA examination than to what was noted (or not documented)
during the separation examination and the objective findings
of the March 1997 VA examination.  However, that
determination was within the RO adjudicator's realm of
discretion, in weighing evidence both for and against the
claim.  To the extent that the veteran's claim encompasses a
request for a reweighing of the evidence, such is
impermissible for a clear and unmistakable error claim.
Luallen v. Brown, 8 Vet. App. 92 (1995); Damrel v. Brown, 6
Vet. App. 242 (1994).

Moreover, even assuming, as alleged, that the March 1997 VA
medical examiner did not fully consider the veteran's
complaints of tinnitus, the Board notes that the RO is not
qualified to make determinations of medical causation without
clear evidence or an opinion demonstrating a causal link.
Likewise, the veteran did not provide any additional evidence
indicating that he had tinnitus (at that time), which was
causally or etiologically related to his service, and,
without such a medical evidence, the RO could not conclude
that the veteran had tinnitus which was causally or
etiologically related to the veteran's service.  Accordingly,
the Board concludes that the RO considered all of the
relevant law and evidence in the April 1997 and October 1997
rating decisions, and these decisions were not clearly and
unmistakably erroneous.

For all of these reasons, the RO's October 1970, April 1997,
and October 1997 rating decisions became final and binding on
the veteran when, unfortunately, he did not file an appeal in
response to them, and therefore could only be reopened with
new and material evidence.  Thus, when the RO more recently
granted his April 12, 2005 petition to reopen this claim, the
date of receipt of that petition is the earliest possible
effective date he can receive.  See Waddell v. Brown, 5 Vet.
App. 454, 456 (1993) (by statute and regulation, the
effective date for service connection based on a reopened
claim cannot be the date of receipt of an original claim
which was previously denied).

ORDER

The claim of entitlement to an effective date prior to April
12, 2005 for service connection of tinnitus is denied,
including whether there was CUE in the October 16, 1970,
April 9, 1997, and October 15, 1997 rating decisions, which
denied the veteran's claim of entitlement to service
connection for tinnitus, is denied.

____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: SHANE A DURKIN

text:
Citation Nr: 0818000
Decision Date: 06/02/08    Archive Date: 06/12/08

DOCKET NO.  06-10 713A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a mental disorder.

REPRESENTATION

Appellant represented by:	Vietnam Era Veterans
Association

ATTORNEY FOR THE BOARD

L. Cramp, Counsel

INTRODUCTION

The veteran served on active duty from June 1974 to November
1975.

This case comes before the Board of Veterans' Appeals (Board)
on appeal of a September 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia.

FINDING OF FACT

A chronic, acquired mental disorder was not present in
service, a psychosis was not manifested within one year of
the veteran's discharge from service, and no current mental
disorder is etiologically related to service.

CONCLUSION OF LAW

A mental disorder was not incurred in or aggravated by active
duty, and the incurrence or aggravation of a psychosis during
such service may not be presumed.  38 U.S.C.A. �� 1101, 1110,
1112, 1131, 1137 (West 2002); 38 C.F.R. �� 3.303, 3.307,
3.309 (2007).

REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran is seeking service connection for a mental
disorder, claimed as mental illness.  The Board will
initially discuss certain preliminary matters, and will then
address the pertinent law and regulations and their
application to the facts and evidence.

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. �� 5103, 5103A (West 2002 &
Supp. 2007), and the pertinent implementing regulation,
codified at 38 C.F.R. � 3.159 (2007), provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim.  They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.  In addition, VA must also request
that the veteran provide any evidence in the claimant's
possession that pertains to the claim.

The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. � 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004).  The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. � 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, � 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")."  Id. at 121.

The timing requirement enunciated in Pelegrini applies
equally to the initial-disability-rating and effective-date
elements of a service-connection claim.  Dingess v.
Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the originating agency provided the
veteran with the notice required under the VCAA, including
notice that he should submit any pertinent evidence in his
possession, by letter mailed in December 2004, prior to its
initial adjudication of the claim.

Although the veteran has not been provided notice of the type
of evidence necessary to establish a disability rating or
effective date for the disability for which service
connection is sought, the Board finds that there is no
prejudice to him in proceeding with the issuance of a final
decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
As explained below, the Board has determined that service
connection is not warranted for a mental disability.
Consequently, no disability rating or effective date will be
assigned, so the failure to provide notice with respect to
those elements of the claim was no more than harmless error.

A review of the veteran's claims file reveals that the
veteran requested and was scheduled for a Travel Board
hearing, to be held on March 22, 2007.  Prior to the
scheduled hearing, the veteran informed VA that he was
incarcerated and that he needed to postpone his hearing until
he was released from prison.  Alternatively, the veteran has
requested that his appeal be put on hold until his release
from prison, at which time he would like to be scheduled for
a hearing.

VA has a statutory obligation to assist the veteran in the
development of his claim. The duty to assist incarcerated
veterans requires VA to tailor its assistance to meet the
peculiar circumstances of confinement, as such individuals
are entitled to the same care and consideration given to
their fellow veterans.  Wood v. Derwinski, 1 Vet. App. 190,
193 (1991).  Nevertheless, the Court has held that the
Secretary is not authorized by statute or regulation to
subpoena the warden at a correctional facility and direct the
release of the appellant from that facility.  See Bolton v.
Brown, 8 Vet. App. 185, 191 (1995).

The veteran's expected release date, as verified by the RO,
is in 2020.  There is simply no provision in the law that
would justify holding an appeal in abeyance for such an
extended period so that a hearing can be held.  The veteran
has been given the opportunity to appear for a hearing.  He
has clearly indicated that he cannot do so.  While the
veteran has not withdrawn his request, in this case, there is
simply no reasonable way in which his desire for a hearing
can be accommodated.  Nevertheless, the veteran has availed
himself of the opportunity to present written argument in
support of his claim, and the Board has reviewed his
submissions.  The Board also notes that the veteran is
represented in this matter.  In this case, the Board believes
that the veteran has been afforded a fair opportunity to
present his case under the difficult circumstances of his
incarceration.

The Board also notes that service treatment records, private
treatment records, records from the correctional facility,
and pertinent VA medical records have been obtained.  Neither
the veteran nor his representative has identified any
outstanding evidence, to include medical records, that could
be obtained to substantiate the claim.  The Board is also
unaware of any such outstanding evidence.

The Board notes that a VA examination has not been conducted
in this case and a VA medical opinion has not been obtained.
The VCAA and the pertinent implementing regulation provide
that the assistance provided by VA shall include providing a
medical examination or obtaining a medical opinion when such
an examination or opinion is necessary to make a decision on
the claim.  In this case, as will be discussed in more detail
below, the Board concludes that, as the evidence does not
establish an in-service injury or disease that may be related
to the claimed mental disorder, an examination or nexus
opinion is not necessary to reach a decision on the claim.

The veteran's in-service symptomatology was ultimately
related to a personality disorder.  In the absence of any
competent evidence that the veteran incurred a recognized
psychiatric or mental disability in service, or demonstrated
symptomatology that was not related to the diagnosed
personality disorder or drug use, a remand for examination
and/or medical opinion is not "necessary."  The duty to
assist is not invoked where no reasonable possibility exists
that such assistance would aid in substantiating the claim.

In sum, the Board is satisfied that any procedural errors in
the RO's development and consideration of the claim were
insignificant and non prejudicial to the veteran.
Accordingly, the Board will address the merits of the claim.

Legal Criteria

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service, but compensation will not be paid for
disability resulting from the abuse of alcohol or drugs.  38
U.S.C.A. �� 1110, 1131.

Personality disorders are not diseases or injuries for VA
compensation purposes.  38 C.F.R. � 3.303(c).

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

Direct service connection may not be granted without medical
evidence of a current disability, medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury.  See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).  A
"current disability" means a disability shown by competent
medical evidence to exist at the time of the award of service
connection.  Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Chelte v. Brown, 10 Vet. App. 268 (1997).

Where a veteran served for at least 90 days during a period
of war or after December 31, 1946, and manifests a psychosis
to a degree of 10 percent within one year from the date of
termination of such service, such disease shall be presumed
to have been incurred or aggravated in service, even though
there is no evidence of such disease during the period of
service.  38 U.S.C.A. �� 1101, 1112, 1137;
38 C.F.R. �� 3.307, 3.309.

Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary.  The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary.  When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; see
also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To
deny a claim on its merits, the evidence must preponderate
against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

Service medical records show that the veteran was seen in the
mental health clinic in November 1974 after being "busted"
for possession of pot.  There was found to be no indication
of mental disease or derangement.  In September 1975, the
veteran complained of a rash on his hands due to nervous
tension.  The provisional diagnosis was hysterical neurosis,
conversion type.  The veteran was sent for further
psychiatric evaluation, which was performed in October 1975.
The veteran stated that he wanted to get out of the Air Force
and feared he would go AWOL.  The resulting diagnosis was
immature personality disorder, chronic and severe.

The report of examination for discharge in November 1975
shows that the veteran was found to have an immature
personality disorder.  No other psychiatric or mental
disorder was diagnosed.

As noted above, service connection may not be granted for
personality disorders.

The veteran has recently stated that he hears voices and
experiences hallucinations.  The post-service medical
evidence shows that he was diagnosed with a psychotic
disorder not otherwise specified in September 2000.  However,
this was described as "drug induced" and secondary to
cocaine use.  There is no indication in the medical evidence
that a psychosis was present within one year of the veteran's
discharge from service or that such a disorder is
etiologically related to service.

While there are other diagnoses in the post-service record,
including dysthymic disorder, there is no medical evidence of
any acquired psychiatric or mental disorder for at least 20
years after discharge.  Moreover, there is no medical opinion
that purports to link any current psychiatric or mental
disability to the veteran's military service.  To the
contrary; the post-service medical evidence appears to relate
the veteran's symptomatology to drug and alcohol use.

In essence, the evidence of a nexus between any current
psychiatric or mental disorder and the veteran's military
service is limited to the veteran's own statements.  This is
not competent evidence of the alleged nexus since laypersons,
such as the veteran, are not qualified to render an opinion
concerning medical causation.  See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992).

Accordingly, the Board must conclude that the preponderance
of the evidence is against the claim.

ORDER

Entitlement to service connection for a mental disability is
denied.

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

 Department of Veterans Affairs


judge_norm: BARBARA B COPELAND

condition: eye

disposition: remanded

text:
Citation Nr: 0819000
Decision Date: 06/09/08    Archive Date: 06/18/08

DOCKET NO.  03-11 056	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for an eye disorder,
claimed as a residual of radiation exposure.

2.  Entitlement to service connection for residuals of a
fracture of the second right toe.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant and a friend

ATTORNEY FOR THE BOARD

G.A. Wasik, Counsel

INTRODUCTION

The veteran had active duty service from May 1954 to July
1957.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2002 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA).

The issues on appeal were last before the Board in August
2006 at which time the claims were denied along with other
claims.  The veteran only appealed the denials of service
connection for an eye disorder and for residuals of a
fracture of the second right toe to the United States Court
of Appeals for Veterans Claims (CAVC or Court).  In a
February 2008 Order, the CAVC remanded that part of the
Board's August 2006 decision which denied service connection
for the eye disorder and for residuals of a fracture of the
second right toe to the Board for further development and re-
adjudication.

The issue of entitlement to service connection for residuals
of a fracture of the second right toe is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.  VA will notify the veteran if additional information is
required on his part.

FINDINGS OF FACT

1.  The veteran was present at atmospheric nuclear testing in
1956.

2.  The veteran's bilateral cataracts are not shown to be
related to service or an incident of service origin, to
include any in-service exposure to ionizing radiation that
occurred.

CONCLUSION OF LAW

The veteran does not have an eye disorder, bilateral
cataracts, that is the result of disease or injury incurred
in or aggravated during active military service, nor is it
shown to be secondary to radiation exposure.  38 U.S.C.A. ��
1110, 1112, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.304,
3.307, 3.309, 3.311, 4.3 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's service treatment records show no complaints or
treatment related to his eyes.  The veteran underwent
cataract surgery on both eyes in April and June 2002.  A July
2003 letter from the Defense Threat Reduction Agency (DTRA)
to the veteran confirmed his participation in atmospheric
nuclear testing conducted in 1956.  The veteran contends that
his cataracts are a result of his exposure to radiation from
atmospheric nuclear testing conducted in 1956.

Of record is an April 2004 letter from the veteran's VA
optometrist, V.D., OD.  Dr.  D.  summarized the veteran's
treatment history as regards his bilateral cataracts,
including two surgeries.  He noted that, while it is possible
that radiation exposure could cause cataracts, he wrote that
he was unable to provide an opinion that the veteran's
radiation exposure caused his cataracts.

Of record is a September 2005 dose estimate prepared by the
DTRA based on the veteran's level of participation in
atmospheric testing, as concurred in by him, and his film
badge dosimeter recordings.  Also of record is a September
2005 Advisory Opinion from VA's Chief Public Health and
Environmental Hazards Officer.  Using the veteran's radiation
dose estimate provided by the DTRA, and the medical
literature regarding cataracts as related to radiation
exposure, the medical opinion was that it is unlikely that
the veteran's bilateral cataracts could be attributed to
exposure to ionizing radiation in service.

Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during active
service.  38 U.S.C.A.  �� 1110, 1131; 38 C.F.R.  � 3.303.
Service connection may also be granted for any injury or
disease diagnosed after service, when all the evidence,
including that pertinent to service, establishes that the
disease or injury was incurred in service.  38 C.F.R.
� 3.303(d).  Generally, service connection requires (1)
medical evidence of a current disability, (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury.  Caluza v.
Brown, 7 Vet. App. 498 (1995).  Further, disability which is
proximately due to or the result of a service-connected
disease or injury is considered service-connected, and when
thus established, this secondary condition is considered a
part of the original condition.  38 C.F.R.  � 3.310(a)
(2007).  It is not enough that an injury or disease occurred
in service; there must be chronic disability resulting from
that injury or disease.  If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity.  38 C.F.R.  � 3.303(b).

The veteran seeks entitlement to service connection for an
eye disorder, bilateral cataracts, claimed as residuals of
exposure to ionizing radiation.

Service connection for conditions claimed to be due to
exposure to ionizing radiation in service can be established
in any of three different ways, which have been outlined by
the Court.  See Davis v Brown, 10 Vet. App. 209, 211 (1997);
Rucker v. Brown, 10 Vet.  App.  67, 71 (1997).

First, there are diseases that are presumptively service
connected in radiation-exposed veterans under 38 U.S.C.A. �
1112(c) and 38 C.F.R. � 3.309(d).  Second, service connection
can be established under 38 C.F.R. � 3.303(d) with the
assistance of the procedural advantages prescribed in 38
C.F.R. � 3.311, if the condition at issue is a radiogenic
disease.  Third, direct service connection can be established
under 38 C.F.R. � 3.303(d) by showing that the disease was
incurred during or aggravated by service without regard to
the statutory presumptions.  See Combee v. Brown, 34 F.3d
1039, 1043-44 (Fed. Cir. 1994).  Under Combee, VA must not
only determine whether a veteran had a disability recognized
by VA as being etiologically related to exposure to ionizing
radiation, but must also determine whether the disability was
otherwise the result of active service.  In other words, the
fact that the requirements of a presumptive regulation are
not met does not in and of itself preclude a claimant from
establishing service connection by way of proof of actual
direct causation.

Diseases presumptively service connected for radiation-
exposed veterans under the provisions of 38 U.S.C.A. �
1112(c) and 38 C.F.R. � 3.309(d)(2) are: leukemia (other than
chronic lymphocytic leukemia), cancer of the thyroid, cancer
of the breast, cancer of the pharynx, cancer of the
esophagus, cancer of the stomach, cancer of the small
intestine, cancer of the pancreas, multiple myeloma,
lymphomas (except Hodgkin's disease), cancer of the bile
ducts, cancer of the gall bladder, primary liver cancer
(except if cirrhosis or hepatitis B is indicated), cancer of
the salivary glands, cancer of the urinary tract; bronchiolo-
alveolar carcinoma; cancer of the bone; cancer of the brain;
cancer of the colon; cancer of the lung; and cancer of the
ovary.  38 U.S.C.A. � 1112(c)(2); 38 C.F.R. � 3.309(d).

Service connection may also be considered based on exposure
to ionizing radiation under the provisions of 38 C.F.R. �
3.311.  To consider service connection under section 3.311,
the evidence must show the following: (1) the veteran was
exposed to ionizing radiation in service; (2) he subsequently
developed a radiogenic disease; and (3) such disease first
became manifest within a period specified by the regulations.
38 U.S.C.A. � 501; 38 C.F.R. � 3.311(b).  This section does
not provide presumptive service connection for radiogenic
diseases, but only outlines a procedure to be followed for
adjudication purposes.  Medical opinions are ultimately the
criteria upon which service connection rests under this
regulation.

Under 38 C.F.R. � 3.311, "radiogenic disease" means a disease
that may be induced by ionizing radiation and shall include
the following: (i) All forms of leukemia except chronic
lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii)
Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver
cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix)
Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer;
(xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv)
Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior
subcapsular cataracts; (xvii) Non-malignant thyroid nodular
disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma;
(xx) Tumors of the brain and central nervous system; (xxi)
Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's
disease; (xxiii) Prostate cancer; and (xxiv) Any other
cancer.  38 C.F.R. � 3.311(b)(2).  Section 3.311(b)(5)
requires that posterior subcapsular cataracts become manifest
6 months or more after exposure.  38 C.F.R.  � 3.311(b)(5).

Section 3.311(a) calls for the development of a radiation
dose assessment where it is established that a radiogenic
disease first became manifest after service, where it was not
manifest to a compensable degree within any applicable
presumptive period specified in either 38 C.F.R. � 3.307 or �
3.309, and where it is contended that the disease is a result
of ionizing radiation in service.  Dose data will be
requested from the Department of Defense in claims based upon
participation in atmospheric nuclear testing and in claims
based upon participation in the American occupation of
Hiroshima or Nagasaki, Japan, prior to July 1, 1946.  38
C.F.R. � 3.311(a)(2).

In the present case, while the appellant is a radiation-
exposed veteran as he participated in Operation REDWING in
1956, a disease listed in 38 C.F.R. � 3.309(d)(2) has not
been manifested.  Cataracts are not among the diseases listed
in 38 C.F.R. � 3.309(d)(2).  Thus, service connection is not
warranted on a radiation presumptive basis.

Nevertheless, as noted above, under the provisions of 38
C.F.R. � 3.311, a veteran who was exposed to ionizing
radiation during active duty service and who develops a
radiogenic disease, such as posterior subcapsular cataracts,
can establish service connection if the medical evidence of
record shows an etiological relationship between such
exposure and the radiogenic disease.  In this regard, the
Board notes that VA operation reports indicate that the
veteran had a nuclear sclerotic cataract and a cortical
cataract in the left eye, but it is not clear what type of
right eye cataract or cataracts were present.  Therefore, the
Board will consider the right eye cataract as though it was a
posterior subcapsular cataract.  In this regard, after the
Defense Threat Reduction Agency prepared a radiation dose
assessment, the Director, Compensation and Pension Service,
requested from the Under Secretary for Health an opinion
concerning the likelihood that the veteran's bilateral
cataracts resulted from exposure to radiation in service.
The Chief Public Health and Environmental Hazards Officer
concluded in a September 2005 report that it was unlikely
that the veteran's bilateral cataracts can be attributed to
exposure to ionizing radiation in service.  The only other
medical evidence which even remotely addresses this issue is
the April 2004 opinion from the veteran's VA optometrist, Dr.
D.  He indicated that while radiation exposure is certainly a
possible causative agent for cataracts and it was a
possibility that his reported radiation exposure could have
contributed to his cataracts, a definitive diagnosis was not
possible.  Thus, this opinion does no more than express a
possibility.  According to this opinion, it is as likely that
radiation exposure was a causative agent for the veteran's
cataracts as it is unlikely that such exposure was a
causative agent.  The Board notes that 38 C.F.R. � 3.102
provides that service connection may not be based on a resort
to speculation or even remote possibility.   The RO
nevertheless submitted the claim for review by the Under
Secretary for Benefits who, in turn, sought the Advisory
Opinion noted above.  That opinion determined that it is
unlikely that the veteran's cataracts could be attributed to
exposure to ionizing radiation in service.

The Board finds that there is medical evidence of current eye
disabilities, bilateral cataracts, and has determined that
there is also evidence of exposure to what has been
characterized as a low dose of ionizing radiation while
participating in atmospheric nuclear weapons testing while in
service.  There is, however, no medical evidence of a nexus
between the current disability and the in-service exposure to
radiation.  As noted, the September 2005 Advisory Opinion
determined that it is unlikely that the veteran's bilateral
cataracts could be attributed to exposure to ionizing
radiation in service, and that opinion is unchallenged by any
competent medical evidence of record.  The veteran has
offered nothing more than his personal opinion that his
cataracts resulted from his exposure to ionizing radiation in
service.  The Board recognizes the sincerity of the
appellant's belief in the merits of his claim; however,
unsupported by medical evidence, a claimant's personal
belief, however sincere, cannot form a factual basis for
granting a claim requiring medical determinations.  See
Espiritu v. Derwinski, 2 Vet.  App.  494 (1992); cf. Moray v.
Brown, 5 Vet. App.  211, 214 (1993).

The Board finds that a referral of the claim for review by an
independent expert as set out under 38 C.F.R. � 3.311(a)(3)
is not required.  This regulation provides for referral of
the case to an independent expert when necessary to reconcile
a material difference between an estimate of dose, from a
credible source, submitted by or on behalf of a claimant, and
dose data derived from official military records.  In the
current case, the September 2005 dose estimate prepared by
the DTRA (0.002 REM) was considerably lower than the dose
estimate based on the film badge dosimeter recordings from
the veteran's active duty service (0.280 REM).  The DTRA
found that it was possible that high heat and humidity in the
test area could have damaged the veteran's dosimeter film,
resulting in an unreliable reading.  The DTRA found that it
was well documented that such effects for the badges were
common during Operation Redwing.  The Board finds the DTRA
reasoning plausible and supported by reasons and bases.  The
veteran has not submitted any evidence indicating that the
findings of the DTRA with regard to his in-service dosimetry
film badge being defective were incorrect or not based in
fact.  The Board finds that, in this case, both dosimetry
estimates were derived from official military records.  There
is no submission of a dosimetry estimate from a "credible
source" submitted by or on behalf of the veteran.  38 C.F.R.
� 3.311(a)(3)(ii), states that a dose estimate shall be
considered from a "credible source" if prepared by a person
or persons certified by an appropriate professional body in
the field of health physics, nuclear medicine or radiology
and if based on analysis of the facts and circumstances of
the particular claim.  The Board notes that referral for such
an independent analysis requires a dose estimate from a
credible source that is different than the dose data derived
from official military records (i.e., the DTRA dose
estimate), and that no such credible source dose estimate has
been submitted by the veteran or on his behalf.  See 38
C.F.R. � 3.311(a)(3).  Accordingly, there is no basis upon
which to conclude that the veteran's claim may be allowed
pursuant to the provisions of 38 C.F.R. � 3.311.

Turing to the third basis under which the claim may be
allowed, direct service connection, the veteran must
establish that exposure during service actually caused the
cataracts which developed years later.  There is no evidence
of an eye disorder, cataracts, having become manifested in
service, or that it was caused by any disability that was
manifested in service or is otherwise related thereto.

Absent medical evidence supporting the argued causal nexus
between the veteran's eye disorder, cataracts, and active
service, the Board is not able to find that the veteran's
cataracts are the result of his active service.    Likewise,
the evidence does not reflect that the veteran's cataracts
are due to any radiation exposure during service.

After review of the record, and for the reasons and bases
expressed above, the Board concludes that the preponderance
of the evidence is against the veteran's claim for
entitlement to service connection for an eye disorder,
bilateral cataracts, as the direct result of his active
service or radiation exposure during active service.

While the veteran contends that his cataracts are a result of
his in-service exposure to radiation from nuclear test
explosions, there is no evidence of record showing that the
veteran has the specialized medical education, training, and
experience necessary to render competent medical opinion as
to the etiology of his claimed disabilities.  Espiritu v.
Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. � 3.159(a)(1)
(2005).

The Board has considered the benefit-of-the-doubt doctrine,
but finds that the record does not provide even an
approximate balance of negative and positive evidence on the
merits. 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of
the above analysis, and after consideration of all the
evidence, the Board finds that the preponderance of the
evidence is against this service connection claim. The
veteran does not have cataracts that are traceable to his
active military service.

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159 and
3.326(a).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a);
38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002).  The VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his or her
possession that pertains to the claim in accordance with 38
C.F.R. � 3.159(b)(1).  VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim.  Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds,
No. 05-7157 (Fed. Cir. Apr. 5, 2006).

The Board notes that the veteran was first apprised of VA's
duties to both notify and assist in correspondence dated in
June 2002, and in additional correspondence dated in August
2002 and August 2004.  (Although the notice required by the
VCAA was not provided until after the RO adjudicated the
appellant's claim, "the appellant [was] provided the content-
complying notice to which he [was] entitled."  Pelegrini, 18
Vet. App. at 122.  Consequently, the Board does not find that
the late notice under the VCAA requires remand to the RO.
Nothing about the evidence or any response to the RO's
notification suggests that the case must be re-adjudicated ab
initio to satisfy the requirements of the VCAA.)

Specifically regarding VA's duty to notify, the notifications
to the veteran apprised him of what the evidence must show to
establish entitlement to service connection for his claimed
disability, including specifically as due to radiation
exposure, what evidence and/or information was already in the
RO's possession, what additional evidence and/or information
was needed from the veteran, what evidence VA was responsible
for getting, and what information VA would assist in
obtaining on the veteran's behalf.  The RO specifically
requested that the veteran provide any evidence or
information he had pertaining to his claim.  The RO also
provided a statement of the case and supplemental statements
of the case reporting the results of its reviews, and the
text of the relevant portions of the VA regulations.  Thus,
any failure to provide timely notice to the veteran has not
resulted in prejudice to him.

In the present appeal, the veteran was provided with notice
of what types of information and evidence were needed to
substantiate his claim, but he was not provided with notice
of the types of evidence necessary to establish an effective
date for the disability on appeal.  Despite the inadequate
notice provided to the veteran on this element, the Board
finds no prejudice to the veteran in proceeding with the
issuance of a final decision.  See Bernard v. Brown, 4 Vet.
App. 384, 394 (1993) (where the Board addresses a question
that has not been addressed by the AOJ, the Board must
consider whether the veteran has been prejudiced thereby).
In that regard, as the Board concludes below that the
preponderance of the evidence is against the appellant's
claim of entitlement to service connection for an eye
disorder, claimed as a residual of radiation exposure, any
questions as to the effective date to be assigned are
rendered moot.

Regarding VA's duty to assist, the RO obtained the veteran's
service treatment records and VA and private medical records,
and obtained the Advisory Opinion discussed above in support
of his claim.  Some private treatment records were
unavailable, either because the treating physician was
deceased, or, as is likely, because records of treatment
nearly 50 years ago are no longer held by the provider.  In a
December 2004 and May 2007 correspondence from the veteran,
he informed the RO that he had no additional evidence to
submit.  VA has no duty to assist that was unmet.

ORDER

Entitlement to service connection for an eye disorder,
bilateral cataracts, claimed as a residual of radiation
exposure, is denied.

REMAND

The veteran has claimed entitlement to service connection for
residuals of a fracture of the second right toe.  In written
statements and hearing testimony, the veteran has maintained
that he sustained a right foot injury in a car accident in
Fitzgerald, Georgia, in 1956, after which he was treated at
the Phoebe Putney Hospital and at Moody Air Force Base.  The
Phoebe Putney Hospital has reported that it has no records
pertaining to the veteran.  He states that a police report
regarding the incident was prepared.  The veteran states that
he sustained a fracture of the second right toe in another
automobile accident in Hampton, Virginia, a few months later
and was treated at Langley Air Force Base.  He states that he
thereafter remained on light duty until his discharge.

As set out in the introduction above, the Board denied the
claim in August 2006.  However, the veteran appealed the
denial to the Court which remanded the issue back to the
Board in February 2008 pursuant to a February 2008 Joint
Motion for Partial Remand.  The February 2008 Joint Motion
indicated that the Board failed to ensure that its prior July
2004 remand directives were followed by the RO.  In July
2004, the Board remanded the right toe claim back to the RO
with the directions that contact should be made with the
appropriate authorities at the Police Departments in
Fitzgerald, Georgia, and Hampton, Virginia and request copies
of accident reports pertaining to any motor vehicle accidents
in 1956 or 1957 in which the veteran was involved as a
passenger.  The Joint Motion noted that no attempt had been
made by the RO to obtain the requested information.

In the case of Stegall v. West, 11 Vet. App. 268 (1998), the
Court held that a remand by the Board imposes upon the
Secretary of the VA a concomitant duty to ensure compliance
with the terms of the remand.  It was further held that where
the remand orders of the Board are not complied with, the
Board errs in failing to insure compliance.  The Court also
noted that its holdings in that case are precedent to be
followed in all cases presently in remand status.  Id.  In
light of the foregoing, this case must be remanded again for
the actions set forth below.

Accordingly, the case is REMANDED for the following action:

1.  Contact the appropriate authorities at
the Police Departments in Fitzgerald,
Georgia, and Hampton, Virginia, and
request copies of accident reports
pertaining to any motor vehicle accidents
in 1956 or 1957 in which the veteran was
involved as a passenger.

2.  After undertaking any development
deemed essential in addition to that
specified above, readjudicate the issue on
appeal.  If the benefit requested on
appeal is not granted to the veteran's
satisfaction, issue a supplemental
statement of the case (SSOC).  The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations pertinent
to the claim currently on appeal.  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 in order.

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

This claim must be afforded expeditious treatment.   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 38 U.S.C.A.  �� 5109B, 7112 (West Supp.  2007).

______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs