judge_norm: J SHERMAN ROBERTS

condition: headache

text:
Citation Nr: 9926000
Decision Date: 09/13/99    Archive Date: 09/21/99

DOCKET NO.  98-07 582	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for headaches,
blackouts, memory loss, poor vision and a seizure disorder.

2.  Entitlement to service connection for headaches,
blackouts, memory loss, poor vision and a seizure disorder as
secondary to a service-connected scar, residuals of a head
injury.

REPRESENTATION

Appellant represented by:	Alabama Department of Veterans
Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

P.M. DiLorenzo, Counsel

INTRODUCTION

The veteran served on active duty from April 1954 to March
1956 and from October 1962 to October 1965.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama, that denied the above-noted claims.

In June 1999, a video-conference hearing was held before the
undersigned, who is the Board member making this decision and
who was designated by the Chairman to conduct that hearing,
pursuant to 38 U.S.C.A. � 7107(c) (West Supp. 1999).

In July 1999, the veteran submitted a written statement from
Chester B. Primm, M.D. directly to the Board.  The veteran
did not waive the RO's consideration of this evidence.
However, this case need not be remanded to the RO for
consideration and the issuance of a supplemental statement of
the case in accordance with 38 C.F.R. � 20.1304(c) because
the additional statement from Dr. Primm (dated in July 1999)
is cumulative of a prior statement prepared by him in July
1997, which had been considered by the RO.  See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).

The veteran has also claimed entitlement to service
connection for a psychiatric disorder as secondary to
service-connected tinnitus.  This claim has not yet been
adjudicated and is referred to the RO for appropriate action.

FINDINGS OF FACT

1.  The veteran's claim for direct service connection for
headaches, blackouts, memory loss, poor vision and a seizure
disorder is plausible, and the RO has obtained sufficient
evidence for correct disposition of this claim.

2.  The preponderance of the evidence is against the claim
that headaches, blackouts, memory loss, poor vision and a
seizure disorder resulted from disease or injury in service.

3.  No medical evidence has been presented or secured
establishing a relationship between the service-connected
scar, residuals of a head injury and any headaches,
blackouts, memory loss, poor vision or seizure disorder.

CONCLUSIONS OF LAW

1.  The veteran has presented a well-grounded claim for
direct service connection for headaches, blackouts, memory
loss, poor vision and a seizure disorder, and VA has
satisfied its statutory duty to assist him in developing
facts pertinent to this claim.  38 U.S.C.A. � 5107(a) (West
1991).

2.  The veteran is not entitled to service connection for
headaches, blackouts, memory loss, poor vision and a seizure
disorder.  38 U.S.C.A. �� 1110, 1112, 1131, 1137 (West 1991);
38 C.F.R. �� 3.102, 3.303, 3.304, 3.307, 3.309 (1998).

3.  The claim for service connection for headaches,
blackouts, memory loss, poor vision and a seizure disorder as
secondary to a service-connected scar, residuals of a head
injury, is not well grounded and there is no statutory duty
to assist the veteran in developing facts pertinent to this
claim.  38 U.S.C.A. � 5107(a) (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual background

Service medical records from the veteran's first period of
active duty are negative for any complaints or findings of
headaches, blackouts, memory loss, vision problems or
seizures.  On separation examination in March 1956, the
veteran denied frequent or severe headaches, dizziness or
fainting spells, eye trouble, epilepsy or fits, and loss of
memory or amnesia.  His vision was 20/20 bilaterally.
Examination of the eyes and psychiatric and neurologic
examination were normal.

Service medical records from the veteran's second period of
active duty revealed that his vision was 20/30 in the right
eye (corrected to 20/20) and 20/25 in the left eye (corrected
to 20/20) on entrance examination in October 1962.

In April 1965, the veteran complained of swelling of his
eyes, more on the right.  There was swelling and erythema of
the lids and skin around the right eye medially.  Pertinent
diagnoses included doubt dacryocystitis.  On the following
day, the examiner's impression was probable dacryocystitis
and questionable abscessed lacrimal sac.

In June 1965, the veteran complained, inter alia, of a
frontal headache like a band around his head while on guard
duty the previous day.  Examination of the fundi showed
normal discs.  The examiner's impression was an anxiety
reaction.  On the following day, the veteran sought treatment
for a cough, stuffy nose and bifrontal headache since the
morning.  The examiner's impression was an upper respiratory
infection (URI), mild sinusitis.  The veteran expressed the
same complaints two days later.  The examiner again diagnosed
a mild URI.

On separation examination in September 1965, the veteran
complained of head and eye pain, frequent or severe
headaches, dizziness or fainting spells, and eye trouble.  He
denied any epilepsy or fits and loss of memory or amnesia.
He reported that he suffered a head injury in 1963 but was
not hospitalized.  The veteran stated that the pain began in
his head and occasionally went to the right upper abdomen.
He reportedly had pain in his chest that came from his head.
Examination of the eyes and psychiatric and neurologic
examination were normal.  Vision was 20/20 bilaterally.  The
veteran was referred for an ear, nose and throat (ENT)
consultation.

On ENT consultation in September 1965, the veteran stated
that in 1963 while working on a jeep he raised up, hit his
head, and was knocked unconscious.  He was not hospitalized.
Since that time, he had pains in his head that radiated
behind his eyes and into his cheeks and upper chest.  He also
complained of swelling of his eyes and dizziness.  He
described episodes of acute blepharitis and dacryocystitis
with associated retro-orbital headaches radiating into the
cheeks.  Headaches and eye lid edema were present only
together and not separately.  The veteran stated that he also
developed irritated eyes with burning and lacrimation and
occasional headaches on watch tower duty on bright days and
not dull, overcast days.  Mild headaches were reportedly
associated with these episodes.  Physical examination was
normal with the exception of a scar on the left forehead from
an old automobile accident.  The examiner's impression was
recurrent, acute episodes of blepharitis by history;
headaches due to eye strain and/or blepharitis, when present;
and normal head, eyes, ears, nose and throat examination.  A
skull series was essentially normal.  There was no evidence
of recent or old skull fracture.

The veteran's DD 214 from his second period of active duty
indicates that his separation was effected at Fort McPherson,
Georgia.

Post-service evidence of record includes VA outpatient
treatment records dated from 1994 to 1996.  The veteran
complained that his head hurt in March 1994.  He reported
occasional frontal headaches since active service.  Pertinent
diagnoses included presbyopia.  The veteran was diagnosed as
having glaucoma in April 1994.

The veteran was afforded a VA neurological examination in
June 1994.  He complained of throbbing headaches twice a
week.  The examiner's impression was tension headaches versus
refractory headaches.

On VA general medical examination in June 1994, the veteran
gave a history of a head injury in 1960.  He stated that he
did not remember how it happened.  He reportedly passed out
and woke up in the hospital with a laceration on the left
front scalp.  He reported forgetfulness since that time.  He
further complained of headaches often.  The examiner noted a
small scar on the left frontal scalp area and forgetfulness.
Pertinent diagnoses included head injury scar left frontal
scalp; loss of temporary memory (episodic); and cephalalgia.

The RO granted the veteran entitlement to service connection
for residuals of a head injury, scar, evaluated as
noncompensable, by means of a September 1994 rating decision.

In September and October 1994, the veteran was diagnosed as
having presbyopia.  He also complained of headaches in
September 1994.  In November 1994, he reported a black out,
headache and dizziness on the previous day.  He had a
tingling feeling around his temporal area.  The examiner's
assessment was rule out cerebrovascular accident (CVA).  The
veteran again complained of a headache in December 1994.  A
computed tomography (CT) scan showed an old small lacunar
infarct in the right interior capsule.  In February 1995, the
veteran was diagnosed as having a seizure disorder.  He had a
blackout spell in April 1995.  He also reported a seizure two
weeks earlier.  The examiner's assessment was probable
orthostatic hypotension and a history of seizures.  A seizure
disorder was again diagnosed in May 1995.  In March 1996, the
veteran reported that he almost went to sleep while driving.
In May 1996, he was diagnosed as having tension headaches.

In a May 1995 written statement, the veteran reported that he
was told by a VA doctor that that he had an old skull
fracture that caused a November 1994 blackout, and that this
was the same area where he had a head injury during service.

On VA audiological examination in June 1997, the veteran
reported that he was in a jeep accident with a head injury
during service in the 1960s and that he had an operation on
his ear after the accident.

In July 1997, Chester B. Primm, M.D. reported that the
veteran a veteran of World War II who was hospitalized and
received sutures during active service due to a fracture of
the anterior left skull.  He reported that the veteran was
discharged from Fort McClellan, Alabama, in 1965.  Dr. Primm
further stated that since "discharge he has been having
'black out spells' or passing out spells that last up to five
minutes.  Has problems with memory and poor vision.  Wears
glasses but has a foggy vision.  Has episodes of going to
sleep when he sits down.  Head injury may have contributed to
these problems."  Dr. Primm did not say when he began
treating the veteran or for how long or for what conditions.

On VA eye examination in October 1997, the veteran's visual
acuity was 20/400 uncorrected and 20/20 corrected (near) and
20/60 uncorrected and 20/20 corrected (far) in both eyes.
The remainder of examination was normal.  The examiner
diagnosed "VISION EXAM NORMAL."

On VA mental disorders examination in November 1997, the
veteran gave a history of a fractured skull following a fall
from a jeep during active service in March 1963.  On mental
status examination, memory was described as preserved.
Pertinent diagnoses included a seizure disorder secondary to
head trauma in the past.

The veteran was afforded a VA neurological examination in
December 1997.  He gave a history of a jeep accident in 1980
[sic] with "level of care."  He also stated that he
underwent a craniotomy to remove a blood clot in the left
frontal area.  He complained of headaches, poor memory, poor
vision and blackouts, one to two a day lasting 10 to 15
minutes.  He also reportedly had a seizure disorder.  He was
on medication for headaches, anxiety and seizures.  The
examiner noted that the veteran had poor memory on
examination.  Pertinent diagnoses included (1) history of
head injury with residual headache, poor memory and poor
vision and (2) history of seizures  secondary to number (1).

Private treatment records from Randolph County Hospital show
that the veteran suffered a left hemispheric CVA with right
hemiparesis/paralysis of the face and arm in January 1998.
He denied a history of concussions, seizure disorders, or
other head injuries.  It was noted that he wore eyeglasses;
otherwise examination of the eyes was normal.  A CT scan of
the brain without contrast showed a questionable small low
density defect in the anterior limb of the left internal
capsule and also in the right caudate nucleus.  It was noted
that this could represent early infarction.  Follow-up CT
scan showed a low density defect in the right caudate
nucleus, left internal capsule consistent with recent
infarct.  There was a questionable low density infarct on the
superior and anterior aspects of the left parietal lobe,
which could represent additional infarct.

The veteran testified at a video-conference hearing before
the Board in June 1999.  He stated that during active service
he was working on the wheel of a jeep and he did not know if
the jeep fell on him or if he bumped his head.  He stated
that he was unconscious and awakened in the hospital and
"they was sewing up my head."  He reported that he
continually suffered from headaches, vision problems,
blackouts, and memory loss after this incident.  The doctor
who treated him after service was reportedly deceased.  The
veteran stated that he was first treated by Dr. Primm in 1970
or 1980 and that Dr. Primm had not reviewed his service
medical records.  In 1996, the veteran reportedly found out
that the blackouts were related to seizures.  The veteran was
offered the opportunity to obtain and submit Dr. Primm's
treatment records, and the hearing record was left open for
that purpose.

Instead of treatment records, the veteran submitted another
letter from Dr. Primm, in which he reported in July 1999 that
he first treated the veteran for blackout spells and seizures
in November 1965, which were still present at this time.

II.  Legal analysis

A.  Direct and presumptive bases

Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service.  38 U.S.C.A. �� 1110, 1131 (West
1991); 38 C.F.R. � 3.303(a) (1998).  It is the responsibility
of a person seeking entitlement to service connection to
present a well-grounded claim.  38 U.S.C.A. � 5107 (West
1991).

Service connection may also be established for a current
disability on the basis of a "presumption" under the law
that certain chronic diseases manifesting themselves to a
certain degree within a certain time after service must have
had their onset in service.  38 U.S.C.A. �� 1110, 1131, 1112,
1137 (West 1991 & Supp. 1999); 38 C.F.R. �� 3.303, 3.304,
3.307, 3.309(a) (1998).  Service connection for epilepsies
may be established based on a legal "presumption" by
showing that the disease manifested itself to a degree of 10
percent or more within one year from the date of separation
from service.  38 U.S.C.A. � 1112, 1137 (West 1991 & Supp.
1999); 38 C.F.R. �� 3.307, 3.309 (1998).

Generally, a well-grounded claim is a "plausible claim, one
which is meritorious on its own or capable of
substantiation."  Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990).  In order to be well grounded, a claim for service
connection must be accompanied by supporting evidence that
the particular disease, injury, or disability was incurred in
or aggravated by active service; mere allegations are
insufficient.  Tirpak v. Derwinski, 2 Vet. App. 609, 610-611
(1992); Murphy, 1 Vet. App. at 81.

A claim for service connection requires three elements to be
well grounded.  It requires competent (medical) evidence of a
current disability; competent (lay or medical) evidence of
incurrence or aggravation of disease or injury in service;
and competent (medical) evidence of a nexus between the in-
service injury or disease and the current disability.  Epps
v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied,
sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v.
Brown, 7 Vet. App. 498, 506 (1995); aff'd 78 F.3d 604
(Fed.Cir. 1996) (table).  This third element may be
established by the use of statutory presumptions.  Caluza, 7
Vet. App. at 506.  Truthfulness of the evidence is presumed
in determining whether a claim is well grounded.  Id. at 504.

The veteran's claim for service connection for headaches,
blackouts, memory loss, poor vision and a seizure disorder is
plausible.  He has submitted competent evidence of incurrence
of a head injury during service.  Dr. Primm attributed the
veteran's black out spells, memory problems and poor vision
to an inservice head injury.  The November 1997 VA
psychiatric examiner diagnosed a seizure disorder secondary
to head trauma in the past.  The December 1997 VA
neurological examiner also diagnosed the veteran as having
(1) history of head injury with residual headache, poor
memory and poor vision and (2) history of seizures secondary
to number (1).  Assuming the credibility of this evidence,
this claim must be said to be plausible, and therefore well
grounded.

The veteran having stated a well-grounded claim, the
Department has a duty to assist in the development of facts
relating to this claim.  38 U.S.C.A. � 5107(a) (West 1991).
In this case, all referenced medical records have been
obtained or requested, and the veteran was provided
appropriate VA examinations.  Also, a personal hearing was
held in accordance with his request.  At his personal hearing
in June 1999, the veteran was permitted 60 days to submit
copies of Dr. Primm's treatment records.  Sufficient evidence
is of record to decide the veteran's claim fairly.
Therefore, no further development is required.

In evaluating a claim on the merits, the evidence is no
longer presumed to be credible.  The Board must assess the
credibility and weight to determine its probative value,
accounting for evidence which it finds to be persuasive or
unpersuasive, and providing reasons for rejecting any
evidence favorable to the appellant.  See Masors v.
Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1
Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).  Moreover, the Board may not base a decision on its
own unsubstantiated medical conclusions, but, rather, may
reach a medical conclusion only on the basis of independent
medical evidence in the record or adequate quotation from
recognized medical treatises.  See Colvin v. Derwinski,
1 Vet. App. 171 (1991).  The evaluation of credibility and
weight applies to the medical evidence before the Board.
Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

The Board concludes that the preponderance of the evidence is
against the veteran's claims for service connection for
headaches, blackouts, memory loss, poor vision and a seizure
disorder on a direct or presumptive basis because the
evidence reflecting that these conditions are related to an
inservice head injury is not persuasive and the veteran is
found not to be credible.

Dr. Primm's diagnosis and the November and December 1997 VA
examiners' diagnoses are not persuasive in light of the
evidence of record.  The veteran told Dr. Primm (who,
according to the veteran, did not review his service medical
records) that he was hospitalized during active service due
to a fracture of the anterior left skull and underwent
sutures.  He also gave a history to the VA examiners of
suffering a fractured skull and undergoing a craniotomy to
remove a blood clot in the left frontal area.  As noted
above, Dr. Primm attributed the veteran's black out spells,
memory problems and poor vision to an inservice head injury.
Dr. Primm also reported inaccurately that the veteran was a
veteran of World War II and that he was discharged from Fort
McClellan, Alabama, neither of which is factually correct.
Whether Dr. Primm was basing those statements on his
treatment records of the veteran, on the veteran's
statements, or on his recollection is unknown.  The veteran
was given the opportunity to obtain and present Dr. Primm's
treatment records, and he did not do so, although he was
clearly able to contact the doctor and obtain another
statement from him.  The factual inaccuracy of the doctor's
statements affects their credibility.

The VA examiners diagnosed residuals (headaches, poor memory,
poor vision, and seizures) of the reported injury.  However,
relevant judicial precedent provides that the Board is not
bound by such diagnoses in certain situations.

The Board is not required to accept
doctors' opinions that are based upon the
appellant's recitation of medical
history.  See e.g. Owens v. Brown, 7 Vet.
App. 429 (1995) (Board not required to
accept uncorroborated testimony of
claimant as to dental treatment during
service; Board not bound to accept
physicians' opinions based on claimant's
recitation of events).  See also Elkins
v. Brown, 5 Vet. App. 474, 478 (1993)
(rejecting medical opinion as
"immaterial" where there was no
indication that the physician reviewed
claimant's SMRs or any other relevant
documents which would have enabled him to
form an opinion on service connection on
an independent basis); Swann v. Brown, 5
Vet. App. 229 (1993) (holding that the
BVA was not required to accept the
medical opinions of two doctors who
rendered diagnoses of post-traumatic
stress disorder almost twenty years after
claimant's separation from service and
who relied on history as related by the
appellant as the basis for those
diagnoses); Heuer v. Brown, 7 Vet. App.
379, 386-87 (1995) (to demonstrate
entitlement to service connection for
hearing loss, there must be medical
evidence indicating a nexus to service,
and where the condition was noted during
service, continued symptomatology can aid
in establishing service connection).

Godfrey v. Brown, 8 Vet. App. 113, 121 (1995).

The November and December 1997 VA examiners' diagnoses are
little more than a recitation of history provided by the
veteran unenhanced by any additional medical comment by the
doctors -- i.e., the veteran reported suffering a skull
fracture and undergoing a craniotomy as the result of a head
injury -- and the doctors are not competent to opine as to
matters outside their expertise such as whether the inservice
injury as described by the veteran actually occurred.  See
LeShore v. Brown, 8 Vet. App. 406, 408-09 (1995) (holding
that evidence which is simply information recorded by a
medical examiner, unenhanced by any additional medical
comment by that examiner, does not constitute "competent
medical evidence" satisfying the Grottveit requirement for
medical nexus evidence and that such evidence cannot enjoy
the presumption of truthfulness because a medical
professional is not competent to opine as to matters outside
the scope of his or her expertise).  Dr. Primm and the VA
examiners made no reference to objective medical evidence or
medical records supporting their diagnoses.  The VA examiners
did not see the veteran until approximately 32 years after
his separation from service.  There is no indication that Dr.
Primm or the VA examiners reviewed the veteran's service
medical records.  Therefore, it appears that the diagnoses
were based solely on the veteran's report of his inservice
injury and of his symptoms, a report that is not plausible in
light of the other evidence of record, as discussed below.

The veteran's statements to Dr. Primm and the November and
December 1997 VA examiners that the nature of the injury to
head injury was so severe that it resulted in
hospitalization, skull fracture, and a craniotomy, or even
sutures, are not credible.  His statements do not comport
with the contemporaneous documentary evidence.  The service
medical records reveal no treatment for a head injury in
1963.  On examination in 1965, the veteran gave a history of
a head injury in 1963 but denied being hospitalized.  The
only objective finding noted was a scar on the left forehead.
A skull series revealed no evidence of recent or old
fracture.  The veteran has also offered other statements on
appeal which place his credibility in question.  For example,
in June 1997 he stated that he underwent ear surgery
following an inservice head injury, which, likewise, is not
supported by the service medical records.  Indeed, in January
1998 he denied a history of a head injury.

Thus, the Board assigns little probative weight to Dr.
Primm's and the November and December 1997 VA examiners'
diagnoses because these doctors linked the diagnoses to a
head trauma, the alleged severity of which the Board has
found not believable based on other evidence of record.  See
Hickson v. West, 12 Vet. App. 247 (1999) (holding that, in
deciding a case on what was tantamount to an adjudication on
the merits, the Board did not err in discounting the probity
of a doctor's statement as to nexus because of the fact[]
that it linked the appellant's back pain to an unspecified
trauma and that it was not supported by clinical medical
records.); see also Reonal v. Brown, 5 Vet. App. 458, 460-61
(1993) (holding that "[a medical] opinion based upon an
inaccurate factual premise has no probative value.").  The
diagnoses were based entirely on an incredible factual
premise of the severity of the injury provided by the veteran
and on no clinical medical evidence.  There is no credible
and competent evidence of record relating any current
disorders to any documented inservice finding or event.  The
veteran's own statements in this regard are not probative.
See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  Moreover,
while he reported that a VA doctor said that he had an old
skull fracture that caused a November 1994 blackout,
"hearsay medical evidence" does not constitute competent
medical evidence.  See Robinette v. Brown, 8 Vet. App. 69
(1995).

While Dr. Primm has reported treating the veteran since 1965,
copies of his actual treatment records have not been
provided.  He has provided no contemporaneous treatment
records or medical findings which lend credence to or
corroborate this reported history.  The probative weight of
these statement is further reduced given the 32-34 year gap
in time between the actual treatment and the doctor's written
statements.  Thus, service connection cannot be granted on a
presumptive basis.

The Board further notes that the veteran is diagnosed as
having refractive error of the eye, and that service
connection may not be granted for congenital or developmental
defects such as refractive error of the eye as a matter or
law.  38 C.F.R. � 3.303(c) (1998).

For the reasons and bases provided above, the Board concludes
that the evidence in this case preponderates against the
claim for service connection for headaches, blackouts, memory
loss, poor vision and a seizure disorder.  The evidence in
this case is not so evenly balanced so as to allow
application of the benefit of the doubt rule as required by
law and VA regulations.  38 U.S.C.A. � 5107(b) (West 1991);
38 C.F.R. �� 3.102, 4.3 (1998).

B. Secondary basis

Service connection may be established for a current
disability on a "secondary" basis.  Service connection may
be established on a secondary basis for a disability that is
shown to be proximately due to or the result of a
service-connected disease or injury.  38 C.F.R. � 3.310(a)
(1998).  Establishing service connection on a secondary basis
requires evidence sufficient to show (1) that a current
disability exists and (2) that the current disability was
either (a) caused by or (b) aggravated by a service-connected
disability.  38 C.F.R. � 3.310(a) (1998); Allen v. Brown,
7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v.
Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet.
App. 34 (1991).

To establish a well-grounded claim for service connection for
a disorder on a secondary basis, in addition to providing
evidence of the existence of a current disability, the
veteran must present medical evidence to render plausible a
connection or relationship between the service-connected
disorder and the new disorder.  Jones v. Brown, 7 Vet. App.
134, 137 (1994).  As noted above, for purposes of determining
whether a claim is well grounded, the evidence is generally
presumed to be credible.  See Robinette v. Brown, 8 Vet. App.
69, 75-76 (1995), citing King v. Brown, 5 Vet. App. 19, 21
(1993).

Service connection has been granted for a scar, attributable
to the head injury reported in service.  The veteran's
contention that these claimed disorders are attributable to
the head injury in service, as opposed to the scar, are dealt
with above.

The claims file contain evidence of diagnoses and/or findings
of headaches, blackouts, memory loss, poor vision and a
seizure disorder.  As noted above, service connection may not
be granted for congenital or developmental defects such as
refractive error of the eye as a matter or law.  38 C.F.R.
� 3.303(c) (1998).  Regardless, the record lacks evidence of
a relationship between the veteran's current disorders and
the service-connected scar, residuals of a head injury.
There are no medical opinions contained in any of the medical
records relating any current headaches, blackouts, memory
loss, poor vision or seizure disorder to the service-
connected scar.  The veteran lacks medical expertise and is
not qualified to render an opinion regarding a causal
relationship between any headaches, blackouts, memory loss,
poor vision or seizure disorder and the service-connected
scar.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Without competent medical evidence establishing such a
relationship, his claim for service connection on a secondary
basis is not well grounded.  See Jones, 7 Vet. App. at 137.

Where a claimant refers to a specific source of evidence that
could make his claim plausible, VA has a duty to inform him
of the necessity to submit that evidence to complete his
application for benefits.  See Epps v. Brown, 9 Vet.
App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d. 1464,
1468 (Fed. Cir. 1997).  The Board finds VA has no outstanding
duty to inform the appellant of the necessity to submit
certain evidence to complete his application for VA benefits.
38 U.S.C.A. � 5103(a) (West 1991).  Nothing in the record
suggests the existence of evidence that might well ground the
veteran's claim for service connection for headaches,
blackouts, memory loss, poor vision and a seizure disorder on
a secondary basis. Accordingly, the Board concludes that VA
did not fail to meet its obligations with regard to the
veteran's claim under 38 U.S.C.A. � 5103(a) (West 1991).

ORDER

Entitlement to service connection for headaches, blackouts,
memory loss, poor vision and a seizure disorder is denied.

Having found the claim not well grounded, entitlement to
service connection for headaches, blackouts, memory loss,
poor vision and a seizure disorder as secondary to a service-
connected scar, residual of a head injury, is denied.

	J. SHERMAN ROBERTS
	Member, Board of Veterans' Appeals


series: legacy

judge_role: Member, Board of Veterans' Appeals

disposition: denied

condition: ptsd

text:
Citation Nr: 9927000
Decision Date: 09/21/99    Archive Date: 09/28/99

DOCKET NO.  98-03 117	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an effective date earlier than August 28,
1995, for the grant of service connection for post-traumatic
stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

M. L. Kane, Associate Counsel

INTRODUCTION

The veteran had active military service from May 1966 to
April 1968.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee, which granted service connection for
PTSD, with assignment of a 50 percent disability rating
effective August 28, 1995.  A subsequent decision in
September 1997 assigned a 100 percent disability rating for
PTSD effective August 28, 1995.

FINDINGS OF FACT

1.  A rating decision of May 1993 denied, on the merits, the
veteran's claim for service connection for PTSD.  The veteran
was properly notified of this decision in June 1993,
including his appeal rights, but he did not appeal.

2.  On August 28, 1995, the veteran reopened his claim for
service connection for PTSD.

3.  The first medical evidence showing diagnosis of PTSD was
in June 1995.

CONCLUSIONS OF LAW

1.  The rating decision of May 1993 is final.  38 U.S.C.A.
� 7105(c) (West 1991); 38 C.F.R. �� 3.104, 3.158, 3.160
(1998).

2.  There is no legal entitlement to an effective date
earlier than August 28, 1995, for the grant of service
connection for post-traumatic stress disorder (PTSD).
38 U.S.C.A. � 5110(a) (West 1991); 38 C.F.R.
� 3.400(b)(2)(i), (q)(ii), and (r) (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

In December 1992, the veteran filed a claim for service
connection for PTSD.  The RO obtained his medical records
from the Vet Center, which showed diagnoses of alcohol abuse
and mixed personality disorder with depressive features.  He
was scheduled for VA examinations, to include a psychiatric
examination, in April 1993, but he called the VA Medical
Center indicating that he wanted to cancel the examinations.
He did not want to be rescheduled.  He stated that he did not
"want to fool with it."  He was again asked if he wanted to
reschedule the examination, and he said "no."

A May 1993 rating decision, inter alia, denied service
connection for PTSD.  The letter of June 1993 notifying the
veteran of this decision indicated that there was no current
medical evidence showing that he had the claimed condition.
He was notified of his right to appeal.

In August 1995, the veteran requested that his claim for PTSD
be reopened.  The RO obtained his VA treatment records, which
showed the initial diagnosis of PTSD upon hospitalization in
June 1995.

A June 1996 rating decision, inter alia, granted service
connection for PTSD as of August 28, 1995, date of receipt of
the claim to reopen.  In his notice of disagreement, the
veteran argued that he was entitled to an effective date from
the date of his original claim.  He stated that an employee
at the Vet Center had told him that he was a "sinister
alcoholic con-man," and he thought that it was therefore
senseless to pursue his claim at that time.  In his
substantive appeal, he stated that the aforementioned
statements caused him depression and anxiety, thereby
preventing him from pursuing his claim.  He said it took him
two years to gather information he needed from the Army to
support his claim.

II.  Legal Analysis

As discussed above, a May 1993 rating decision denied, on the
merits, the veteran's claim for service connection for PTSD.
There was of record no diagnosis of PTSD, and the veteran had
canceled his scheduled examination and had refused to be
scheduled for another one.

Where evidence is requested in connection with an original
claim is not furnished within one year after the date of
request, the claim will be considered abandoned, and, should
the right to benefits eventually be established, compensation
based on such evidence shall commence not earlier than the
date of filing the new claim.  38 C.F.R. � 3.158(a) (1998).

A decision of a duly constituted rating agency shall be final
and binding on all field offices of the Department of
Veterans Affairs as to conclusions based on the evidence on
file at the time VA issues written notification, and shall
not be subject to revision on the same factual basis except
by duly constituted appellate authorities or except as
provided in 38 C.F.R. � 3.105.  38 C.F.R. � 3.104(a) (1998).
An appeal requires a notice of disagreement on behalf of the
claimant and a substantive appeal after a statement of the
case is provided.  38 U.S.C.A. � 7105(a) (West 1991); 38
C.F.R. � 20.200 (1998).  If no notice of disagreement is
filed within the time limit provided, the determination
becomes final.  38 U.S.C.A. � 7105(c) (West 1991).  A finally
adjudicated claim is one that has become final by the
expiration of one year after the date of notice of a
disallowance.  38 C.F.R. � 3.160(d) (1998).  A previous
determination which is final and binding will be accepted as
correct in the absence of clear and unmistakable error.  38
C.F.R. � 3.105(a) (1998).

The veteran was notified in June 1993 of the denial of
entitlement to service connection for PTSD, and he was told
his appellate rights.  No correspondence was received from
him within the appeal period.  Therefore, the May 1993 rating
decision is final.  38 U.S.C.A. � 7105 (c) (West 1991).

The appellant has not alleged that clear and unmistakable
error occurred in the May 1993 rating decision.  He has
alleged that he did not pursue his claim because an employee
of the Vet Center made him depressed and anxious.  However,
he canceled his VA examinations without giving a reason,
other than saying he did not "want to fool with it."
Rather than having abandoned his claim by inference (38
C.F.R. � 3.158), his affirmatively indicated that he did not
want to pursue it.  However, when a claimant fails to report
for an examination scheduled in connection with an original
examination, the claim will be adjudicated based on the
evidence of record.  38 C.F.R. � 3.655(b) (1998).  Thus, the
RO denied his claim, because the evidence of record did not
show a diagnosis of PTSD.

The veteran submitted a claim to reopen, received at the RO
on August 28, 1995.  New and material evidence was obtained,
and the veteran's claim was granted, effective the date of
the claim to reopen.

The assignment of effective dates of awards is generally
governed by 38 U.S.C.A. � 5110 (West 1991 & Supp. 1999) and
38 C.F.R. � 3.400 (1998).  Unless specifically provided
otherwise, the effective date of an award based on an
original claim for service connection or a claim reopened
after final adjudication "shall be fixed in accordance with
the facts found, but shall not be earlier than the date of
receipt of application therefor."  38 U.S.C.A. � 5110(a)
(West 1991).  The implementing regulation clarifies this to
mean that the effective date of an evaluation and an award of
compensation based on an original claim or a claim reopened
after final disallowance "will be the date of receipt of the
claim or the date entitlement arose, whichever is the
later."  38 C.F.R. � 3.400 (1998).

A "claim" is defined in the VA regulations as "a formal or
informal communication in writing requesting a determination
of entitlement, or evidencing a belief in entitlement, to a
benefit."  38 C.F.R. � 3.1(p) (1998).  With a claim for
service connection, the effective date of an award will be
(1) the day following separation from active service or the
date entitlement arose if the claim is received within one
year after separation from service or (2) the date of receipt
of claim or date entitlement arose, whichever is later.
38 C.F.R. � 3.400(b)(2)(i) (1998).  With a reopened claim
where the new and material evidence is received after a final
disallowance, the effective date is the date of receipt of
the new claim or date entitlement arose, whichever is later.
38 C.F.R. � 3.400(q)(ii) and (r) (1998).

When the veteran filed his claim for PTSD on August 28, 1995,
it was a claim to reopen since there was a prior final
disallowance of this claim, as discussed above.  Pursuant to
38 C.F.R. � 3.400, the veteran is not entitled to an
effective date any earlier than August 28, 1995, for the
grant of service connection for PTSD.  Entitlement to service
connection requires, among other things, medical evidence of
a current disability.  See Caluza v. Brown, 7 Vet. App. 498,
506 (1995), aff'd 78 F.3d 604 (Fed.Cir. 1996) (table).  At
the time he filed his claim in 1992, there was no evidence of
record showing diagnosis of PTSD.  The veteran was therefore
scheduled for a VA examination in 1993, which he refused to
undergo.

When entitlement to a benefit cannot be established without a
current VA examination and a claimant, without good cause,
fails to report for such examination, an original
compensation claim will be based on the evidence of record.
38 C.F.R. � 3.655(a) and (b) (1998).  The RO could not, by
law, grant the veteran's claim for service connection for
PTSD in 1992 because there was no medical evidence showing
such a diagnosis.  The veteran provided no reason for
canceling the scheduled examination in 1993, and his claim
was denied based on the evidence of record, which failed to
show that he had the claimed condition.

The veteran contends that he did not report for the
examination because he felt it was pointless to pursue his
claim based on statements made to him.  He also contends that
these statements caused him depression and anxiety, making it
impossible for him to pursue his claim.  Even accepting his
statements as true, such facts do not warrant assignment of
an earlier effective date.  It is undisputed that he refused
to undergo a VA examination, and he did not appeal the 1993
denial of his claim.  Once that decision became final, any
claim filed thereafter was a claim to reopen.

Once a formal claim for compensation had been disallowed for
the reason that the service-connected disability is not
compensable in degree, receipt of a report of hospitalization
by a VA facility will be accepted as an informal claim to
reopen.  38 C.F.R. � 3.157(b)(1) (1998).  Although the VA
hospitalization report does show a diagnosis of PTSD upon
hospitalization in June 1995, this cannot provide the basis
for assignment of an earlier effective date, because the
veteran's earlier claim was not denied for the reason that a
service-connected disability was not compensable in degree,
but for the reason that the evidence did not show the claimed
diagnosis.  See Crawford v. Brown, 5 Vet. App. 33, 35-36
(1993).  Under 38 C.F.R. � 3.155(a), any communication or
action indicating an intent to apply for one or more benefits
under laws administered by VA may be considered an informal
claim.  Such informal claim must identify the benefit sought.
See Brannon v. West, 12 Vet. App. 32, 34 (1998) (noting that
VA "is not required to anticipate a claim for a particular
benefit where no intention to raise it was expressed and
citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) for
the proposition that VA is not required to do a
"prognostication" but to review issues reasonably raised by
the substantive appeal).  The report of the veteran's
hospitalization did not identify a benefit sought.

When new and material evidence is received after final
disallowance of the claim, such as the veteran's VA
hospitalization records in this case, the effective date is
the date of receipt of claim or date entitlement arose,
whichever is later.  Although it could be argued that
entitlement arose as of the June 1995 diagnosis, the claim to
reopen was received later, on August 28, 1995.

Thus, the Board concludes that an effective date earlier than
August 28, 1995, is not warranted in this case under VA
regulations governing effective dates for awards based on an
original claim for service connection or a reopened claim.
38 U.S.C.A. � 5110(a) (West 1991); 38 C.F.R. �
3.400(b)(2)(i), (q)(ii), and (r) (1998).  In this case, the
facts are not in dispute, and application of the law to the
facts is dispositive.  Where there is no entitlement under
the law to the benefit sought, the appeal must be terminated.
See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).

ORDER

Entitlement to an effective date earlier than August 28,
1995, for the grant of service connection for post-traumatic
stress disorder (PTSD) is denied.

	J. SHERMAN ROBERTS
	Member, Board of Veterans' Appeals


judge_norm: MARK F HALSEY

disposition: granted

text:
Citation Nr: 9928000
Decision Date: 09/28/99    Archive Date: 10/05/99

DOCKET NO.  95-26 455	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. Miyake, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1944 to
April 1946.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1995 rating decision by the RO
that denied a claim of entitlement to service connection for
bilateral hearing loss.  The veteran testified at a hearing
at the RO in November 1995.  Previously, this case was before
the Board in April 1997 when it was remanded for additional
development.

FINDING OF FACT

The veteran has bilateral hearing loss by VA standards, which
is likely due to noise exposure during military service.

CONCLUSION OF LAW

Bilateral hearing loss was incurred in service.  38 U.S.C.A.
�� 1110, 5107 (West 1991); 38 C.F.R. �� 3.102, 3.303, 3.385
(1998).

REASONS AND BASES FOR FINDING AND CONCLUSION

At the outset, the Board notes that, with the exception of
the veteran's April 1946 separation examination report, his
remaining service medical records are missing and have been
presumed destroyed by a 1973 fire at the National Personnel
Records Center (NPRC).  In September 1994, the NPRC noted
that no Surgeon General's Office records were on file and
that the veteran's records could not be reconstructed.  The
United States Court of Appeals for Veterans Claims (known as
the United States Court of Veterans Appeals prior to
March 1, 1999) (Court) has held that where "service medical
records are presumed destroyed . . . the BVA's obligation to
explain its findings and conclusions and to consider
carefully the benefit-of-the-doubt is heightened."  O'Hare
v. Derwinski, 1 Vet. App. 365, 367 (1991).  VA also has a
heightened duty to assist the veteran in the development of
evidence favorable to his claim.  Here, the veteran has not
provided any leads that VA has not already pursued to develop
his claim.

Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated by service.  38 U.S.C.A. � 1110 (West 1991);
38 C.F.R. � 3.303(a) (1998).  When disease is shown as
chronic in service, or within a presumptive period so as to
permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date
are service connected unless clearly attributable to
intercurrent causes.  38 C.F.R. � 3.303(b) (1998).  If a
reasonable doubt arises regarding service origin, or any
other point, it should be resolved in the veteran's favor.
38 U.S.C.A. � 5107 (West 1991); 38 C.F.R. � 3.102 (1998).

The Court has held that competent evidence pertaining to each
of three elements must be submitted in order make a claim of
service connection well grounded.  There must be competent
(medical) evidence of a current disability, competent (lay or
medical) evidence of incurrence or aggravation of disease or
injury in service, and competent (medical) evidence of a
nexus between the in-service injury or disease and the
current disability.  This third element may be established by
the use of statutory presumptions.  38 C.F.R. �� 3.307, 3.309
(1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd
per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also
Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert.
denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998).

The veteran claims that his bilateral hearing loss is the
result of an ear infection and exposure to acoustic trauma in
service.  He has testified that he was treated for hearing
problems in service; however, the majority of service medical
records are missing.  As already noted, the only service
medical record available is his April 1946 separation
examination report, which shows that whispered voice hearing
was "1X25/15" in the right ear and 15/15 in the left ear.
Because most of his service medical records are missing and
presumed destroyed in a fire, the Board takes into
consideration other sources of evidence that might help to
establish that his bilateral hearing loss had its onset in
service, including any clinical records of treatment during
the interval from discharge to the present time.  Although
there is no official service record showing treatment for an
ear infection or for acoustic trauma during service,
satisfactory lay or other evidence that an injury or disease
was incurred or aggravated in combat will be accepted as
sufficient proof of service connection if the evidence is
consistent with the circumstances, conditions or hardships of
such service even though there is no official record of such
incurrence or aggravation.  38 U.S.C.A. � 1154(b); 38 C.F.R.
� 3.304(d).  The veteran's DD-214 shows that his military
occupational specialty was a medium tank crewman.  His
April 1946 separation qualification record also notes that,
as a member of a tank crew, he drove a tank.  It was also
noted that he had loaded, aimed, and fired 30 and 50 caliber
machine guns as well as 75 and 76 millimeter cannons.
Therefore, the Board finds that this evidence, particularly
the veteran's own statement, is sufficient to show that the
veteran was exposed to loud noises, and consequently to
acoustic trauma during service.

For the purposes of applying the laws as administered by VA,
impaired hearing is considered to be a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of those frequencies
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent.
38 C.F.R. � 3.385 (1998).  In the veteran's case, pursuant to
the Board's April 1997 remand, VA audiological examinations
were conducted in June 1997 and May 1999 to determine whether
the veteran had a hearing loss disability by VA standards,
and whether such hearing loss was at least as likely as not
due to documented noise exposure in service rather than to
post-service events, such as the veteran's post-service
employment in a noisy mill environment.

The June 1997 VA examiner indicated that, because there were
inconsistencies between the veteran's speech reception
threshold and pure tone averages at 500-2000 Hertz for each
ear, the puretone results were considered invalid.
Consequently, another VA audiological evaluation was
conducted in May 1999.  This VA examiner indicated that,
because the veteran's pure tone responses were much worse
than speech reception thresholds, audiometric findings were
inconsistent and invalid.  It was noted that, whether this
was willful or secondary to the veteran's diagnosis of
dementia was impossible to delineate.  Nevertheless, even if
the puretone tests were considered invalid, the Board finds
that the best estimate of the veteran's organic hearing was
provided by the May 1999 VA audiological evaluation results,
as evidenced by speech recognition scores using the Maryland
CNC Test of 50 percent in the right ear and 46 percent in the
left ear.  Moreover, correspondence from a private physician,
dated in September 1994, indicates that, when the veteran was
examined in April 1993, he had moderate to severe
sensorineural hearing loss in the right ear with a 68 percent
discrimination score, and a moderate to severe sensorineural
hearing loss with a 40 percent discrimination score in the
left ear.  Based on these results, the Board finds that the
veteran has a bilateral hearing loss disability by VA
standards as set forth in 38 C.F.R. � 3.385 (1998).

In a statement, dated in September 1994, the private
physician reported the veteran's history of having had an ear
infection that lasted for 22 months in service, and having
worked in a noisy environment after service.  The private
physician opined that the veteran's left ear hearing loss was
service connected, and that right ear hearing loss may be
service connected.  The physician further opined that the
veteran's post-service work in a noisy environment may have
contributed somewhat to the hearing loss in the right ear.

The May 1999 VA examiner also noted that the veteran had
worked around loud noise in civilian life after discharge
from service.  The examiner opined that, scientifically, it
was impossible to differentiate the effects of noise exposure
in civilian life and the aging process (presbycusis) from the
effects of acoustic trauma during military service.  The
examiner further opined that, in the absence of supporting
evidence in the form of hearing tests shortly after discharge
from service, it was impossible to attribute the veteran's
hearing loss to military service, noise exposure in civilian
life, the aging process, or a combination of each of these
variables.  In summary, the examiner opined that it was just
as likely as not that the veteran's hearing loss was due to
post-service events rather than to documented noise exposure
in service.

The evidence of record establishes that the veteran now has a
bilateral hearing loss by VA standards.  38 C.F.R. � 3.385.
The Board further notes that both the private physician's
September 1994 opinion and May 1999 VA examiner's opinion
satisfy the nexus requirement for establishing service
connection.  Although there is evidence suggesting that the
veteran's hearing loss may be attributed to working in a
noisy environment after service, the evidence equally
suggests that his hearing loss could have been due to
exposure to loud noises in service, bringing the evidence
regarding a nexus to service at least into relative
equipoise.  Because the veteran's separation examination
suggests abnormal right ear hearing, because of the VA
examiner's opinion to the effect that the veteran's hearing
loss could have just as likely been caused by noise in
service, and in light of the private physician's opinion
relating hearing loss to service, the Board finds not only
that the claim is well grounded, but that, with resolution of
doubt in the veteran's favor, the veteran's bilateral hearing
loss is attributable to his military service, and that
service connection for such disability is warranted.
38 C.F.R. � 3.102.

ORDER

Service connection for bilateral hearing loss is granted.

	MARK F. HALSEY
	Member, Board of Veterans' Appeals


judge_norm: JAMES W ENGLE

text:
Citation Nr: 9929000
Decision Date: 10/07/99    Archive Date: 10/15/99

DOCKET NO.  97-32 685	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased (compensable) evaluation for
bilateral hearing loss.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

J. L. Tiedeman, Associate Counsel

INTRODUCTION

The appellant served on active duty from October 1973 to
November 1974.

This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from a rating decision of the Little Rock,
Arkansas, Department of Veterans Affairs (VA) Regional Office
(RO).

FINDINGS OF FACT

1. The RO has obtained all pertinent evidence available for
an informed decision to be entered in this case.

2.  The appellant's bilateral hearing loss disability is
manifested by average puretone thresholds in the left ear of
20 and in the right ear of 52.5, with speech recognition of
96 percent in both ears.  Thus, the appellant's hearing
acuity is found to be level I in both ears.

CONCLUSION OF LAW

The criteria for a compensable evaluation for a bilateral
hearing loss have not been met.  38 U.S.C.A. � 1155 (West
1991 & Supp. 1999); 38 C.F.R. � 3.321(b)(1), 4.1, 4.2, 4.3,
4.7, 4.21, 4.85, 4.87(a), Diagnostic Code (DC) 6100 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board finds that the appellant's
claim is "well-grounded" within the meaning of 38 U.S.C.A.
� 5107(a).  See Murphy v. Derwinski, 1 Vet. 78, 81 (1990);
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  That is,
the Board finds that the appellant has presented a claim
which is not implausible when the contentions and the
evidence of record are viewed in the light most favorable to
such claim.  Generally, an allegation that a service-
connected disability has increased in severity is sufficient
to establish well groundedness.  Proscelle v. Derwinski, 2
Vet. App. 629, 631-32 (1992).  Likewise, the Board is
satisfied that all relevant facts have been properly and
sufficiently developed, such that no further assistance to
the appellant is required to comply with the duty to assist
mandated by 38 U.S.C.A. � 5107(a).  The evidentiary
assertions of the veteran are presumed credible for making
this determination.

In adjudicating well-grounded claims, the Board determines
whether (1) the weight of the evidence supports the claim, or
(2) the weight of the "positive" evidence in favor of the
claim is in relative balance with the weight of the
"negative" evidence against the claim.  The veteran
prevails in either event.  However, if the weight of the
evidence is against the appellant's claim, the claim must be
denied.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

In the evaluation of service-connected disabilities, the
entire recorded history, including medical and industrial
history, is considered so that a report of a rating
examination, and the evidence as a whole, may yield a current
rating which accurately reflects all elements of disability,
including the effects on ordinary activity.  38 C.F.R.
�� 4.1, 4.2, 4.10, 4.41.  Where, as in this case, entitlement
to service connection has been established and an increase in
the disability rating is at issue, the present level of
disability is of present concern.  Although a rating
specialist is directed to review the recorded history of a
disability in order to make a more accurate evaluation (see
38 C.F.R. �� 4.2, 4.41), the regulations do not give past
medical reports precedence over current findings.  Francisco
v. Brown, 7 Vet. App. 55, 58 (1994).  The most current
clinical evidence of the present level of disability is the
VA examination of April 1997.  However, all pertinent
evidence during the appeal period will be considered.

In this decision, the Board is cognizant of the fact that
this appeal arises from the appellant's dissatisfaction with
his initial rating following the grant of service connection
for bilateral hearing loss.  In such a case, the United
States Court of Appeals for Veterans Claims (formerly the
United States Court of Veterans Appeals) (Court) has held
that separate or "staged" ratings must be assigned where
the evidence shows varying levels of disability for separate
periods of time.  Fenderson v. West, 12 Vet. App. 119 (1999).
In this case, the Board finds that the preponderance of the
evidence of record during the appeal period is against
assignment of a compensable rating.

Hearing loss is the organic impairment of hearing acuity.
38 C.F.R. � 4.87 (1998).  Under the schedular rating criteria
that became effective December 18, 1987, the evaluation of
bilateral auditory impairment is based on the results of
controlled speech discrimination testing together with the
average hearing threshold level as measured by pure tone
audiometry tests in the frequencies 1,000, 2,000, 3,000, and
4,000 Hz in each ear.  To evaluate the degree of disability
from bilateral organic hearing acuity impairment the revised
rating schedule establishes 11 auditory acuity levels from
level I, for essentially normal hearing acuity, through level
XI, for profound deafness.  38 U.S.C.A. � 1155, 1160 (West
1991); 38 C.F.R. � 4.85 and Part 4, DCs 6100 to 6110 (1998).
In this case, it is noted that the April 1997 VA auditory
examination resulted in pure tone thresholds and speech
discrimination findings that equate under the schedule as
level I in both ears.  A non-compensable disability rating is
assigned for hearing loss when hearing acuity is level I
bilaterally.  38 C.F.R. � 4.85, 4.87, DC 6100.  It is noted
that the rating criteria for diseases of the ear and other
sense organs were amended in May 1999, effective beginning
June 10, 1999.  The amendments did not change the criteria to
be used in the rating assigned in this case.  Application of
those revised criteria yields no change in the zero-percent
rating for the appellant's hearing loss.

The evaluations derived from the rating schedule are intended
to make proper allowance for improvement by hearing aids, and
examinations to determine such improvement are, therefore,
unnecessary.  38 C.F.R. � 4.86 (1998).  Thus, even though it
is currently shown that the appellant uses hearing aids, the
payment of additional compensation for the use of assistive
devices is inconsistent with the purpose of VA compensation.
See 52 Fed. Reg. 44, 118 (1987).
In view of the above, the degree of hearing impairment as
shown by the recent medical findings does not establish a
level of severity for which a compensable rating is warranted
under the applicable law and regulations.  While the Board is
constrained by a mechanical application of the facts in this
case to the applicable law and regulations.  See Lendenmann
v. Principi, 3 Vet. App. 345 (1992).

Finally, there is nothing in the record to suggest such an
unusual disability picture so as to render application of the
regular provisions impractical.  It has not been contended or
otherwise indicated that the hearing loss results in
hospitalization or other marked interference with employment
beyond that contemplated by the provisions of the schedule.
It is not shown that there is actual employment interference.
As such, further consideration of the provisions of 38 C.F.R.
� 3.321 is not indicated.

Since the preponderance of the evidence is against a
compensable rating, the benefit of the doubt doctrine is
inapplicable.  38 U.S.C.A. � 5107(b).

ORDER

A compensable disability rating for bilateral hearing loss is
denied.

	JAMES W. ENGLE
	Acting Member, Board of Veterans' Appeals


judge_norm: H N SCHWARTZ

disposition: dismissed

text: The appeal is dismissed.

text:
Citation Nr: 9930000
Decision Date: 10/20/99    Archive Date: 10/29/99

DOCKET NO.  98-18 040A	)	DATE
	)
	)

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

THE ISSUE

Evaluation of post traumatic stress disorder, currently
evaluated as 70 percent disabling.

REPRESENTATION

Appellant represented by:	State of Alabama Department of
Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

J. M. Ivey, Associate Counsel

INTRODUCTION

The veteran had active service from August 1969 to August
1971.

This case comes to the Board of Veterans' Appeals (Board) on
appeal from a January 1998 rating decision by the Montgomery,
Department of Veterans Affairs (VA) Regional Office (RO).

FINDING OF FACT

The Board received notification that the appellant did not
wish to appeal the 70 percent evaluation for post traumatic
stress disorder (PTSD).

CONCLUSION OF LAW

The appeal is withdrawn.  38 U.S.C.A. � 7105(b)(2), (d)(5)
(West 1991); 38 C.F.R. �� 20.202, 20.204(b), (c) (1999).

REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. � 7105, the Board may dismiss any appeal,
which fails to allege specific error of fact or law in the
determination being appealed.  A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision.  38 C.F.R. �� 20.202, 20.204(b) (1999).
Withdrawal may be made by the appellant or by his or her
authorized representative, except that a representative may
not withdraw a Substantive Appeal filed by the appellant
personally without the express written consent of the
appellant.  38 C.F.R. � 20.204(c) (1999).  The appellant has
withdrawn this appeal.

ORDER

The appeal is dismissed.

	H. N. SCHWARTZ
	Member, Board of Veterans' Appeals


judge_norm: RICHARD B FRANK

condition: eye

text:
Citation Nr: 9931000
Decision Date: 10/29/99    Archive Date: 11/04/99

DOCKET NO.  98-10 308A	)	DATE
	)
	)

THE ISSUE

Whether there was clear and unmistakable error (CUE) in the
Board of Veterans' Appeals June 1983 decision which denied
entitlement to service connection for low back disability.

REPRESENTATION

Moving Party Represented by:  California Department of
Veterans Affairs

ATTORNEY FOR THE BOARD

G. Wm. Thompson, Counsel

INTRODUCTION

The veteran had active military service from July 1969 to
July 1971.  His awards and decorations include the Combat
Infantryman Badge, Army Commendation Medal, and Purple Heart
Medal.

This case comes before the Board of Veterans' Appeals (Board)
motion by the moving party alleging CUE in the June 1983
Board decision.

FINDINGS OF FACT

1.  In June 1983 the Board issued a decision in which it was
found that chronic back pathology was not present in service,
and that current low back disability may not be related to
service; it was concluded that chronic low back disability
was not of service origin.

2.  The Board's decision of June 1983 was supported by the
evidence then of record, and it is not shown that the
applicable statutory and regulatory provisions existing at
that time were ignored or incorrectly applied.

CONCLUSION OF LAW

The Board's June 1983 decision did not contain CUE.   38
U.S.C.A. � 7111 (West Supp. 1998); 38 C.F.R. �� 20.1400 -
20.1411 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In June 1983, the Board issued a decision that included a
determination that the evidence supported the conclusion that
the veteran's back disability was not of service origin.  At
that time the Board noted treatment for back complaints in
service with a diagnosis of lumbago secondary to hypokinesis;
no objective back disability on VA examination in February
1972; private chiropractic diagnoses of subluxation complex
of the lumbar spine with attending fibromyositis in September
1981, and chronic mechanical derangement of the lumbar spine
causing chronic strain and sprain of the capsular ligaments,
and chronic muscle spasm of the lumbar musculature
concomitant with a hyperlordosis of the lumbar spine; and
November 1981 VA examination diagnosis of chronic lumbar
strain secondary to lordotic posture and not related to
injury.

The moving party sought reconsideration of the Board's June
1983 determination in May 1998.  It was contended that the
Board did not correctly consider the provisions of 38
U.S.C.A. � 1154(b) (formerly 354(b)), and 38 C.F.R. � 3.102.
It was further contended that the facts of the case, the
veteran's back complaints and diagnosis in service, back
complaints after service and diagnosis of back disability in
1981, supported a finding of combat trauma injury to the low
back with persistent back pain from then to now.

Reconsideration of the June 1983 determination for the low
back was denied in July 1998.  The denial included
information concerning changes in the law for CUE in Board
decisions.  In March 1999 the Board provided to the moving
party a copy of the pertinent regulations regarding a request
for CUE review of a Board decision.  He was advised to review
the pertinent regulations and specifically confirm that he
wished to proceed with CUE review.  Later in March 1999 he
responded, stating that he wished to continue this motion
based on the facts and evidence in his reconsideration
motion.

Motions for review of prior Board decisions on the grounds of
CUE are adjudicated pursuant to the Board's Rules of Practice
codified at 38 C.F.R. �� 20.1400-1411.  Pursuant to 38 C.F.R.
� 20.1404(b), the motion alleging CUE in a prior Board
decision must set forth clearly and specifically the alleged
CUE, or errors of fact or law in the Board decision, the
legal or factual basis for such allegations, and why the
result would have been different but for the alleged error.
Non-specific allegations of failure to follow regulations or
failure to give due process, or any other general, non-
specific allegations of error, are insufficient to satisfy
the requirement of the previous sentence.  Motions that fail
to comply with the requirements set forth in this paragraph
shall be denied.

Rule 1403, which is codified at 38 C.F.R. � 20.1403, relates
to what constitutes CUE and what does not, and provides as
follows:

(a) General.  Clear and unmistakable error is
a very specific and rare kind of error.  It
is the kind of error, of fact or of 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.  Generally, either the
correct facts, as they were known at the
time, were not before the Board, or the
statutory and regulatory provisions extant at
the time were incorrectly applied.

(b) Record to be reviewed.--(1) General.
Review for clear and unmistakable error in a
prior Board decision must be based on the
record and the law that existed when that
decision was made.

(2) Special rule for Board decisions issued
on or after July 21, 1992.  For a Board
decision issued on or after July 21, 1992,
the record that existed when that decision
was made includes relevant documents
possessed by the Department of Veterans
Affairs not later than 90 days before such
record was transferred to the Board for
review in reaching that decision, provided
that the documents could reasonably be
expected to be part of the record.

(c) Errors that constitute clear and
unmistakable error.  To warrant revision of a
Board decision on the grounds of clear and
unmistakable error, there must have been an
error in the Board's adjudication of the
appeal which, had it not been made, would
have manifestly changed the outcome when it
was made.  If it is not absolutely clear that
a different result would have ensued, the
error complained of cannot be clear and
unmistakable.

(d) Examples of situations that are not clear
and unmistakable error.--(1) Changed
diagnosis.  A new medical diagnosis that
"corrects" an earlier diagnosis considered
in a Board decision.

(2) Duty to assist.  The Secretary's failure
to fulfill the duty to assist.

(3) Evaluation of evidence.  A disagreement
as to how the facts were weighed or
evaluated.

(e) Change in interpretation.  Clear and
unmistakable error does not include the
otherwise correct application of a statute or
regulation where, subsequent to the Board
decision challenged, there has been a change
in the interpretation of the statute or
regulation.

(Authority: 38 U.S.C.A. � 501(a), 7111).

In this instance the moving party has not demonstrated that
the Board's June 1983 decision contains CUE.  The fact that
following combat injuries the veteran was treated for back
complaints in service with a diagnosis of lumbago secondary
to hypokinesis, that records of private chiropractic
treatment after service diagnosed low back disability in
1981, and that he currently had diagnosed back disability
does not provide a basis for finding CUE.  The Board
determination did consider the service medical records, the
February 1972 examination that found no objective back
disorder, and the 1981 chiropractic diagnoses.  Besides this
positive evidence in favor of the claim, the Board also
considered the negative evidence that included the November
1981 examination and diagnosis of chronic lumbar strain
secondary to lordotic posture not related to service.  As
stated by the U.S. Court of Appeals for Veterans Claims
(Court), for CUE to exist:

(1) "[e]ither the correct facts, as they
were known at that time, were not before
the adjudicator (i.e., more than a simple
disagreement as to how the facts were
weighed or evaluated), or the statutory
or regulatory provisions extant at the
time were incorrectly applied," (2) the
error must be "undebatable" and the
sort "which, had it not been made, would
have manifestly changed the outcome at
the time it was made," and (3) a
determination that there was CUE must be
based on the record and law that existed
at the time of the prior adjudication in
question.

Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell
v. Principi, 3 Vet. App. 310, 313-14 (1992)).

The Board must emphasize that the Court has consistently
stressed the rigorous nature of the concept of CUE.  "Clear
and unmistakable error is an administrative failure to apply
the correct statutory and regulatory provisions to the
correct and relevant facts; it is not mere misinterpretation
of facts."  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372
(1991).  CUE "are errors that are undebatable, so that it
can be said that reasonable minds could only conclude that
the original decision was fatally flawed at the time it was
made."  Russell, 3 Vet. App. at 313.  "It must always be
remembered that [clear and unmistakable error] is a very
specific and rare kind of 'error.'"  Fugo v. Brown, 6 Vet.
App. 40, 43 (1993).  A disagreement with how the Board
evaluated the facts is inadequate to raise the claim of clear
and unmistakable error.  Luallen v. Brown, 8 Vet. App. 92, 95
(1995).

The record before the Board in June 1983 demonstrated no
diagnosis of a chronic organic back disorder in service.  As
for the diagnosis in service, lumbago is a descriptive term
applying to pain in the mid or low back and does not specify
cause.  Hypokinesis merely means slow movement.  No objective
back disability was demonstrated on examination in February
1972, and the chiropractic diagnoses in 1981, even with
history as provided by the veteran, did not relate the back
problem to service.  The November 1981 medical opinion found
no nexus between the diagnosed post-service low back disorder
and injury in service.  The metallic foreign bodies were not
described as producing damage to underlying structures or as
producing any current disability.  Absent medical evidence
demonstrating a currently manifest disability in November
1981 related to service, the conclusion of the Board that
service connection was not warranted for a back disability is
not "undebatably" wrong.  The arguments raised by the
moving party constitute no more than a dispute as to how the
evidence should be weighed and evaluated.  This is not a
basis to support a finding of CUE.  38 C.F.R.
� 20.1403(d)(3).  An argument that the doctrine of reasonable
doubt was not applied also goes to the weighing and
evaluation of evidence and it can not provide a basis upon
which to support a finding of CUE.  38 C.F.R.
� 20.1403(d)(3).  The provisions of � 1154(b) are designed to
apply when records are not available, and in this instance
there are records showing back complaints after combat
injuries, and these records were considered at the time of
the 1983 determination.  Moreover, 38 U.S.C.A. � 1154(b) has
no role as to matters of medical diagnosis or medical
opinions as to causation.  In other words, 38 U.S.C.A. � 38
U.S.C.A. � 1154(b) can not fill the void created by the
medical conclusion in November 1981 that there was no current
back disability related to service.  Consequently, after
review of the evidence of record, the undersigned concludes
that the moving party has not set forth a valid allegation of
CUE in either fact or law within the June 1983 decision by
the Board.  Accordingly, he has not raised a valid claim of
CUE and the motion is denied.

ORDER

The motion for revision of the June 1983 Board decision on
the grounds of CUE is denied.

	Richard B. Frank
Member, Board of Veterans' Appeals