judge_norm: J E DAY

text:
Citation Nr: 0006000
Decision Date: 03/06/00    Archive Date: 03/14/00

DOCKET NO.  97-04 645	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased evaluation for service-connected
low back strain, currently rated as 10 percent disabling.

REPRESENTATION

Appellant represented by:	North Carolina Division of
Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. Johnson, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1977 to October
1983.

This matter came to the Board of Veterans' Appeals (Board)
from a December 1996 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Winston-Salem, North
Carolina, which denied the claim for an increased evaluation
for service-connected low back strain.  VA received the
veteran's notice of disagreement in December 1996.  In
January 1997, a statement of the case was issued, and the
veteran submitted his substantive appeal which included a
request for a personal hearing before a member of the Board.
The veteran testified before a hearing officer at the RO in
February 1997.  At that time, it was noted that the hearing
satisfied the veteran's request and that he did not wish to
have an additional hearing before a member of the Board.  See
February 1997 personal hearing transcript at page 1.  In
September 1998, the Board remanded this case for further
development.

FINDINGS OF FACT

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

2.  The veteran's service-connected low back strain is
manifested by complaints of pain and stiffness, comparable to
lumbosacral strain with characteristic pain on motion.

3.  Spasm, unilateral loss of lateral spine motion, or
moderate limitation of lumbar motion are not present and are
not more closely approximated.

CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for
service-connected low back strain have not been met.  38
U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. �� 3.103, 4.7,
4.71a, Diagnostic Codes 5003, 5285, 5286, 5289, 5292, 5293,
5295, (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The service medical records document the veteran's diagnosis
and treatment of low back strain.

A VA examination was conducted in November 1983.  The
examiner reported a diagnosis of chronic lumbar spine pain
with normal physical examination.  X-rays revealed a normal
lumbar spine.

In a December 1993 decision, the RO granted the claim of
service connection for chronic low back strain.  The
disability was rated as 10 percent disabling.

VA records reflect treatment for muscle pain syndrome in
September 1995.  The examiner diagnosed chronic back strain.
X-rays showed that the intervertebral spaces were well
maintained, and there was not any evidence of fracture of
dislocation.

In an undated letter received in October 1996, a
chiropractor, Joseph Democko, reported that the veteran did
not receive treatment in his office.  The veteran had replied
to a free spinal screening offer that appeared in a local
newspaper.  He was not willing to undergo treatment, and the
screening was not in depth enough to obtain a full diagnosis.
The attached report, dated in August 1996, reflects the
veteran's complaints of right leg and hip pain, bilateral arm
and shoulder pain, neck pain, low back pain, and neck
stiffness.  The examination revealed the following: disc
thinning L4-L5, L5-S1; negative for fracture or gross osseous
pathology; and normal alignment.  The report reflects
diagnoses of lumbar disc degeneration, cervical vertebral
segmental dysfunction, cervical neck pain and C-5
subluxation.  The prognosis was that the veteran would
continue to experience low back pain on and off, and that his
condition will worsen without treatment.

A VA examination was conducted in November 1996.  The veteran
reported that he had suffered from a stroke and that his back
has not been as strong since that time.  He was not on
medication, and had not undergone surgery.  On examination,
there were no postural abnormalities or fixed deformities.
Musculature of the back was within the limits of normal
without spasm.  Forward flexion was 90 degrees, backward
extension was 35 degrees, right and left lateral flexion was
40 degrees, and bilateral rotation was 35 degrees.  There was
no objective evidence of pain on examination.  The
neurological examination was within normal limits, and deep
tendon reflexes were normoactive.  The bilateral straight
leg-raising test was negative at 90 degrees.  There was no
sign of radiculopathy on examination.  The examiner reported
that the x-rays did not reveal evidence of degenerative joint
disease/degenerative disk disease.  The examiner reported a
diagnosis of chronic low back strain, by history.

In February 1997, the veteran appeared and testified before a
hearing officer at the RO.  The veteran testified that he
experiences pain down both of his legs, and that it radiates
all the way up to his neck and shoulder.  He has difficulty
turning his head.  There have been instances where the pain
is so severe that it inhibits his walking, and that he has to
stop when he stands up.  There have also been occasions when
the back pain radiates down to his legs to the point that he
has to hold onto something to keep from falling.  The pain is
severe when he first stands up from sitting.  He takes
aspirin on a daily basis, and it provides some relief.  He
feels back pain when sitting, standing, and lying down.  He
has had problems with incontinence for about 10 years.  He is
not employed, and he last worked on a temporary basis as a
cabinet installer. He lost a job in construction because of
the back disability.  The last position he lost due to his
back disability was in 1993.  The veteran also feels that his
back disability contributed to the end of his marriage, and
interferes with his relationship with his children.  In the
past, he had undergone physical therapy.  He is not receiving
treatment currently.  He cannot do any type of back strain or
exercises, and a physician has imposed limits with regard to
lifting.

As noted in the Introduction, the Board remanded this case in
September 1998 for further development, which included
securing records that the Social Security Administration used
to award the veteran disability benefits.  As per the Board's
remand, the records and a copy of the decision were obtained.
However, they show his disability award was based on a
psychiatric disorder, not his service-connected low back
strain.

In the September 1998 remand, the Board also requested that a
VA examination should be scheduled.  That examination was
conducted in May 1999.  The veteran reported that he had
problems associated with bending, but not at any particular
time.  Occasionally, about once a week, he experiences a
sharp shooting pain that lasts for a few seconds and goes
through his back at times when he is at rest.  The pain with
bending usually happens three to four times a week, or every
other day.  It is almost always associated with bending
forward while sitting or bending while standing, and is
associated with stiffness across the back when he attempts to
straighten up.  He notes that there is stiffness in the
morning when he arises, and it takes a few minutes to work it
out.  He benefits from stretching and letting the hot water
from the shower run on his back.  He has taken a variety of
medications in the past, including Tylenol.  There have been
at least four occasions where he has had some pain radiate
down the right leg and with the leg either threatening to
collapse or collapsing.  However, he has not had that problem
since 1990.  During service, he would be placed on profiles
and lost time because of it, but recently that has not been
the case with losing time from work.  He is unemployed, but
says that he does not feel like working around his house or
car about one day a week because of his back trouble.  He was
seen at that same VA facility in 1996, and his back
examination was essentially normal.

The examiner observed that the veteran walked normally, and
that he was carrying a knapsack which he would fling around
with ease and without any obvious evidence of any type of
discomfort.  There was no paravertebral tenderness, or in the
sacroiliac or sciatic notch areas.  He could bend to 90
degrees in the frontal plane, and 40 degrees laterally
bilaterally.  He could heel and toe walk without any
difficulty whatsoever.  Motor and sensory examinations of the
lower extremities were normal.  The examiner commented that
the x-rays taken in 1996 showed a normal examination
completely.  The examiner diagnosed lumbosacral strain with
residuals.

Legal Analysis

The Board finds that the veteran's claim is well grounded.
38 U.S.C.A. � 5107(a) (West 1991).  The United States Court
of Appeals for Veterans Claims (Court) has held that, when a
veteran claims that a service-connected disability has
increased in severity, the claim is well grounded.
Proscelle v. Derwinski, 2 Vet. App. 629 (1992).  The Board is
also satisfied that all relevant facts have been properly
developed and that VA has fulfilled its duty to assist the
veteran as mandated by 38 U.S.C.A. � 5107(a) and 38 C.F.R. �
3.103(a).

Disability evaluations are based upon the average impairment
of earning capacity resulting from a disability.  38 U.S.C.A.
� 1155 (West 1991).  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 (1999).  Consideration is to be given to all other
potentially applicable provisions of 38 C.F.R. Parts 3 and 4,
whether or not they have been raised by the veteran, as
required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the
Court held that in evaluating a service-connected disability,
the Board erred in not adequately considering functional loss
due to pain under 38 C.F.R. � 4.40 and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. � 4.45.  The Court held that a
diagnostic code based on limitation of motion does not
subsume 38 C.F.R. �� 4.40 and 4.45, and that the rule against
pyramiding set forth in 38 C.F.R. � 4.14 does not forbid
consideration of a higher rating based on a greater
limitation of motion due to pain on use, including flare-ups.
The Court remanded the case to the Board to obtain a medical
evaluation that addressed whether pain significantly limits
functional ability during flare-ups or when the joint is used
repeatedly over a period of time.

Service connection is currently in effect for chronic low
back strain, rated 10 percent disabling under the provisions
of 38 C.F.R. � 4.71a, Diagnostic Code 5295 (1999).  Under
Diagnostic Code 5295, a 10 percent rating is assigned for
lumbosacral strain with characteristic pain on motion.  A 20
percent rating is assigned for lumbosacral strain with muscle
spasm on extreme forward bending, loss of lateral spine
motion, unilateral, in standing position.  A 40 percent
rating is assigned for severe lumbosacral strain with listing
of whole spine to opposite side, positive Goldthwaite's sign,
marked limitation of forward bending in standing position,
loss of lateral motion with osteo-arthritic changes, or
narrowing or irregularity of joint space, or some of the
above with abnormal mobility on forced motion.

In this case, it is clear from the veteran's description of
the problems associated with his low back strain, that the
symptoms are chronic, particularly pain and stiffness.
However, the veteran has also reported that he has been able
to achieve relief from his pain by using aspirin, letting the
hot water run on the area while in the shower, and working
the stiffness in his back out when he awakens in the morning.
Although he has complained of radiculopathy, there were no
findings of this noted in the examination reports.  The
findings noted in the VA examination reports do not indicate
that there are manifestations such as muscle spasm on extreme
forward bending, loss of lateral spine motion, unilateral, in
standing position, as required for a 20 percent rating under
Diagnostic Code 5295.  Even when considering the Court's
directives in DeLuca, the actual clinical findings do not
indicate that the disability picture is comparable to the
criteria for a higher rating under the Diagnostic Code
currently applied.  Therefore, there is not a question as to
which evaluation should apply since the current disability
picture closely resembles lumbosacral strain with
characteristic pain on motion, as required for a 10 percent
rating under Diagnostic Code 5295.  38 C.F.R. � 4.7 (1999).

The Board has considered all other potentially applicable
provisions of 38 C.F.R. Parts 3 and 4, whether or not they
have been raised by the veteran, as required by Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).  After a careful review of
the available Diagnostic Codes and the medical evidence of
record, the Board finds that Diagnostic Codes other than
5295, do not provide a basis to assign an evaluation higher
than the 10 percent rating currently in effect.

Although the August 1996 report from the chiropractor
reflects a diagnosis of lumbar disc degeneration, in the
October 1996 letter, the chiropractor explained that the
screening was not in depth enough to obtain a full diagnosis
and that he did not treat the veteran on a regular basis.
Additionally, at the time of a VA examination conducted
approximately three months later, the x-rays did not reveal
evidence of degenerative joint disease/degenerative disk
disease.  Furthermore, the remaining medical evidence of
record does not indicate that the veteran suffers from
degenerative joint disease, or degenerative disk disease.
Therefore, the disability could not be described as
intervertebral disc syndrome (Diagnostic Code 5293), or
degenerative joint disease (Diagnostic Code 5003).

Given the reported ranges of motion noted in the examination
reports, it is reasonable to conclude that the disability
picture does not involve spine ankylosis (Diagnostic Code
5286), or lumbar spine ankylosis (Diagnostic Code 5289).
Also, the reported ranges of motion, even when including the
veteran's complaints of pain and stiffness, do not indicate
that the disability picture resembles or is comparable to
moderate limited lumbar spine motion as required for a 20
percent rating under Diagnostic Code 5292.

Additionally, the record does not indicate that the veteran's
back disability is due to a vertebra fracture.  Therefore,
the Diagnostic Code which contemplates such disability, 5285,
will not be applied.

Here, the preponderance of the evidence is against the
veteran's claim for a rating greater than 10 percent for low
back strain.  Therefore, the application of the benefit of
the doubt doctrine contemplated by 38 U.S.C.A. � 5107 (West
1991) is inappropriate in this case.

ORDER

Entitlement to a rating greater than 10 percent for service-
connected low back strain has not been established, and the
appeal is denied.

	J. E. Day
	Member, Board of Veterans' Appeals


series: legacy

judge_norm: N R ROBIN

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
Citation Nr: 0007000
Decision Date: 03/15/00    Archive Date: 03/23/00

DOCKET NO.  98 14 090	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina

THE ISSUE

The propriety of the initial evaluation for the veteran's
service-connected osteoarthritis of the lumbar spine,
currently evaluated as 10 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

M. L. Wright, Counsel

INTRODUCTION

The veteran had active service from April 1944 to December
1945.  This appeal arises from a May 1998 rating decision of
the Columbia, South Carolina, Regional Office (RO) which
granted service connection for osteoarthritis of the lumbar
spine.  This award was based on a Board of Veterans' Appeals
(Board) decision issued in March 1998.  The service-connected
lumbar spine disability was evaluated as 10 percent
disabling, effective January 31, 1992.  This evaluation was
appealed by the veteran.

In a decision of March 1998, the Board confirmed the 30
percent rating assigned the service-connected right knee
disability, status post replacement, with arthritis, and
assigned a separate 20 percent rating for instability of the
right knee.  While initially the RO incorrectly listed the
separate rating as 10 percent for "arthritis," corrective
action was later taken to reflect the Board's favorable
action.  The veteran has written that he disagrees with the
"10 percent" rating assigned for arthritis of the right
knee.  The Board points out, for his benefit, that currently
his right knee has 2 separate evaluations:  30 percent for
replacement and arthritis; and 20 percent for instability.
In the event he is dissatisfied with these ratings, he is
invited to file a claim for increase.

Finally, the service representative has raised the issue of
entitlement to a claim for a total rating due to individual
unemployability, asserting that the veteran, who is
unemployed, meets the schedular criteria of 60 percent for
the assignment of such rating (disability affecting a single
body system) pursuant to the provisions of 38 C.F.R. � 4.16
(a) (1999).  This matter has not been developed for appellate
review and is referred to the attention of the RO for
appropriate action.

REMAND

The last U. S. Department of Veterans Affairs (VA) orthopedic
examination of record to evaluate the veteran's service-
connected low back disability was conducted in August 1998.
Regarding the range of motion in the veteran's lumbar spine,
the examiner wrote the following:

Active range of motion of the lumbar
sacral spine is limited in flexion
secondary to pain.

The actual measurements of this motion were not provided.
Without such medical findings, the Board is unable to
evaluate this disorder under the criteria found at 38 C.F.R.,
Part 4, Diagnostic Code 5292 (1999) (limitation of motion in
the lumbar spine).  According to the U. S. Court of Appeals
for Veterans Claims (Court), the regulations at 38 C.F.R.
�� 4.40, 4.45, allow increased evaluation of a joint
disability evidencing increased severity resulting from pain
on motion, fatigability, and/or repetitive use.  See DeLuca
v. Brown, 8 Vet. App. 202 (1994).  As the examiner of August
1998 has determined that the veteran has limitation of motion
in the lumbar spine due to pain, another medical examination
is required in order to determine this limitation measured in
degrees.

In its March 1998 decision, the Board granted service-
connection for a low back disorder.  Review of the record
reveals that in addition to arthritis of the lumbar spine,
which has existed, according to the record, for several
decades, the veteran has more recently been diagnosed as
having lumbar spinal stenosis and degenerative disc disease.
In effectuating the Board's grant of service connection, the
low back disorder was characterized by the RO as being
osteoarthritis of the lumbar spine.  Neither the rating
decision nor the statement of the case reflects consideration
of rating schedule criteria applicable to disc pathology.
Such omission suggests that neither lumbar stenosis nor
degenerative disc disease is considered to be part and parcel
of the service-connected low back disorder.  On the other
hand, the veteran was found entitled to temporary total
ratings based on hospitalizations primarily for lumbar spinal
stenosis.  This matter requires clarification, so that the
veteran's service-connected low back disorder can be properly
rated.

In addition, the RO's attention is also directed to the
Court's recent decision in Fenderson v. West, 12 Vet. App.
119 (1999), that held in claims dealing with the original
rating of a service-connected disability, the veteran may be
assigned separate evaluations for separate periods of time
based on the facts found in the case.  In other words, the
veteran is entitled to consideration of "staged ratings"
regarding the evaluation of his low back disability.  While
on remand, the RO should determine if the veteran is entitled
to staged ratings.

Under the circumstances, the undersigned finds that
additional development is required, and the case is REMANDED
to the RO for the following action:

1.  The RO should contact the veteran and
request him to provide the names and
addresses of all healthcare providers who
have treated his low back disability from
August 1998 to the present time.  In the
event he is able to identify any medical
records relating to his lumbar spine
disorder during the period from January
1992 until August 1998, which are not
already of record, he should provide the
names and addresses of the medical care
providers so that these records may be
assembled as well.  The veteran should be
requested to sign and submit appropriate
forms giving his consent for the release
to the VA of any private medical records.
Treatment records from any identified VA
facility should also be obtained.  When
the above requested information and
consent forms are received, the RO should
contact the named facilities and/or
physicians and request them to furnish
legible copies of all records of
treatment.  Once obtained, all records
must be associated with the claims
folder.

2.  Following completion of the above
development, the veteran should be
afforded a VA orthopedic examination.
The purpose of this examination is to
determine the severity of the veteran's
service-connected disorder, now
classified as osteoarthritis of the
lumbar spine, as well as assist in the
determination of the extent of the
service-connected back disorder.  Such
tests as the examining physician deems
necessary should be performed.  The
clinical findings and reasons upon which
the opinions are based should be clearly
set forth.  If the examiner is unable to
form an opinion on any of the requested
findings, he or she should note the
reasons why such an opinion can not be
made.  The claims folder must be made
available to the examining physician
prior to the examination so that he or
she may review pertinent aspects of the
veteran's medical history.  The examiner
must be given a copy of this remand, in
its entirety.  The examiner must express
opinions for the record on each of the
following:

>What is the range of motion in the
veteran's lumbar spine?  The
examiner should make clear on the
examination report what is
considered the normal range of
motion for these joints.

>Does the veteran's lumbar spine
exhibit weakened movement, excess
fatigability, or incoordination
attributable to his service-
connected disability.  If feasible,
these determinations should be
expressed in terms of the degree of
additional range of motion loss or
favorable or unfavorable ankylosis
due to any weakened movement, excess
fatigability, or incoordination.

>Does pain on motion of the
veteran's lumbar spine limit
functional ability during flare-ups
or when these joints are used
repeatedly over a period of time.
This determination should also, if
feasible, be portrayed in terms of
the degree of additional range of
motion loss or favorable or
unfavorable ankylosis due to pain on
use or during flare-ups.

>Does the veteran's low back exhibit
muscle spasm, loss of lateral
motion, osteoarthritis of the lumbar
spine, listing of the whole spine to
the opposite side, positive
Goldthwaite's sign, narrowing or
irregularity of his lumbar joint
spaces, or abnormal mobility on
forced motion?

>Does osteoarthritis of the lumbar
spine produce any neurological
symptoms and, if so, describe such
symptoms?

>To what degree does the veteran's
lumbar spine disability have an
effect on the veteran's social and
industrial capacity?  The degree of
any social and industrial impairment
should be specified and a
description indicating how the
veteran is impaired should be
provided.

>Can the symptoms attributable to
the lumbar spinal stenosis and
degenerative disc disease be
distinguished from those
attributable to osteoarthritis?  If
so, please so distinguish.

3.  Thereafter, the RO must review the
claims folder and ensure that all of the
foregoing development actions have been
conducted and completed in full.  If any
development is incomplete, including if
the requested examination does not
include all opinions requested,
appropriate corrective action is to be
implemented.

4.  Following completion of this action,
the RO should review the evidence and
determine whether the veteran's claims
may now be granted.  In this regard, the
RO should determine if the veteran is
entitled to "staged" ratings since the
date of the award of service connection
for his low back disability.  The RO
should also make a determination on
whether lumbar spine stenosis and/or
degenerative disc disease is part and
parcel of the already service-connected
low back disorder.  If necessary, a
medical opinion should be secured to
address this question.  In the event that
either or both are considered to be part
of the service-connected disorder,
symptoms attributable thereto should be
considered in the evaluation.  If not,
the veteran and his representative should
be fully apprised of that fact and be
given the right to appeal.

5.  If the determination remains adverse
to the veteran, he and his representative
should be furnished with a supplemental
statement of the case (that includes
citation to all pertinent legal authority
and a full discussion of the reasons and
bases for each determination) and be
afforded a reasonable opportunity to
respond before the case is returned to
the Board for further adjudication.
Thereafter, subject to current appellate
procedures, the case should be returned
to the Board for further appellate
consideration, if appropriate.

The veteran need take no further action until he is informed,
but he may furnish additional evidence and argument while the
case is in remand status.  See Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995).
The purpose of this REMAND is to obtain additional
information.  No inference should be drawn regarding the
final disposition of the claims as a result of this action.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West Supp. 1999) (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.

	N. R. ROBIN
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 1999), 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).


judge_norm: C W SYMANSKI

disposition: denied

text:
Citation Nr: 0008000
Decision Date: 03/24/00    Archive Date: 03/28/00

DOCKET NO.  97-30 295	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina

THE ISSUES

1.  Entitlement to service connection for hair loss, as a
chronic disability resulting from an undiagnosed illness.

2.  Entitlement to service connection for sleep disturbances
(to include nightmares, flashbacks and insomnia), as a
chronic disability resulting from an undiagnosed illness.

3.  Entitlement to service connection for swelling of the
hands and feet, as a chronic disability resulting from an
undiagnosed illness.

4.  Entitlement to service connection for symptoms involving
the skin, as a chronic disability resulting from an
undiagnosed illness.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Kathleen Reardon Fletcher, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1981 to
September 1992.  This matter comes before the Board of
Veterans' Appeals (Board) on appeal from an October 1996
rating decision by the Nashville, Tennessee RO which, in
pertinent part, denied entitlement to service connection for
hair loss, sleep disturbances (characterized as nightmares,
flashbacks and insomnia), swelling of the hands and feet, and
symptoms involving the skin (characterized as a body rash on
the buttocks), all as chronic disabilities resulting from
undiagnosed illnesses.

The Board notes that the October 1996 rating decision also
denied entitlement to an increased rating for a right ankle
disability, evaluated as 20 percent disabling.  The veteran
was notified of the RO's decision by letter dated in November
1996, and a notice of disagreement was received by the RO in
January 1997.  The veteran was provided with a statement of
the case in September 1997; however, the issue of entitlement
to an increased rating for a right ankle disability was not
developed for appellate review inasmuch as, according to the
records before the Board, the veteran did not file a
substantive appeal for that issue.  Accordingly, that issue
is not before the Board at this time.

FINDINGS OF FACT

The veteran has been diagnosed as having alopecia areata; her
allegation that her hair loss symptoms are a chronic
disability resulting from an undiagnosed illness is not
supported by evidence that would render the claim plausible.

CONCLUSION OF LAW

The claim for entitlement to service connection for hair loss
as a chronic disability resulting from an undiagnosed illness
is not well grounded.  38 U.S.C.A. � 1117 (West 1991 and
Supp. 1999); 38 C.F.R. � 3.317 (1999); VAOPGCPREC 4-99 (May
3, 1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran served on active duty from April 1981 to
September 1992, to include service in southwest Asia from
October 1990 to March 1991.  A February 1984 service medical
record notes the veteran's complaints of hair loss on the
posterior scalp area for the past several months.  She
reported a frequent use of hair moisturizers and activators.
Examination revealed mild thinning of the hair without
obvious alopecia.  Assessment was mild thinning of the hair
probably secondary to overuse of chemical agents on the scalp
and hair.  It was recommended that the veteran use chemical
agents on her hair less frequently.  Subsequent service
medical records are negative for complaints or findings
related to hair loss.  A June 1992 separation examination
report notes no complaints or findings related to hair loss.
The veteran was found to be physically qualified for
separation from active duty.

October 1992 and May 1993 VA examination reports are negative
for complaints or findings related to hair loss.

A June 1995 VA outpatient treatment record notes the
veteran's complaints of hair loss on the temporal scalp since
1991.  She reported that her mother has thin hair.  Diagnosis
was alopecia areata.  An August 1995 VA outpatient treatment
record notes that the veteran was doing well; she reported
that she had no further hair loss.  The examiner noted that
the veteran's hair was growing back nicely.  Assessment was
resolving alopecia areata.  A July 1996 VA outpatient
treatment report notes the veteran's complaints of worsening
posterior head alopecia.  The veteran reported that her hair
had been thinning for "some time," but added that the hair
loss had increased over the past year.  Examination revealed
thinning hair in a horizontal streak across the occipital
area of the head.  No scaling of the scalp, erythema or
lesions were noted.  Diagnosis was alopecia areata.

An August 1997 VA examination report notes the veteran's
complaints of hair loss of three years.  Diagnosis was
nonscarring hair loss.  The examiner stated that "[t]here
was diffuse nonscarring hair loss consistent with alopecia
areata."

Analysis

The veteran and her representative contend that the veteran
is entitled, pursuant to 38 C.F.R. � 3.317, to service
connection for hair loss as a chronic disability resulting
from an undiagnosed illness.

Title 38 U.S.C.A. Section 1117 provides in pertinent part:

(a) The Secretary may pay compensation
under this subchapter to any Persian
Gulf veteran suffering from a chronic
disability resulting from an undiagnosed
illness (or combination of undiagnosed
illnesses) that
(1) became manifest during service
on active duty in the Armed Forces in
the Southwest Asia theater of operations
during the Persian Gulf War; or
(2) became manifest to a degree of
10 percent or more within the
presumptive period prescribed under
subsection (b).

(b) The Secretary shall prescribe by
regulation the period of time following
service in the Southwest Asia theater of
operations during the Persian Gulf War
that the Secretary determines is
appropriate for presumption of service
connection for purposes of this section.

* * *

(e)  For purposes of this section, the
term ''Persian Gulf veteran'' means a
veteran who served on active duty in the
Armed Forces in the Southwest Asia
theater of operations during the Persian
Gulf War.

38 U.S.C.A. � 1117 (West Supp. 1999).

The regulation implementing the foregoing statute, 38 C.F.R.
� 3.317, provides in relevant part that except as provided
otherwise, VA shall pay compensation in accordance with
chapter 11 of Title 38, United States Code, to a Persian Gulf
veteran who exhibits "objective indications of chronic
disability resulting from an illness or combination of
illnesses" manifested by one or more signs or symptoms, such
as sleep disturbances, cardiovascular signs and symptoms, and
other symptoms, provided that such disability (i) became
manifest either during active duty in the South West Asia
theater of operations during the Gulf War, or to a
compensable degree no later than December 31, 2001, and (ii)
by history, physical examination, and laboratory tests cannot
be attributed to any known clinical diagnosis.  38 C.F.R. �
3.317(a)(1) (1999) (implementing 38 U.S.C.A. � 1117).
"Objective indications of chronic disability" include both
"signs" in the medical sense of objective evidence
perceptible to an examining physician, and other, non-medical
indicators that are capable of independent verification.  38
C.F.R. � 3.317(a)(2) (1999).  Disabilities that have existed
for at least 6 months, and disabilities that exhibit
intermittent episodes of improvement and worsening over a 6-
month period will be considered "chronic."  Id.

The threshold question in a claim for service connection
requires a determination of whether the claim is well
grounded.  38 U.S.C.A. � 5107.  Where there is no well-
grounded claim, there is no duty to assist.  The General
Counsel addressed the issue of what constitutes a well-
grounded claim under the provisions of 38 U.S.C.A. � 1117 in
VAOPGCPREC 4-99 (May 3, 1999).  The conclusion of the General
Counsel is cited below:

A well-grounded claim for compensation
under 38 U.S.C. � 1117(a) and 38 C.F.R.
� 3.317 for disability due to undiagnosed
illness generally requires the submission
of some evidence of: (1) active military,
naval, or air service in the Southwest
Asia theater of operations during the
Persian Gulf War; (2) the manifestation
of one or more signs or symptoms of
undiagnosed illness; (3) objective
indications of chronic disability during
the relevant period of service or to a
degree of disability of 10 percent or
more within the specified presumptive
period; and (4) a nexus between the
chronic disability and the undiagnosed
illness.  With respect to the second and
fourth elements, evidence that the
illness is "undiagnosed" may consist of
evidence that the illness cannot be
attributed to any known diagnosis or, at
minimum, evidence that the illness has
not been attributed to a known diagnosis
by physicians providing treatment or
examination.  The type of evidence
necessary to establish a well-grounded
claim as to each of those elements may
depend upon the nature and circumstances
of the particular claim.  For purposes of
the second and third elements, the
manifestation of one or more signs or
symptoms of undiagnosed illness or
objective indications of chronic
disability may be established by lay
evidence if the claimed signs or
symptoms, or the claimed indications,
respectively, are of a type which would
ordinarily be susceptible to
identification by lay persons.  If the
claimed signs or symptoms of undiagnosed
illness or the claimed indications of
chronic disability are of a type that
would ordinarily require the exercise of
medical expertise for their
identification, then medical evidence
would be required to establish a well-
grounded claim.  With respect to the
third element, a veteran's own testimony
may be considered sufficient evidence of
objective indications of chronic
disability, for purposes of a well-
grounded claim, if the testimony relates
to non-medical indicators of disability
within the veteran's competence and the
indicators are capable of verification
from objective sources.  Medical evidence
would ordinarily be required to satisfy
the fourth element, although lay evidence
may be sufficient in cases where the
nexus between the chronic disability and
the undiagnosed illness is capable of lay
observation.

VAOPGCPREC 4-99 (May 3, 1999).

The veteran's claim concerning service connection for hair
loss as a chronic disability resulting from an undiagnosed
illness is not well grounded.  The claims file indicates that
the veteran has been diagnosed as having alopecia areata.  In
paragraph 15 of its precedential opinion, the General Counsel
stated that

. . . for purposes of establishing a well
grounded claim, we conclude that a
claimant ordinarily must submit some
evidence indicating either that his or
her illness is incapable of diagnosis or,
at minimum, that physicians providing
treatment or examination of the illness
have not attributed it to a known
diagnosis.

VAOPGCPREC 4-99 (May 3, 1999).

The claims file reflects that the veteran's symptoms have
been clinically diagnosed as alopecia areata; therefore, she
has not submitted evidence that these symptoms are the result
of a chronic disability resulting from an undiagnosed
illness.  Thus, the veteran's claim concerning service
connection for hair loss as a chronic disability resulting
from an undiagnosed illness is not well grounded.

ORDER

The claim for entitlement to service connection for hair loss
as a chronic disability resulting from an undiagnosed illness
is denied.

REMAND

The veteran essentially claims that she is entitled to
service connection for sleep disturbances (to include
nightmares, flashbacks and insomnia) and swelling of the
hands and feet, both as manifestations of undiagnosed
illnesses.

In July 1996, the RO issued a letter to the veteran advising,
in part, that she could submit evidence indicating that she
had an undiagnosed illness which began either during active
service in the Southwest Asia theater of operations or within
two years thereafter.  However, in April 1997, the VA
published a new rule, effective retroactively to November 2,
1994, to expand the period within which disabilities
resulting from undiagnosed illnesses suffered by Gulf War
veterans must become manifest to a compensable degree in
order for entitlement for compensation to be established.
The presumptive period was expanded to December 31, 2001.  62
Fed. Reg. 23,139 (April 29, 1997).  The RO should issue a new
development letter to the veteran, reflecting this change in
the presumptive period.  The RO should also review the
veteran's claims for service connection under this revised
regulation.

The Board further notes that under the provisions of VBA
Circular 20-92-29 (Revised July 2, 1997), the RO is required
in claims alleging disability from exposure to environmental
agents while in the Persian Gulf to "undertake all required
development action, including requesting a VA general medical
examination."  Other specialist examinations are to be
ordered as appropriate.  In addition, VBA All-Stations Letter
98-17 (2/26/98) contains mandatory guidelines for disability
examinations of Gulf War veterans outlined in a memorandum
dated February 6, 1998.  The new VA examinations of the
veteran should be conducted in accordance with these
guidelines and the RO is advised to provide the examiner with
a copy of the guidelines prior to scheduling the examination.
The RO is advised to make certain that the examinations
conform precisely to the guidelines before readjudicating the
issues.

In addition, the veteran contends that the RO erred by
failing to grant service connection for symptoms involving
the skin, as a chronic disability resulting from an
undiagnosed illness.

A review of the claims folder shows that an October 1996
rating decision, in pertinent part, denied entitlement to
service connection for symptoms involving the skin
(characterized as a body rash on the buttocks), as a chronic
disability resulting from an undiagnosed illness.  The Board
notes that a notice of disagreement to this action was
received in January 1997; however, no statement of the case
regarding this issue has been issued.  The United States
Court of Appeals for Veterans Claims has held that the RO's
failure to issue a statement of the case is a procedural
defect requiring Remand.  Godfrey v. Brown, 7 Vet. App. 398,
408-10 (1995).  See also, Manlicon v. West, 12 Vet. App. 238
(1999) (in circumstances where a notice of disagreement is
filed, but a statement of the case has not been issued, the
Board must remand the claim to the RO to direct that a
statement of the case be issued).  Further, 38 C.F.R. � 19.9
(1999) provides for the Board's Remand for correction of a
procedural defect.  See also Archbold v. Brown, 9 Vet. App.
124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92).
Therefore, the RO should furnish the veteran with a statement
of the case concerning the aforementioned issue.

In view of the forgoing, the case is REMANDED to the RO for
the following action:

1.  The RO should issue the veteran a new
development letter, in accordance with
VBA Circular 20-92-29 (Revised July 2,
1997) for the claims of service
connection for sleep disturbances (to
include nightmares, flashbacks and
insomnia) and swelling of the hands and
feet as chronic disabilities resulting
from undiagnosed illnesses.  A copy of
this letter, which should be forwarded to
the veteran's last known address, should
be associated with the claims file.

2.  Following completion of the above
development, the veteran should be
afforded a VA examination conforming to
the criteria for conducting Gulf War
examinations as contained in VBA All-
Stations Letter 98-17 (2/26/98).  The
claims folder, including a copy of this
REMAND, must be made available to the
examiner.

a.  The examiner should thoroughly review
the claims file prior to the examination.

b.  The examiner should note and detail
all reported symptoms of sleep
disturbances and symptoms of swelling in
the hands and feet.

c.  The examiner should conduct a
comprehensive general medical
examination, following the AMIE General
Medical Examination worksheet.  The
examiner should provide details about the
onset, frequency, duration, and severity
of all complaints relating to sleep
disturbances and/or swelling in the hands
and feet and state what precipitates and
what relieves them.

d.  The examiner should list all
diagnosed conditions and state which
symptoms of sleep disturbances and/or
symptoms of swelling in the hands and
feet, abnormal physical findings, and
abnormal laboratory test results are
associated with each condition.  If all
symptoms of sleep disturbances and/or
symptoms of swelling in the hands and
feet, abnormal physical findings, and
abnormal laboratory test results are
associated with a diagnosed condition,
additional specialist examinations for
diagnostic purposes are not needed.
Symptom-based "diagnoses" such as (but
not limited to) myalgia, arthralgia, and
headache, are not considered as diagnosed
conditions for compensation purposes.

e.  However, if there are symptoms of
sleep disturbances, and symptoms of
swelling in the hands and feet, abnormal
physical findings, or abnormal laboratory
test results that have not been
determined to be part of a known clinical
diagnosis, further specialist
examinations will be required to address
these findings.  These should be ordered
by the general medical examiner.

f.  In such instances, the examiner
should provide the specialist with all
examination reports and test results,
specify the symptoms sleep disturbances
and/or symptoms of swelling in the hands
and feet, abnormal physical findings, and
abnormal laboratory test results that
have not been attributed to a known
clinical diagnosis and request that the
specialist determine which of these, if
any, can be attributed in this veteran to
a known clinical diagnosis and which, if
any, cannot be attributed in this veteran
to a known clinical diagnosis.

3.  The RO should review the examination
report to ensure that it is adequate for
rating purposes.  If the examination
report is inadequate for any reason, the
RO should return it to the examining
physician and request that all questions
be answered.

4.  The RO should furnish the veteran and
her accredited representative with a
statement of the case concerning the
issue of entitlement to service
connection for symptoms involving the
skin.  If, and only if, a timely
substantive appeal is filed, this issue
should be certified to the Board for
appellate consideration.

5.  Thereafter, the RO should review the
veteran's claims for service connection.
If any claim is denied, the veteran and
her representative should be provided
with an appropriate supplemental
statement of the case that includes all
of the pertinent laws and regulations.

Thereafter, the case should be returned to the Board, if in
order.  The appellant has the right to submit additional
evidence and argument on the 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. 1999) (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.

	C. W. SYMANSKI
	Member, Board of Veterans' Appeals


judge_norm: L W TOBIN

condition: cancer

text:
Citation Nr: 0009000
Decision Date: 04/04/00    Archive Date: 04/11/00

DOCKET NO.  97-17 401A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for non-Hodgkin's lymphoma.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

C. L. Wasser, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1968 to April
1971.

This case comes to the Board of Veterans' Appeals (Board)
from a March 1997 RO decision which denied service connection
for non-Hodgkin's lymphoma.

FINDING OF FACT

The veteran has not submitted competent evidence to show a
plausible claim for service connection for non-Hodgkin's
lymphoma.

CONCLUSION OF LAW

The veteran has not submitted a well-grounded claim for
service connection for non-Hodgkin's lymphoma.  38 U.S.C.A. �
5107(a) (West 1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Factual Background

The veteran served on active duty in the Army from April 1968
to April 1971, including service in Korea from November 1968
to December 1969.  Service personnel records show that he did
not serve in the Republic of Vietnam.

A review of the veteran's service medical records is negative
for non-Hodgkin's lymphoma and for cancer.  On medical
examination performed for separation purposes in February
1971, cancer was not noted.  In a report of medical history
completed in February 1971, the veteran denied a history of
tumor, growth, cyst, or cancer.

Private medical records dated in February 1995 to September
1996 from Columbus County Hospital reflect treatment for a
neck trauma, a large hematoma of the left neck, and
gastroduodenitis.

Private medical records from McLeod Regional Medical Center
dated from July 1995 to August 1995 reflect treatment for a
left supraclavicular mass.

Private medical records dated from July 1995 to March 1996
from R. S. Bolick, M.D., reflect treatment for a left
supraclavicular mass and for malignant lymphoma.

Private medical records dated in March 1996 from M. D. Pavy,
M.D., reflect treatment for a left inguinal nodal
presentation of a non-Hodgkin's lymphoma.

Private medical records from Duke University Medical Center
dated from October 1996 to November 1996 reflect treatment,
including chemotherapy, for diffuse mixed small cleaved and
large cell lymphoma.  A new patient evaluation dated in
October 1996 shows that the veteran was first diagnosed with
lymphoma in August 1995.

In November 1996, the veteran submitted a claim for service
connection for non-Hodgkin's lymphoma.  He asserted that he
was exposed to Agent Orange during service while he was
stationed in Southeast Asia.

In a note dated in November 1996, S. Lilly, DDS, M.D.,
indicated that the veteran had non-Hodgkin's lymphoma.

VA medical records dated from December 1996 to April 1997
reflect treatment, including chemotherapy, for advanced stage
diffuse mixed cell lymphoma (non-Hodgkin's lymphoma).

In a February 1997 form entitled "Request for Disability
Benefits" from the American Fidelity Assurance Company, D.
P. Cohen, M.D., indicated that the veteran had advanced stage
non-Hodgkin's lymphoma and chemotherapy-induced peripheral
neuropathy.

By a statement dated in May 1999, the veteran asserted that
he was exposed to herbicides while he was stationed at Blue
Lancer Valley in Korea during service.  He stated that he
recalled that the defoliant chemicals were stored in 55-
gallon drums, each of which had a yellow band around it.  He
said they applied this substance with hand sprayers, and it
was sometimes blown on him by the wind.  He asserted that his
current non-Hodgkin's lymphoma was caused by exposure to this
chemical.

By a statement dated in January 2000, the veteran's
representative asserted that the veteran was exposed to
herbicides while he served in Korea.  In a March 2000
statement, the veteran's representative asserted that the
case should be remanded to determine if the veteran's unit
was exposed to herbicides during his period of service in
Korea.

II.  Analysis

The veteran claims service connection for non-Hodgkin's
lymphoma which he asserts was incurred during military
service, including as secondary to herbicide exposure.

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.

Service incurrence for certain chronic diseases, including a
malignant tumor (cancer), will be rebuttably presumed if
manifest to a compensable degree within the year after active
service.  38 U.S.C.A. �� 1101, 1112, 1113; 38 C.F.R.
�� 3.307, 3.309.

A veteran who served in Vietnam is presumed to have been
exposed during such service to certain herbicide agents
(e.g., Agent Orange), and service incurrence for specified
diseases (one of which is non-Hodgkin's lymphoma) which
become manifest to a compensable degree within listed periods
of time (at any time after service, in the case of non-
Hodgkin's lymphoma) will be presumed based on exposure to
such agents in Vietnam.  "Service in Vietnam" includes
service in the waters offshore, or service in other locations
if the conditions of service involved duty or visitation in
Vietnam.  38 U.S.C.A. � 1116; 38 C.F.R. �� 3.307(a)(6),
3.309(e), 3.313; McCartt v. West, 12 Vet. App. 164 (1999).

The veteran's claim presents the threshold question of
whether he has met his initial burden of submitting evidence
to show that his claim is well grounded, meaning plausible.
If he has not presented evidence that his claim is well
grounded, there is no duty on the part of the VA to assist
him with his claim, and the claim must be denied.  38
U.S.C.A. � 5107(a); Grivois v. Brown, 6 Vet. App. 136 (1994).
For the veteran's claim for service connection to be
plausible or well grounded, it must be supported by competent
evidence, not just allegations.  Tirpak v. Derwinski, 2 Vet.
App. 609 (1992).

In order for a service connection claim to be well grounded,
it must be supported by competent evidence of a current
disability (medical evidence of a diagnosis), competent
evidence of incurrence or aggravation of a disease or injury
in service (medical evidence or, in some circumstances, lay
evidence), and competent evidence showing causality between
service and a current disability (medical evidence).  Caluza
v. Brown, 7 Vet. App. 498 (1995); Grivois, supra; Grottveit
v. Brown, 5 Vet. App. 91 (1993).

The service medical records from the veteran's 1968-1971
active duty are negative for non-Hodgkin's lymphoma.  Post-
service medical records are negative for a diagnosis of non-
Hodgkin's lymphoma until 1995, more than twenty years after
separation from service.

The veteran has asserted that his current non-Hodgkin's
lymphoma began in service.  As a layman, he is not competent
to render an opinion regarding diagnosis or etiology, and his
statements on such matters do not serve to make his claim
well grounded.  Espiritu v. Derwinski, 2 Vet. App. 492
(1992).

Although the veteran's non-Hodgkin's lymphoma is one of the
listed conditions subject to the law regarding presumptive
service connection, the Agent Orange presumption for service
incurrence does not apply to the veteran's claim for service
connection because he did not serve in the Republic of
Vietnam during the Vietnam era.  Moreover, a well-grounded
claim for service connection on a direct basis is not
presented as the veteran has not submitted any evidence of
actual herbicide exposure plus competent medical evidence
linking his non-Hodgkin's lymphoma with such herbicide
exposure or other incidents of service.  McCartt, supra;
Brock v. Brown, 10 Vet. App. 155 (1997); Caluza, supra.

Absent such competent evidence, as described above, the claim
for service connection for non-Hodgkin's lymphoma, including
as due to herbicide exposure, must be denied as not well
grounded.

ORDER

Service connection for non-Hodgkin's lymphoma is denied.

	L. W. TOBIN
	Member, Board of Veterans' Appeals


judge_norm: ROBERT D PHILIPP

condition: skin

text:
Citation Nr: 0010000
Decision Date: 04/13/00    Archive Date: 04/20/00

DOCKET NO.  96-25 098	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased rating for folliculitis with
tinea cruris, currently evaluated as 10 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Neil Reiter, Counsel

INTRODUCTION

The veteran had verified active duty from December 1963 to
October 1966.  The dates of several months of prior active
service noted on his report of separation have not been
verified.

The present appeal presents the issue of entitlement to a
rating in excess of 10 percent for the period from the
effective date of the grant of service connection for the
veteran's skin disability, or July 13, 1988.  The Board of
Veterans' Appeals (the Board) remanded the case in March 1998
to obtain additional information.  After additional
information was received, the regional office denied the
veteran's claim for an increased rating.  The case was then
returned to the Board.

FINDINGS OF FACT

1.  The regional office has obtained all relevant information
necessary for an equitable disposition of the veteran's
claim.

2.  The veteran's skin disability is subject to exacerbations
and remissions, and during periods of exacerbation,
manifestations include excoriations, itching, and papules on
the groin, back, chest, face, and scalp.

3.  The skin disability is not manifested by constant
exudation or itching, extensive lesions, or marked
disfigurement.

CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for a skin
disability have not been met.  38 U.S.C.A. �� 1155, 5107
(West 1991); 38 C.F.R. �� 3.321, 4.1, 4.2, 4.7, 4.118,
Diagnostic Code 7806 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends, in essence, that he has a chronic and
constant skin condition that causes constant itching and
extensive lesions, and that he meets the criteria for a 30
percent evaluation for this disability.

I.  Background.

The service medical records show that the veteran was treated
for a rash and fungal infection involving the groin, arms,
and legs on several occasions during service.  Department of
Veterans Affairs (VA) outpatient treatment reports for the
period between 1979 and 1987 show that the veteran complained
that his skin condition was subject to exacerbations and
remissions, and that it was worse in summer.  Outpatient
treatment reports indicate that the condition mostly cleared
with treatment with ointments.

On a VA examination in September 1988, the veteran indicated
that he had received treatment at a VA medical facility for a
skin condition in the groin area, and that the cream that was
prescribed only provided temporary relief.  He indicated that
a skin rash appeared over his pelvis, groin, and lower back,
and that his symptoms included pain due to a burning
sensation, itching, and scratching.  He reported that he was
self-employed in his own asphalt and sealing business.

On physical examination, there was brown skin discoloration
with scratch marks and fine scaling over the inguinal region.
The diagnoses included history of mycotic infection of the
axilla, pubic, and inguinal regions, medically treated, with
no residuals noted and tinea cruris with inguinal residuals,
recurrent.

VA outpatient treatment reports for the 1990's were received,
showing treatment for various disabilities, including
orthopedic disabilities, diabetes mellitus, neurological
problems, and psychological problems.

In May 1992, the veteran was evaluated at the dermatology
clinic for a groin rash.  It was noted that he was using
medication.  Physical examination showed mild erythema,
hyperpigmentation, and some pustules on the groin and inner
thigh, with excoriations.  In March 1992, during a home visit
from a nurse, the veteran mentioned that he had a groin rash,
but he was reluctant to show visiting nurses.

On a VA examination in July 1992, the veteran reported that
he was a truckdriver.  On physical examination, there was
some erythema in the inguinal area, with no exudation or
oozing.

VA outpatient treatment reports for 1991 and 1993 fail to
show any findings or complaints relating to the skin
condition.

In February 1994, it was mentioned that he was receiving
medication for folliculitis, and he was requested to
discontinue this medication because of some gastrointestinal
complaints.  In a letter in May 1994, the veteran complained
that he was having increasing problems with a skin condition,
with manifestations on the groin, chest, back, neck and
shoulders, and that this skin condition "comes and goes."  In
November 1994, the veteran's diagnoses included a groin rash
and folliculitis for which he was receiving medication.

Statements were received from persons who knew the veteran,
indicating that the veteran had had a skin problem beginning
in May 1970.

VA outpatient treatment reports for 1995 show several entries
relating to treatment for the skin condition.  In January
1995, there were mild inflammatory papules, with minimal
redness and scaling in the groin folds.  In February 1995, it
was again noted that the veteran had some erythematous
papules over the groin area, with mild erythema over the
scrotum.  It was felt that there was some improvement in his
condition.  In June 1995, he was still receiving treatment
for the skin condition.  In July 1995, it was noted that
physical examination showed some erythema-type papules on the
back and in the groin area.  In August 1995, he still had
some lesions.  In October 1995, physical examination showed
scattered red papules on the back, and several excoriated
papules on the face.  There was also a small pustule on the
penis.  The diagnosis was folliculitis, improving, and tinea
cruris.  In November 1995, there were some erythematous
papules on the torso, with negative involvement of the groin
and penis.  It was felt that the folliculitis was improving
with medication.

On a VA examination in December 1995, the veteran reported
that he had been unemployed for two years because of a back
and leg problem.  He reported that he had a skin condition
that "comes and goes."  He noted that he received powders
and creams for the skin condition, along with Tetracycline
for the folliculitis.  On physical examination, there were
multiple erythematous macular papular lesions, some with
purulent secretions around the anterior thorax.  There were
no nervous manifestations, and no lesions on the arms and
legs.  There was some minimal erythema in the groin area.

VA outpatient treatment reports for 1996 show that in May
1996 there were scattered papules in the hair follicles of
the nape of the neck, and some hyperpigmented erythematous
plaques on the inner thighs.  In August 1996, physical
examination showed some scaling in the groin and no
involvement of the back.  The diagnosis was folliculitis,
resolved, with tinea cruris.

At a hearing at the regional office in August 1996 relating
to the question of an effective date for the grant of service
connection for the skin condition, the veteran stated that he
had constant itching and lesions from the skin condition.

VA outpatient treatment reports for the remainder of 1996,
1997, and 1998 were received.  In December 1996, the veteran
complained that he had had an outbreak of the skin condition
on his face, but that it had cleared prior to his
appointment.  Physical examination showed erythematous
papules on the back, but no pustules.  There were
hyperpigmented patches and mild erythema in the inguinal
folds.  In June 1997, there were lichenified, excoriated
plaques in the groin area.  In September 1997, the veteran
complained of eczema over the back, scalp, chest, upper
abdomen, and groin.  Physical examination showed
erythematous, itchy papules over the back, both armpits,
upper abdomen, and upper arms, with evidence of scratching.
There was also some decreased pigmentation, redness, and
lichenified areas around the groin and both thighs.  The
diagnosis was folliculitis, not well controlled, but with the
veteran having difficulty complying with a medical regimen.
The veteran was provided additional medication and
instructions.

In March 1998, physical examination showed multiple
follicular red papules on the trunk only.  The diagnosis was
folliculitis, stable.  In August 1998, physical examination
showed some excoriated papules on the face, trunk, and
buttocks, with some excoriations on the buttocks.  The
diagnosis was folliculitis, stable.

On a VA examination in October 1998, the veteran stated that
he had had eczema since 1965, which "would come and go."
He was using several medications.  He indicated that his
condition had been about the same for the past 10 years.  On
physical examination, there were numerous follicular papules
on the trunk.  There were also some larger lesions on the
buttocks.  There were some excoriations on the face.  The
diagnosis was folliculitis/eczema, mild to moderate, and
excoriations.  The examiner stated that he could not see any
recent worsening of the condition from the veteran's history
and physical examinations.

II.  Analysis.

A veteran's assertion of an increase in the severity of a
service-connected disability constitutes a well-grounded
claim requiring the VA to fulfill the statutory required duty
to assist under 38 U.S.C.A. � 5107 because it is a new claim
and not a reopened claim.  Proscelle v. Derwinski, 2 Vet.
App. 629, 632 (1992).  The Board is satisfied that all
necessary evidence to reach a conclusion with regard to the
question of an increased rating for the veteran's skin
condition has now been obtained by the regional office.  In
this regard, the veteran's medical history and current
clinical manifestations have been reviewed in the context of
all applicable regulations.

Disability ratings are assigned in accordance with the VA
Schedule for Rating Disabilities and are intended to
represent the average impairment of earning capacity
resulting from disability.  38 U.S.C.A. � 1155.  Separate
diagnostic codes identify the various disabilities.

Unless otherwise provided, skin conditions are rated by
comparison with the criteria for eczema set out under
Diagnostic Code 7806.  38 C.F.R. � 4.118, note following
Diagnostic Code 7819.

Under Diagnostic Code 7806 for eczema, a 30 percent
evaluation will be assigned where there is constant exudation
or itching, extensive lesions, or marked disfigurement.  A 10
percent evaluation will be assigned where there is
exfoliation, exudation or itching, if involving an exposed
surface or extensive area.

In this case, the extensive outpatient treatment reports and
VA examinations between 1988 and 1998 have been reviewed to
determine the appropriate evaluation for the veteran's skin
disability for the period from 1988 to the present.  In
essence, the veteran's skin condition is manifested by
periods of exacerbations and remissions, and the veteran has
so indicated when he states that his skin condition mostly
"comes and goes."

The VA examinations and outpatient treatment reports for the
late 1980's and early 1990's show that the veteran's skin
condition was quite mild, with involvement mainly in the
groin area.  These medical records fail to show constant
exudation or itching, extensive lesions, or marked
disfigurement.

The VA outpatient treatment reports for early 1995 and 1996
showed involvement of some papules and lesions on the back,
face, and groin, with changes of medication having some
success, which was especially noted on the VA examination in
December 1995 and VA outpatient treatment reports in early
and mid-1996.  The VA examination in December 1995 showed
some erythematous, papular lesions on the thorax, and only
minimal erythema in the groin area.  The VA outpatient
treatment reports for May 1996 and August 1996 showed some
hyperpigmented erythematous plaques on the thighs, some
papules on the neck, with some scaling in the groin, but
resolution of the condition on the back.  In December 1996,
there were some papules on the back again, but only some mild
erythema and hyperpigmentation in the inguinal area.  Thus,
while the veteran did have a period of exacerbation of some
of his skin problems in 1995, the disability did return to a
more mild degree with treatment in late 1995 and 1996.  These
years also failed to demonstrate that the veteran's skin
condition could be characterized as showing constant
exudation or itching, extensive lesions, or marked
disfigurement.

The VA outpatient treatment records in mid-1997 showed that
the veteran's condition increased in severity temporarily,
partly due to the veteran's difficulty complying with his
medical regimen, with the physical examination showing
papules on an extended part of his body, including the back,
armpits, upper abdomen, upper arms and groin.  He was given
additional medication and instructions, and by early 1998,
the skin condition was described as stable, with only
multiple papules on the trunk.

In August 1998, he again had papules on the face, trunk, and
buttocks.  On the VA examination, the examiner indicated that
from the veteran's history and from the physical examination
there was no worsening of the veteran's skin condition.
Basically, the examiner found some papules on the trunk,
excoriations on the face, and lesions on the buttocks.
However, the veteran again noted that the condition was
subject to exacerbations and remissions, noting that the
condition "comes and goes."  The various medical records for
1997 and 1998 fail to demonstrate that there was constant
itching or exudation, extensive lesions, or marked
disfigurement.

Basically, the veteran's skin condition over the past dozen
years has been manifested by some exfoliation, some exudation
or itching, including occasional involvement of the face, an
exposed surface, or an extensive area.  Since 1988, the
veteran's condition has been subject to periods of quiescence
(or very mild symptoms) and exacerbations, but the medical
records fail to substantiate a pattern of constant exudation
or itching, extensive lesions, or marked disfigurement.
Thus, the criteria for a rating in excess of 10 percent for
the veteran's skin condition have not been met.

ORDER

Entitlement to a rating in excess of 10 percent for a skin
condition is not established.  The benefit sought on appeal
is denied.

	Robert D. Philipp
	Member, Board of Veterans' Appeals


judge_norm: R F WILLIAMS

benefit: smc

text:
Citation Nr: 0011000
Decision Date: 04/26/00    Archive Date: 05/04/00

DOCKET NO.  98-12 378	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina

THE ISSUE

Entitlement to special monthly compensation based on the need
for aid and attendance, due to poor balance and shortness of
breath.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

J. D. Parker, Counsel

INTRODUCTION

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

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision issued in February
1998 by the Department of Veterans Affairs (VA) Regional
Office (RO) in Columbia, South Carolina.

FINDINGS OF FACT

1.  The veteran's service-connected gunshot wound residuals
consist of: a shell fragment wound of the right calf
manifested by pain on walking and standing, and superficial
peroneal and saphenus nerve paralysis (30 percent); scar and
scar contractions of the right ring finger (10 percent);
partial paralysis of the right ulnar nerve (10 percent); and
postoperative thrombophlebitis of the right leg (30 percent).

2.  There is no competent medical evidence of record to
relate the veteran's severe shortness of breath to a service-
connected disability.

3.  The veteran's service-connected disabilities do not
render him unable to provide for his own daily self-care or
unable to protect himself from the hazards or dangers
incident to his daily environment or so disabled as to need
the regular aid and assistance of another person.

CONCLUSION OF LAW

The criteria for entitlement to special monthly compensation
based on the need for the regular aid and attendance of
another person, based on poor balance and shortness of
breath, are not met.  38 U.S.C.A. �� 1114, 5107 (West 1991);
38 C.F.R. �� 3.350, 3.351, 3.352 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the issue before the Board is predicated on the veteran's
assertions that certain disabilities have increased in
severity so as to warrant special benefits available under
law, the Board finds this claim to be well grounded.
Proscelle v. Derwinski, 2 Vet. App. 629 (1992).  The Board is
also satisfied that all relevant facts have been properly
developed and no further assistance is required to comply
with the duty to assist mandated by 38 U.S.C.A. � 5107(a).
In this regard, the Board notes the representative's
assertion in the September 1999 brief on appeal that the
February 1998 VA special monthly compensation examination was
inadequate for rating purposes because a) the claims folder
should be available for the examiner's review, and b) the
examination should be confined to an evaluation of the
veteran's service-connected disabilities.

With regard to the representative's implied assertion that
the VA examiner who performed the February 1998 examination
did not review the claims folder in conjunction with the
examination, the representative has not proffered any
evidence showing that the examiner did not review the claims
file as part of the examination.  This assertion fails
because "there is a presumption of regularity which holds
that government officials are presumed to have properly
discharged their official duties."  Ashley v. Derwinski, 2
Vet. App. 307, 308-09 (1992) (quoting United States v.
Chemical Foundation, Inc. 272 U.S. 1, 14-15, 71 L. Ed. 131,
47 S. Ct. 1 (1926)).  Unless rebutted by clear evidence to
the contrary, VA is entitled to the benefit of this
presumption.  Id.

With regard to the assertion that a special monthly
compensation examination should be confined to an evaluation
of the veteran's service-connected disabilities, no authority
is cited for this assertion.  The question of whether the
veteran requires the aid and attendance of another person,
and whether the aid and attendance is necessitated by
service-connected disabilities, are relevant and necessary
considerations in adjudication a special monthly compensation
claim.  See 38 U.S.C.A. � 1114 ("if the veteran, as the
result of service-connected disability . . . "). An
examination which accounts for all of the veteran's
disabilities which contribute to such need for aid and
attendance is, therefore, is a relevant consideration for VA
examination.

A November 1996 letter from the office of the veteran's U.S.
senator, which was submitted subsequent to denial of special
monthly compensation based on chronic leg pain, hypertension,
and depressive disorder, indicates the veteran's belief that
he is entitled to increased benefits.  This letter appears to
have been accepted by VA as a claim for special monthly
compensation.

Special monthly compensation benefits are payable to a
veteran who needs regular aid and attendance.  38 U.S.C.A. �
1114(k)-(r); 38 C.F.R. � 3.350.  The need for aid and
attendance is defined as "helplessness or being so nearly
helpless as to require the regular aid and attendance of
another person."  38 C.F.R. � 3.351(b).  Three alternative
criteria defining helplessness are provided.  38 C.F.R. �
3.351(c).  Neither of the first two criteria under section
3.351(c) is applicable to this case because the first
provision deals with situations where the claimant is legally
blind, 38 C.F.R � 3.351(c)(1), and the second provision deals
with situations where the claimant is confined to a nursing
home because of mental or physical incapacity.  38 C.F.R
� 3.351(c)(2).

The third criterion, 38 C.F.R. � 3.351(c)(3), directs
consideration of factors provided in section 3.352(a).  These
factors are: the inability of the veteran to dress or
undress; to keep himself ordinarily clean and presentable;
frequent need of adjustment of any special prosthetic or
orthopedic appliances; inability of the veteran to feed
himself; inability to attend to the wants of nature; or
incapacity, physical or mental, which requires care or
assistance on a regular basis to protect the veteran from the
hazards or dangers incident to his daily environment.  38
C.F.R. � 3.352(a).  It is not required that all of the
disabling conditions enumerated in 38 C.F.R. � 3.352(a) be
found to exist before a favorable rating may be made.  It is
only necessary that the evidence establish that the veteran
is so helpless as to need regular aid and attendance, not
that there is a constant need.  See Turco v. Brown, 9 Vet.
App. 222 (1996).
The evidence of record demonstrates that the veteran's
service-connected gunshot wound residuals consist of: a shell
fragment wound of the right calf manifested by pain on
walking and standing, and superficial peroneal and saphenus
nerve paralysis (30 percent); scar and scar contractions of
the right ring finger (10 percent); partial paralysis of the
right ulnar nerve (10 percent); and postoperative
thrombophlebitis of the right leg (30 percent).  Effective
from December 1946, the veteran's service-connected
disabilities have resulted in a combined disability rating of
60 percent.

At a VA aid and attendance examination in June 1996, the
veteran reported that he lived alone, left home very seldom
because he was afraid to drive for fear he would have an
accident, and had problems with memory and urinary
incontinence.  He was found upon examination to have
"terrible" balance.  The examiner concluded, however, that
the veteran's major problem was his memory, and that he
needed help with household chores and would soon need some
assisted living situation because of his deteriorating
condition.  The diagnoses were chronic depressive disorder,
hypertension with unstable angina and coronary artery bypass
graft, and chronic leg pain secondary to injury.

At a VA aid and attendance examination in February 1998, the
veteran reported that he used a walker and aids of transfer
to and from the bath and used aids in dressing.  He
complained of shortness of breath and poor coordination,
while examination revealed poor fine motor control of both
hands and fingers, manifested by weakness, poor exercise
tolerance, poor balance, and severe shortness of breath.  The
diagnoses were congestive heart failure, volume overload, and
pulmonary hypertension.

To warrant special monthly compensation based on the need for
the regular aid and attendance of another person, the
evidence must show such is attributable to service-connected
disabilities.  Only symptomatology associated with service-
connected disability may be considered in a determination of
whether special monthly compensation is warranted.  See
38 C.F.R. � 4.14 (1999).  The veteran's non-service-connected
disabilities include congestive heart failure, volume
overload, pulmonary hypertension, hypertension with unstable
angina, coronary artery bypass graft, personality disorder,
depressive disorder, and status post transurethral resection
of the prostate in 1989 with chronic urinary incontinence.
The Board notes that the veteran's diagnosed non-service-
connected disorders result in disability, including mental
disorder, which may not be considered in determining whether
aid and attendance is warranted.  The June 1996 VA
examination indicated the veteran's major problem was his
memory impairment, which is due to a non-service-connected
disorder.  With regard to the veteran's severe shortness of
breath, there is no competent medical evidence of record to
relate the veteran's severe shortness of breath to a service-
connected disability.

The Board notes that the June 1996 VA examination appeared to
associate the loss of balance to the veteran's service-
connected lower right leg injury, including, perhaps, the
findings of some atrophy.  The examination, however, did not
indicate that the loss of balance, either by itself or in
conjunction with other service-connected disability, rendered
the veteran helpless or so nearly helpless as to require the
regular aid and attendance of another person.  38 C.F.R. �
3.351(b).  The pain and imbalance associated with the
veteran's service-connected right leg disabilities was only
one of several disorders noted or found upon examination, and
was listed last in order on the June 1996 VA examination
report.  The February 1998 VA examination noted loss of
balance but did not include it as a diagnosis.

The Board finds that the weight of the evidence is against
the veteran's claim.  While the veteran may be in need of the
aid and attendance of another person, the evidence does not
show that such need is due to his service-connected
disabilities.  The veteran's service-connected disabilities
alone do not render him unable to provide for his own daily
self-care or protect himself from the hazards or dangers
incident to his daily environment or render him so disabled
as to need the regular aid and assistance of another person.
For these reasons, the Board must find that special monthly
compensation based on the need for the regular aid and
attendance of another person, due to poor balance and
shortness of breath, is not warranted.  38 U.S.C.A. �� 1114,
5107; 38 C.F.R. �� 3.350, 3.352.

ORDER

Special monthly compensation based on the need for the
regular aid and attendance, due to poor balance and shortness
of breath, is denied.

	R. F. WILLIAMS
	Member, Board of Veterans' Appeals

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