judge_norm: RICHARD B FRANK

text: The appeal is dismissed.

text:
Citation NR: 9631000
Decision Date: 10/31/96		Archive Date: 11/08/96

DOCKET NO.  94-45 393	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a total rating based on individual
unemployability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Daniel G. Krasnegor, Associate Counsel

FINDINGS OF FACT

1.  The veteran served on active duty from January 1949 to
October 1952.

2.  In June 1994, the RO denied the veteran's request for a
total rating based on individual unemployability.

3.  The veteran entered an appeal to the June 1994 RO action,
seeking entitlement to a total rating based on individual
unemployability.

4.  In April 1996, the RO granted the veteran's request for a
total rating based on individual unemployability.

CONCLUSION OF LAW

Inasmuch as the veteran's appeal has been allowed, there is
no issue of law or fact for the Board to decide in this case.
38 U.S.C.A. � 7105 (West 1991).

ORDER

The appeal is dismissed.

	RICHARD B. FRANK
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


series: legacy

judge_norm: RENÉE M PELLETIER

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text: Entitlement to service connection for the cause of the veteran’s death is denied.

text:
Citation NR: 9633000
Decision Date: 11/21/96		Archive Date: 12/02/96
DOCKET NO.  94-48 127	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon

THE ISSUE

Entitlement to service connection for the cause of the
veteran�s death.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

John Z. Jones, Associate Counsel

INTRODUCTION

The veteran served on active duty from September 1943 to
November 1947, and from August 1950 to December 1965.

This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a September 1996 rating decision of
the Portland, Oregon, Department of Veterans Affairs (VA)
Regional Office (RO).

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that the veteran�s death from
carcinoma of the lung was a result of exposure to radiation
while in service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim of service connection for the
cause of the veteran�s death.

FINDINGS OF FACT

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

2.  The veteran died on May [redacted], 1993, at the age of 72
as a result of squamous cell carcinoma of the lung.

3.  Lung cancer is not shown to have been present during
service or until over 25 years following service; lung cancer
was not caused by claimed inservice exposure to radiation.

CONCLUSIONS OF LAW

1.  Lung cancer was not incurred in or aggravated by service
nor may lung cancer be presumed to have been incurred
therein.  38 U.S.C.A. �� 1110, 1112, 1113, 1131, 1137, 5107
(West 1991 & Supp. 1995); 38 C.F.R. �� 3.303, 3.307, 3.309,
3.311 (1995).

2.  A disability incurred in or aggravated by service did not
cause, or contribute substantially, or materially, to cause
the veteran�s death.  38 U.S.C.A. �� 1310, 5107 (West 1991 &
Supp. 1995); 38 C.F.R. � 3.312 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran has submitted a well-grounded claim.  As such,
the VA has the duty to assist the veteran in the development
of facts pertinent to his claim.  38 U.S.C.A. � 5107(a) (West
1991 & Supp. 1995).  Upon review of the entire record, the
Board concludes that all relevant facts have been developed
and that no further duty to assist the veteran is required.

In a statement of claim, dated in April 1993, the veteran
contended that he was exposed to radiation in 1962 while
cleaning up debris which fell on the deck of his ship, the
Fort Marion, from an overhead nuclear test.

The certificate of death discloses that the veteran died on
May [redacted], 1993 at the age of 72.  The cause of death listed on
the death certificate was squamous cell carcinoma of the
lung.  No autopsy was performed.  At the time of his death,
the veteran had no adjudicated service-connected disability.

Service connection may be granted for disability caused by
disease or injury incurred in or aggravated by service.  38
U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.  Carcinoma of the
lung may be presumed to have been incurred in service if it
is manifested to a compensable degree within one year from
discharge, even though there is no evidence of such disease
during the period of service.  38 U.S.C.A. �� 1101, 1112,
1113; 38 C.F.R. �� 3.307, 3.309.  In order to establish
service connection for the cause of the veteran's death, the
evidence must show that disability incurred in or aggravated
by service either caused or contributed substantially or
materially to cause death.  For a service-connected
disability to be the cause of death, it must singly or with
some other condition be the immediate or underlying cause, or
be etiologically related. 38 U.S.C.A. � 1310; 38 C.F.R. �
3.312.

Claims based on exposure to ionizing radiation are governed
by 38 U.S.C.A. � 1112(c) and 38 C.F.R. � 3.311.  Under 38
U.S.C.A. � 1112(c), implemented by 38 C.F.R. � 3.309(d),
there is a presumption of service connection for specified
diseases which become manifest after service in veterans who
participated in radiation risk activities.  Under 38 C.F.R. �
3.311 (1994), a radiation-exposed veteran may prove that the
radiogenic disease for which service connection is claimed
was the direct result of radiation exposure in service.

The veteran�s service medical records are negative for a
finding of lung cancer.  In a May 1993 statement, Dr. P.A.
Kovach reported that the veteran had been recently diagnosed
with nonsmall cell cancer of the lung.  The physician noted
that the veteran had smoked considerably in the past and had
been exposed to radiation while serving in the Navy in the
Pacific in 1962.  After noting that there was evidence that
both tobacco and radiation exposure could be synergistic in
causing lung cancer, the physician opined that it was
possible that the veteran�s radiation exposure could have
played a role in the development of his lung cancer.  The
record shows that the veteran died in May 1993 of squamous
cell carcinoma of the lung.  At the time of the veteran�s
death, he did not have an adjudicated service-connected
disability.

In October 1993, the RO wrote the Defense Nuclear Agency
(DNA) and requested verification of the veteran�s
participation in a radiation risk activity while on active
duty.  In April 1994, the DNA replied that the veteran was
present during Operation DOMINIC I, an atmospheric nuclear
test series conducted in 1962.,  He had potential exposure
scenarios to initial radiation from tests that occurred
during his stay in the test area and exposure to fallout and
other nuclear debris on the ship.  DNA reported that
dosimetry data pertaining to the veteran revealed a recorded
film badge dose of 0.118 rem gamma; however, dose
reconstructions revealed that the veteran�s dose from initial
radiation (neutron and gamma) was insignificant (<0.001 rem)
and that no dose could be attributed to fallout.  It was
noted that the FORT MARION was 250 miles from the detonation
site, and that nuclear fallout was not detected on any Navy
ship or Johnston Island.  DNA attributed the �false positive�
reading to badges damaged by high heat and humidity in the
test area.  Therefore, DNA concluded that there was no
evidence of any radiation exposure.

During the September 1996 hearing on appeal, the appellant's
representative asserted that the veteran�s lung cancer was
caused by exposure to radiation during the nuclear testing in
1962.  The appellant did not offer any significant testimony.

In reviewing the evidence of record, the Board notes that the
service medical records are void of any finding of lung
cancer.  The first evidence of lung cancer is in a private
physician�s statement in May 1993, almost 25 years after
service.  In that statement, the physician reported that the
veteran had recently been diagnosed with nonsmall cell cancer
of the lung.  On the basis of this evidence, lung cancer is
not shown to be have been present coincident with service.

The Board notes that the fatal lung cancer is not considered
a radiogenic disease under 38 U.S.C.A. � 1112(c) and 38
C.F.R. � 3.309; however, it is considered a potentially
radiogenic disease under 38 C.F.R. � 3.311.  However, in this
case, there is no documentation that the veteran was exposed
to ionizing radiation in service and, in fact, according to
the DNA, he was not.

The Board finds that the statement of Dr. Kovach, while
suggesting a possible relationship between the veteran�s
alleged radiation exposure and lung cancer, is of minimal
probative value.  It is clear in reading the physician�s
statement that he relied on history provided by the veteran,
and not supported by the record, in formulating his opinion.
As such, the physician�s opinion is based on an inaccurate
factual premise and is of diminished probative value.  See
Reonal v. Brown, 5 Vet.App. 458 (1993).

In light of the foregoing, and in the absence of any medical
opinion or other medical evidence supporting the appellant�s
claim, the Board concludes that the preponderance of the
evidence is against service connection for the cause of the
veteran�s death due to radiation exposure.  As such, the
Board finds that service connection for the cause of the
veteran�s death is not warranted.  38 U.S.C.A. �� 1110,
1112(c), 1113, 1310, 5107; 38 C.F.R. �� 3.307, 3.309, 3.311,
3.312.

ORDER

Entitlement to service connection for the cause of the
veteran�s death is denied.

	REN�E M. PELLETIER
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

- 2 -


judge_norm: JACQUELINE E MONROE

benefit: overpayment

text:
Citation NR: 9634000
Decision Date: 11/27/96		Archive Date: 12/04/96
DOCKET NO.  95-07 504	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a waiver of recovery of an overpayment of
Chapter 34 educational assistance allowance.

REPRESENTATION

Appellant represented by:	Military Order of the Purple
Heart

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Martin F. Dunne, Counsel

INTRODUCTION

The veteran served on active duty in the Armed Forces from
August 1968 until August 1974, including service in Vietnam.

This matter comes before the Board of Veterans� Appeals
(Board) from a September 1994 decision by the Department of
Veterans Affairs (VA), Detroit, Michigan, Regional Office
(RO) denying the veteran a waiver of recovery of an
overpayment of Chapter 34 educational assistance allowance.
The Committee on Waivers and Compromises found that there was
no willful misrepresentation, fraud, or a lack of good faith
on the veteran�s part in the creation of the overpayment;
however, since he had not timely filed a request for waiver
of recovery of the overpayment, his request for waiver was
denied.  The amount of the overpayment is $672.60, plus
accrued interest.

CONTENTIONS OF APPELLANT ON APPEAL

Essentially, the veteran contends that he was not aware that
he had to notify the VA when he dropped out of school.  He
claims that he was told by school personnel that they would
do the notification.  He also asserts that, since he had paid
the school the tuition, i.e., used the VA educational
assistance funds appropriately, he would not have to repay
any of the allowance.  He maintains that he was not even
aware that he owed any money to the VA until many years later
and that, if he had to repay any of the indebtedness, it
would cause him a financial hardship.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for waiver of recovery of the
overpayment of Chapter 34 educational assistance allowance.

FINDING OF FACT

The veteran�s claim for a waiver of recovery of an
overpayment of educational assistance in the amount of
$672.60 was not received by the VA until many years after he
was notified by the VA of the overpayment.

CONCLUSION OF LAW

The claim for recovery of an overpayment of Chapter 34
educational assistance was not timely filed.  38 U.S.C.A.
�� 5107, 5302(a) (West 1991); 38 C.F.R. �� 3.103, 1.963(b)
(1995).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board is satisfied that all relevant facts have been
properly developed pertaining to the claim for waiver of
recovery of an overpayment of Chapter 34 educational
benefits.  No further assistance to the veteran is required
to comply with the duty to assist on this issue as mandated
by 38 U.S.C.A. � 5105(a); 38 C.F.R. � 3.103(a).

Factual Background

In February 1984, the VA received from the veteran a
certificate of enrollment for the pursuit of a training
program in the National Institute of Technology.  By VA
letter dated in April 1984, he was informed that he had been
awarded Chapter 34 educational assistance allowance for the
requested training course, at the full-time attendance rate
of $342 monthly, for the requested period of April 2, 1984,
through December 21, 1984.  The letter also advised him that
it was most important that he inform the VA of any change in
his address, enrollment, or the number of his dependents.

In early June 1984, the VA received notification from the
National Institute of Technology that the veteran had
withdrawn from all classes, effective from May 14, 1984,
because of financial reasons.  In mid-June 1984, the VA
informed the veteran by letter that his educational
assistance allowance had been discontinued, effective from
May 14, 1984, based upon his termination of school
attendance, thereby creating an overpayment.

By VA letter, dated in July 1984, the veteran was asked to
provide the reasons for the change in his enrollment status
and that, if he showed sufficient grounds for making this
enrollment change, any necessary reduction or termination of
his award would be effective no earlier than the date that
his enrollment status had actually changed.  The letter also
advised that if the evidence submitted by him did not
establish that the change was caused by unanticipated
circumstances beyond his control, or if he did not respond,
his award must be terminated, not from the actual date of
change but effective from the first day of the term in which
the change took place.  In August 1984, the VA notified the
veteran by letter that the VA educational assistance
allowance could not be used for courses from which a veteran
withdraws, or for courses in which a veteran�s grade will not
count toward graduation, and, since he had not responded to
the VA�s July 1984 letter, his educational assistance
allowance had been terminated, effective from April 1, 1984,
the first day of the term, thereby creating an overpayment.

The record shows that the VA sent the veteran a letter
informing him of the overpayment of $672.60 on November 19,
1984.  In July 1985, the VA received the veteran�s statement
regarding the reasons he stopped attending school, namely,
that he was working nights and he could not keep up with the
school work.  By VA letter dated in July 1986, the veteran
was informed that his reasons did not constitute mitigating
circumstances sufficient to justify termination of the
educational allowance from the date of his change of
enrollment status, May 14, 1984.  In December 1987, a default
judgment was entered for the VA against the veteran in the
United States District Court, Eastern District of Michigan,
Southern Division, for $672.60, plus accrued interest.  In
September 1994, the VA received the veteran�s request for
waiver of the overpayment.

Analysis

Recovery of overpayment of any benefits made under laws
administered by the VA shall be waived if there is no
indication of fraud, misrepresentation, or bad faith on the
part of the person or persons having an interest in obtaining
the waiver and recovery of the indebtedness from the payee
who received such benefits would be against equity and good
conscience.  See 38 C.F.R. � 1.963(a).

In September 1994, the Committee on Waivers and Compromises
found that there was no willful misrepresentation, fraud, or
a lack of good faith on the veteran�s part in the creation of
the overpayment at issue.  The Board does not disagree with
this favorable finding.  However, a request for waiver of an
indebtedness shall only be considered if the request is made
within 180 days following the date of a notice of
indebtedness that was issued on or after April 1, 1983, by
the VA to the debtor.  The 180 day period may be extended
upon showing of circumstances beyond the veteran�s control
that there was a delay in receiving such notice beyond the
time customarily required for mailing, including forwarding.
See 38 U.S.C.A. � 5302; 38 C.F.R. � 1.963(b).

Subsequent to the veteran�s change of enrollment in May 1984,
the VA sent him numerous notices at his address of record
which the record shows were not returned as undeliverable by
the postal service.  It was not until September 1994, which
is many years after the overpayment�s creation and VA
notification to the veteran of his indebtedness, that the
veteran submitted his request for waiver of the overpayment
and accrued interest.

In support of his recent request for waiver of the
overpayment, the veteran submitted written statements and
testified at a personal hearing that was held at the RO in
January 1995.  Essentially, he related that he had changed
enrollment status in May 1984 because he was working at
night, he found the course difficult, and he had not misused
the VA funds because he had used the educational allowance to
pay for the course.

Nonetheless, the fact remains that the veteran did not
request a waiver of recovery of the overpayment at issue
until many years after the overpayment�s creation.
Furthermore, he has not presented any evidence showing
circumstances beyond his control which would justify an
almost ten year delay in requesting a waiver of the
overpayment.  Accordingly, there is no legal basis upon which
to grant the benefit sought.  Where, as here, the law and not
the evidence is dispositive, the appeal must be terminated or
denied because of lack of entitlement under the law or
absence of legal merit.  See Sabonis v. Brown, 6
Vet.App. 426, 430 (1994).

ORDER

Waiver of recovery of an overpayment of Chapter 34
educational assistance allowance is denied.

	JACQUELINE E. MONROE
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: STEVEN L KELLER

disposition: dismissed

text: The appeal is dismissed.

text:
Citation NR: 9636000
Decision Date: 12/18/96		Archive Date: 12/24/96
DOCKET NO.  91-16 072	)
	)
	)

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Denver,
Colorado

THE ISSUE

Service connection for pulmonary disease, including claimed
asbestosis.

REPRESENTATION

Disabled American Veterans

ATTORNEY FOR THE BOARD

Barry F. Bohan, Counsel

INTRODUCTION

The veteran served in the Merchant Marine from October 1944
to June 1945 and from July to August 1945, and in the United
States Army from August 1953 to January 1954.

In a December 1993 decision, the Board of Veterans� Appeals
(the Board) denied the veteran entitlement to service
connection for residuals of a right hand and arm injury.
Service connection was also denied for pulmonary disease,
including asbestosis.  The veteran duly appealed to the
United States Court of Veterans Appeals (the Court).

While the veteran�s appeal was pending before the Court, in
an October 1995 rating decision, the Department of Veterans
Affairs (VA) Regional Office (RO) in Denver, Colorado granted
the veteran service connection for malignant mesothelioma,
secondary to asbestos exposure.

In a single-judge Order in April 1996, the Court affirmed the
December 1993 Board decision as to the issue of denial of
service connection for residuals of right hand and arm
injury.  The Court vacated the Board�s December 1993 decision
as to the issue of denial of service connection for pulmonary
disease, including asbestosis, and remanded that issue to the
Board.  The Court indicated that it was unable to determine
whether the pulmonary disease for which service connection
was being sought on appeal was one and the same with the
malignant mesothelioma for which the RO had granted service
connection in October 1995.  [citation redacted].

The veteran died on May [redacted], 1996.  According to the death
certificate, the cause of death was malignant pleural
mesothelioma due to pleuropulmonary asbestosis.
In July 1996, a three-judge panel of the Court, evidently
unaware of the veteran�s death, denied a motion filed by the
Secretary of Veterans Affairs for reconsideration of the
April 1996 Order.  [redacted].

The Board was notified of the veteran�s death on or about
October 10, 1996. At the time the Board was notified of the
veteran�s death, this appeal was not under active
consideration on the merits by a Member or panel of Members
of the Board.

The Board notes that there appears to be some confusion
concerning representation.  In October 1988, the veteran
appointed Disabled American Veterans (DAV) to represent him
before VA.  DAV acted as the veteran�s representative at the
time of the Board�s December 1993 decision and in connection
with a motion for reconsideration which was filed in March
1994 and denied in February 1995.  In May 1996, the veteran�s
widow appointed the State of Colorado, Department of Social
Services, Division of Veterans Affairs, to represent her
before VA.  Documents from the Court indicate that the
veteran was represented there by an attorney, James E.
Bicknell.  In September 1996, under the impression that the
veteran was still alive, Mr. Bicknell wrote to the Board,
indicating that he would represent the veteran before the
Board.  As the last valid power of attorney of record by the
veteran for representation before the Department of Veterans
Affairs is to the Disabled American Veterans, that
organization will be considered to be the veteran�s
accredited representative.

FINDINGS OF FACT

1.	The veteran served on active duty in the Merchant Marine
from October 1944 to June 1945 and from July to August 1945,
and in the United States Army from August 1953 to January
1954.

2.	On  or about October 10, 1996, the Board was notified by
the VA Regional Office in Denver, Colorado, that the veteran
died on May [redacted], 1996.

3.	At the time the Board was notified of the veteran�s
death, this appeal was not under active consideration on the
merits by a Member or panel of Members of the Board.

CONCLUSION OF LAW

Because of the death of the veteran prior to commencement of
active consideration of the appeal on the merits, the Board
will exercise its discretion not to complete action on the
merits of this case.  38 U.S.C.A. � 7104(a) (West Supp.
1995); 38 C.F.R. � 20.1302 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a matter of law, veterans� claims do not survive their
deaths.  Vda de Landicho v. Brown, 7 Vet.App. 42, 47 (1994).
Unfortunately, the veteran died during the pendency of the
appeal and this claim is now moot.  Moreover, as the appeal
was not under consideration on the merits at the time of the
veteran�s death, it would serve no useful purpose now to
initiate consideration of the appeal on the merits.
Therefore, the Board will exercise its discretion not to
complete action on the merits of this appeal and will,
instead, dismiss the appeal.  38 C.F.R. � 20.1302 (1995).

In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran.  38 C.F.R.
� 20.1106 (1995).

ORDER

The appeal is dismissed.

	STEVEN L. KELLER
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.
(CONTINUED ON FOLLOWING PAGE)
NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision is the
notice of the action taken on this appeal by the Board of
Veterans' Appeals.

- 2 -


judge_norm: JEFF MARTIN

condition: knee

text: An evaluation in excess of 10 percent for a Baker’s cyst of the right knee is denied.

condition: shoulder

condition: back

text:
Citation NR: 9637000
Decision Date: 12/30/96		Archive Date: 01/06/97
DOCKET NO.  93-10 592	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for a left knee
disability.

2.  Entitlement to an increased rating for a Baker's cyst of
the right knee, chondromalacia, currently evaluated as 10
percent disabling.

3.  Entitlement to an increased rating for residuals of right
shoulder strain, currently evaluated as 20 percent disabling.

4.  Entitlement to an increased rating for residuals of
thoracic back strain, currently evaluated as 20 percent
disabling.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Amy E. Balbach, Associate Counsel

INTRODUCTION

The veteran retired in February 1989 after more than 20 years
of active service.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1991 rating decision by the
Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida (RO).  In May 1995 and March 1996, this
matter was remanded for further development.  Pursuant to a
May 1996 rating decision, the RO denied entitlement to an
increased evaluation for a Baker�s cyst of the right knee and
granted entitlement to an increased evaluation of 20 percent
for both the residuals of a right shoulder strain and a
thoracic back strain.  The RO also continued its denial of
entitlement to service connection for a left knee disability
after this issue was determined by the Board in its May 1995
rating decision to still be pending, requiring review on a de
novo basis.  Once again, this matter is before the Board for
appellate review.

The United States  Court of Veterans Appeals (Court) has held
that a rating decision issued subsequent to a notice of
disagreement which grants less than the maximum available
rating does not  "abrogate the pending appeal."  AB v. Brown,
6 Vet.App. 35,  38 (1993).  Accordingly, the issues of
entitlement to an increased evaluation for the residuals of a
right shoulder strain and the residuals of the thoracic back
strain are properly before the Board for appellate review.

Preliminary review of the record does not reveal that the RO
expressly considered referral of the case to the Chief
Benefits Director or the Director, Compensation and Pension
Service for the assignment of an extraschedular rating under
38 C.F.R. � 3.321(b)(1) (1995).  This regulation provides
that to accord justice in an exceptional case where the
scheduler standards are found to be inadequate, the field
station is authorized to refer the case to the Chief Benefits
Director or the Director, Compensation and Pension Service
for assignment of an extraschedular evaluation commensurate
with the average earning capacity impairment.  The governing
criteria for such an award is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards.  The United States Court of Veterans Appeals
(Court) has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
� 3.321(b)(1) in the first instance, however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations.  Floyd v. Brown,
9 Vet.App. 88 (1996).  The Court has further held that the
Board must address referral under 38 C.F.R. � 3.321(b)(1)
only where circumstances are presented which the Director of
VA�s Compensation and Pension Service might consider
exceptional or unusual.  Shipwash v. Brown, 8 Vet.App. 218,
227 (1995).  Having reviewed the records with these mandates
in mind, the Board finds no basis for further action on this
question.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that his disabilities of the right
shoulder, knee, and thoracic spine are more disabling than
reflected in the evaluations currently assigned.  He states
that he experiences constant pain from such disabilities.
The veteran further maintains that he incurred a left knee
disability in service.  He contends that he injured both the
left and right knees in a bicycling accident while stationed
in Germany in 1971, and is therefore entitled to service
connection for the left knee also.  The veteran also has
contended that he received a puncture wound in the left knee
in 1984.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim of
entitlement to service connection for a left knee disability
is well-grounded.  Furthermore, it is the decision of the
Board that an increased evaluation for a Baker�s cyst of the
right knee, the residuals of a right shoulder strain, and the
residuals of a thoracic strain is not warranted.

FINDINGS OF FACT

1.  All available evidence necessary for an equitable
disposition of the appellant�s appeal has been obtained by
the originating agency.

2.  The claim of entitlement to service connection for a left
knee disability is not supported by cognizable evidence
showing that the claim is plausible or capable of
substantiation.

3.  Chondromalacia and a Baker�s cyst of the right knee is
not shown to result in more than slight disability, to
include functional impairment.

4.  A right (major) shoulder disability is not shown to
result in more than moderate disability, to include
limitation of function.

5.  A thoracic spine disability is not shown to result in
more than moderately severe disability, to include functional
impairment.

CONCLUSIONS OF LAW

1.  The veteran has not presented a well grounded claim for
entitlement to service connection for a left knee disability.
38 U.S.C.A. � 5107(a).

2.  The criteria for an evaluation in excess of 10 percent
for a baker�s cyst of the right knee have not been met.
38 U.S.C.A. �� 1155, 5107(a) (West 1991); 38 C.F.R. Part 4,
Diagnostic Code 5257 (1995).

3.  The criteria for an evaluation in excess of 20 percent
for the residuals of a right shoulder strain have not been
met.  38 U.S.C.A. �� 1155, 5107(a) (West 1991); 38 C.F.R.
Part 4, Diagnostic Codes 5201, 5203, 5302 (1995).

4. The criteria for an evaluation in excess of 20 percent for
the residuals of a thoracic back strain have not been met.
38 U.S.C.A. �� 1155, 5107(a) (West 1991); 38 C.F.R. Part 4,
Diagnostic Codes 5291, 5320 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Entitlement to service connection for a left knee disability

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by military
service.  38 U.S.C.A. �� 1110, 1131 (West 1991).

The law provides that �a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.�  38 U.S.C.A. � 5107(a) (West 1991).
Establishing a well grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is
service-connected; it requires evidence relevant to the
requirements for service connection and of sufficient weight
to make the claim plausible and capable of substantiation.
See Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v.
Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990).

The question of whether or not a claim is well-grounded is
significant because if a claim is not well-grounded, the
Board does not have jurisdiction to adjudicate that claim.
Boeck v. Brown, 6 Vet.App. 14, 17 (1993).  In this regard,
the Court has observed that the statutory prerequisite of
submitting a �well-grounded� claim �reflects a policy that
implausible claims should not consume the limited resources
of the VA and force into even greater backlog and delay
claims which--as well-grounded--require adjudication. . . .
Attentiveness to this threshold issue is, by law, not only
for the Board but for the initial adjudicators, for it is
their duty to avoid adjudicating implausible claims at the
expense of delaying well-grounded ones.�  Grivois v. Brown, 6
Vet.App. 136, 139 (1994).

The three elements of a �well grounded� claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence.  See Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
see also 38 U.S.C.A. �� 1110, 1131 (West 1991); 38 C.F.R.
� 3.303 (1995).  This means that there must be evidence of
disease or injury during service, a current disability, and a
link between the two.  Further, the evidence must be
competent.  That is, an injury during service may be verified
by medical or lay witness statements; however, the presence
of a current disability requires a medical diagnosis; and,
where an opinion is used to link the current disorder to a
cause during service, a competent opinion of a medical
professional is required.  See Caluza at 504.

Service medical records reveal complaints of the veteran�s
left knee giving way while working in 1974.  Pain in the back
of the knee and trouble straightening the knee were noted.  A
questionable assessment of a muscle strain was provided.  A
January 1975 report of medical examination indicated full
range of motion, strength in both the lower extremities.
Records dated in November 1975 revealed complaints of a
painful left knee without swelling or bruising.  The examiner
noted that the veteran had injured the left knee twice in the
past.  X-rays were negative and an assessment of a contusion
of the left knee was provided.

An August 1978 separation examination revealed a history of
painful knee joints from an internal infection in 1973.  The
examination further noted that the veteran was thrown over
the handle bars of a bicycle and that the knees have been
most painful in cold weather since November 1976.  Clinical
records from February 1974 showed that the veteran incurred a
superficial, benign, puncture wound in the inferior patellar
area.  Tenderness was noted.  Clinical records dated in March
1988 revealed complaints of arthritic pain in both knees.  A
March 1988 retirement examination noted recurrent bilateral
knee pain since 1980, following a fall from a bicycle, which
was noted to have been treated with aspirin with good
results.

A September 1989 VA examination provided a history of a
bicycling accident while stationed in Germany in 1972.  A
history, as provided by the veteran, of bilateral knee pain
was noted.  No diagnosis, with respect to the left knee was
provided.  An October 1989 rating decision denied entitlement
to service connection for a left knee disability.  The RO
determined that a chronic disability of the left knee was not
shown in service and that the September 1989 VA examination
did not show any evidence of a left knee disability or
residuals thereof.  Again, as mentioned previously, due to
�notice� deficiencies the claim has been pending since that
time.

Private medical records dated in November and December 1990
revealed that the veteran was seen on repeated occasions for
a reported trauma to the left knee which was evidenced by
swelling.  He had been playing softball when his left foot
caught when sliding into base, resulting in his having �went
down hard� on his knee, and sustaining an abrasion trauma.
An impression of abrasion and suprapatellar bursal contusion
of the left knee, resolving, was noted.  The records revealed
no other prior history of left knee pain or any other trauma
relating to the left knee.  Findings included mild synovial
crepitance.

A July 1995 VA examination noted a history of injury to both
knees and the right shoulder in a bicycle accident in 1971.
Complaints of persistent left knee pain were noted.  Findings
of effusion and a range of motion from o to 125 degrees
bilaterally were noted.  A radiology report revealed
�essentially normal findings� relative to the knees.  A
diagnosis of bilateral chondromalacia of the patellae with
associated synovitis of the knees, left greater than right,
was provided.

Pursuant to a March 1996 remand, another VA examination was
conducted in April 1996 in order to, in part, request that an
examiner provide an opinion as to whether or not a left knee
disability is related to the veteran�s active service.  An
April 1996 VA examination revealed the opinion that �it is
impossible for this examiner to determine the exact state or
nature of when the patient�s left knee was injured.  He does
have chondromalacia of the patella of his knee but the exact
time that the patient�s knee was injured and whether or not
it is service-connected cannot be determined by this
examiner.�

At an August 1992 personal hearing, the veteran testified
that he injured his left knee at the same time he injured his
right knee in approximately 1972.  He stated that he received
first-aid for his left knee following a bicycle accident
which included medication and a wrap for the knee to
alleviate the swelling.  The veteran also testified that he
incurred a puncture wound to the left knee in 1985.  He
stated that he had his left knee examined while stationed in
Italy; however, the physician could not find any significant
disability of the knee.  The veteran also stated that when he
received treatment for his knee by a private physician, as
indicated by the above private medical records, that such
physician stated that the x-rays revealed an old injury to
the left knee.  The veteran testified to current swelling of
the left knee.

The Board finds that the evidence does not demonstrate a
nexus, or link, between the veteran�s current left knee
disability and any left knee injury incurred in service. See
Caluza v. Brown, 7 Vet.App. 498, 506 (1995). see also
38 U.S.C.A. �� 1110, 1131 (West 1991); 38 C.F.R. � 3.303
(1995).  Although service medical records revealed reports of
injuries and complaints related to the left knee, no clinical
findings of pathology relating to the left knee were reported
in service or upon retirement from service.  Also, the
September 1989 VA examination showed no residuals of a left
knee, injury, although the veteran did complain of pain in
both knees at that time.  Furthermore, private medical
records submitted dated in 1990, showed that the veteran
injured his left knee while playing softball following
service, and VA examinations since such injury, have revealed
diagnoses inclusive of chondromalacia of the patella.  The
most recent VA examination revealed that the examining
physician was unable, based upon a review of the entire
record, to determine whether the veteran�s left knee
disability is linked to service.  As such, the record does
not include competent medical evidence linking his current
knee disability to a cause during service.  Therefore, the
claim is not well-grounded and must be denied.

Although when a claim is not well grounded the VA does not
have a statutory duty to assist a claimant in developing
facts pertinent to his claim, VA may be obligated under
38 U.S.C.A. � 5103(a) to advise a claimant of evidence needed
to complete his application.  This obligation depends upon
the particular facts of the case and the extent to which the
Secretary of the Department of Veterans Affairs has advised
the claimant of the evidence necessary to be submitted with a
VA benefits claim.  Robinette v. Brown, 8 Vet.App. 69 (1995).

In this case, the RO fulfilled its obligation under section
5103(a) in official letters and documents associated with the
claims file in which the appellant was informed of the
reasons for the denial of his claim.  Furthermore, by this
decision the Board is informing the appellant of the evidence
which is lacking and that is necessary to make his claim well
grounded.

Entitlement to an increased rating for a Baker�s cyst of the
right knee, residuals of a right shoulder strain, and
residuals of a thoracic back strain.

Initially, we find that the appellant�s claims are plausible,
or well-grounded, within the meaning of 38 U.S.C.A. � 5107(a)
(West 1995).  The relevant facts have been properly
developed, and, accordingly, the statutory obligation of the
(VA) to assist in the development of the appellant�s claim
has been satisfied.  38 U.S.C.A. � 5107(a) (West 1991).

Disability evaluations are based upon the average impairment
of earning capacity as determined by a schedule for rating
disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.
Separate rating codes identify the various disabilities.
38 C.F.R. Part 4 (1995).  Regulations also provide that each
disability be viewed, and medical reports pertaining thereto
be interpreted, in light of the recorded history, and that
each disability be considered from the point of view of the
veteran working or seeking work.  38 C.F.R. ��  4.1, 4.2 and
4.10 (1995).  However, the percentage ratings reflect the
average impairment in earning capacity resulting from
disability.  38 C.F.R. � 4.1 (1995).

Furthermore, while the regulations require review of the
recorded history of a disability by the adjudicator to ensure
a more accurate evaluation, the regulations do not give past
medical reports precedence over the current medical findings.
Where an increase in the disability rating is at issue, the
present level of the veteran�s disability is the primary
concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The September 1989 VA examination revealed a history, as
provided by the veteran of bilateral knee pain since a
bicycling accident in 1972.  The examiner noted that the
veteran developed a Baker�s cyst in 1983, and that such cyst
was too small to palpate.  The veteran also provided a
history of a muscle injury in the thoracic spinal area.  No
interference with function was found upon examination.  The
examiner further noted complaints or back pain.  Full range
of motion of the right shoulder was noted as well as possible
x-ray evidence of widening of this joint.  A diagnosis of
Baker�s cyst, small, right knee, was provided, as well as
back pain, left spinal erector, low thoracic.  Pursuant to an
October 1989 rating decision, the veteran was granted
entitlement to service connection for a right knee
disability, characterized as a Baker�s cyst of the right
knee, the residuals of a right shoulder strain, and the
residuals of a thoracic back strain.  All disabilities were
assigned a zero percent evaluation.  Chondromalacia was
subsequently recognized as a component of the right knee
disability.

As noted above, a July 1995 VA examination, conducted
pursuant to a May 1995 remand by the Board, revealed a
history of injury to both knees and the right shoulder in a
bicycle accident in 1971.  Complaints of right knee swelling
with associated Baker�s cyst were noted.  Findings of 1+
effusion of the right knee and a range of motion from 0 to
125 degrees bilaterally were noted.  Cruciate and collateral
ligaments were noted to be intact.  The examiner further
noted that there was mild patellofemoral crepitus with range
of motion and a positive patellar grind.  A radiology report
revealed an impression of essentially normal findings
relative to the knees, and a diagnosis of bilateral
chondromalacia of the patellae with associated synovitis of
the knees, left greater than right, was provided.

With respect to the right shoulder, the July 1995 VA
examination showed forward flexion of 110 degrees, abduction
of 100 degrees, external rotation of 40 degrees, and internal
rotation of 30 degrees.  Subacromial crepitus on abduction as
well as pain to palpation was shown.  Complaints of constant
pain were also noted.  There was an essentially normal x-ray
of the right shoulder.  A diagnosis of subacromial
impingement with bicipital tendonitis of the right shoulder
was provided.  Examination of the spine revealed complaints
of burning in the thoracic and low back area with radiation
to the left lower extremity.  X-rays revealed no evidence of
gross fracture, dislocation, or degenerative changes.
Forward bending was at 25 degrees, side bending at 20
degrees, extension at 10 degrees, and rotation at 10 degrees.
A diagnosis of a chronic thoracic strain was noted.  Pursuant
to a September 1995 rating decision, the RO granted an
increased evaluation of 10 percent for a Baker�s cyst of the
right knee with chondromalacia, a right shoulder strain, and
a thoracic back strain based, in part, on the findings of
this VA examination.

Thereafter, in a March 1996 remand, the Board determined that
the above VA examination did not comply with the holding by
the United States court of Veterans Appeals (Court) in Deluca
v. Brown, 8 Vet.App. 202 (1995), wherein the Court held that
38 C.F.R. � 4.40 and 4.45 (1995) were not subsumed into the
diagnostic codes under which a veteran�s disabilities are
rated.  Therefore, another VA examination in order to
consider the �functional loss� resulting from veteran�s
disabilities under 38 C.F.R. � 4.40, separate from any
consideration of the veteran�s disabilities under the other
applicable diagnostic codes was necessary.

An April 1996 VA examination showed complaints of �popping,
clicking, and aching� of the right knee as well as
retropatellar pain.  Examination of the right knee revealed
1+ effusion and a range of motion from 0 to 130 degrees with
mild crepitus shown with motion.  Ligaments were intact.  X-
rays of the knees revealed no degenerative changes.  A
diagnosis of bilateral chondromalacia of the patellae with
associated Baker�s cyst and swelling of the right knee was
provided.  With respect to the veteran�s right shoulder,
complaints of pain with increased pain with �overhead motion�
were noted.  Examination of the right shoulder showed forward
flexion of 110 degrees, abduction of 100 degrees, and
external rotation of 40 degrees with internal rotation of 30
degrees.  A prominent acromioclavicular joint with associated
pain to palpation was also noted, and x-rays showed mild
hypertrophic changes of the right acromioclavicular joint.  A
diagnosis of subacromial impingement with bicipital
tendinitis of the right shoulder with associated
osteoarthritic degenerative changes of the acromioclavicular
joint was provided.

Examination of the thoracic spine showed subjective
complaints of sharp and dull pains with radiation to the left
flank without significant radiculopathy.  Complaints of
increased pain upon standing for long periods was also noted.
Examination revealed findings of a mild paraspinal muscular
spasm.  Forward flexion of 25 degrees, side bending of 20
degrees, extension of 0 degrees, and rotation of 0 degrees
was noted.  X-rays revealed no degenerative changes and a
diagnosis of a chronic thoracic sprain was provided.  The
examiner further opined that the veteran�s disability of his
�spine and chondromalacia of his knees bilaterally would
prevent him from doing repetitive bending, stooping, and
lifting.�  The examiner also noted that functional
limitations due to his chronic thoracic sprain and bilateral
knee condition would prevent the veteran from performing
heavy manual labor.  A chronic thoracic strain was diagnosed.

The veteran�s right knee disability has been rated according
to Diagnostic Code 5257 which provides that with slight
recurrent subluxation or lateral instability, a 10 percent
evaluation is assigned, and with moderate, a 20 percent
evaluation is assigned.  38 C.F.R. Part 4, Diagnostic Code
5257 (1995).  The VA examinations do not demonstrate
impairment of the knee congruent with a moderate knee
disability in order to warrant an increased evaluation of 20
percent.  Both the July 1995 and April 1996 VA examinations
revealed findings of 1+ effusion and mild crepitus, with a
range of motion from 0 degrees to 125-130 degrees.  Although
the examiner provided the opinion that the veteran�s
bilateral knee condition in combination with his thoracic
sprain limit the veteran�s functional capabilities to exclude
heavy manual labor, the Board finds that, as a result, the
veteran�s right knee condition alone does not produce
functional limitation to such a degree as would warrant an
increased evaluation therefor.  The 10 percent rating in
effect is found to adequately reflect the extent of
functional impairment shown to be attributable to pain and
other factors contributing to limitation of function.

The veteran�s right knee disability may also be rated under
Diagnostic Codes 5260 and 5261.  Such codes provide that a 20
percent evaluation is warranted when flexion is limited to 30
degrees and extension is limited to 20 degrees.  With a range
of motion from 0 to 130 degrees shown on the last VA
examination, the veteran does not meet such criteria as both
extension and flexion are essentially within normal limits,
without adequate indication of functional limitation due to
pain to the extent necessary to warrant a 20 percent rating.
See 38 C.F.R. �� 4.40 and 4.45.  As such, an increased
evaluation for the veteran�s Baker�s cyst of the right knee
is not warranted.  38 C.F.R. Part 4, Diagnostic Codes 5260
and 5261 (1995).

The RO, pursuant to a May 1996 rating decision, granted an
increased evaluation of 20 percent for both the veteran�s
right (major) shoulder and thoracic back strain.  The Board
observes that the veteran�s right shoulder strain has been
rated, by analogy, according to Diagnostic Codes 5203 and
5302 which provide that a 20 percent evaluation is warranted
for impairment of the clavicle and scapula with nonunion for
loose movement under code 5203, and a 20 percent evaluation
is warranted for an extrinsic muscle injury of the shoulder
which is of moderate severity under code 5302.  38 C.F.R.
Part 4, Diagnostic Codes 5203 and 5302 (1995).  A 20 percent
evaluation is the highest allowable under Diagnostic Code
5203 for either the major or minor shoulder.  As such, the
veteran is not entitled to an evaluation in excess of 20
percent under such code.  In order to warrant an increased
evaluation under code 5302, a muscle injury of moderately
severe severity for the major shoulder must be shown.  As
demonstrated on the most recent VA examination, the veteran�s
right shoulder strain revealed complaints of increased pain
with �overhead motion�.  Also, with forward flexion of 110
degrees, abduction of 100 degrees, external rotation of 40
degrees, and internal rotation of 30 degrees, the veteran�s
right shoulder strain is reasonably contemplated under code
5302 as a muscle injury of moderate severity, as well as,
Code 5201.  For a 30 percent rating to be appropriately
assignable under Code 5201, it would be necessary to show
that there was limitation of motion or function of the right
(major) shoulder to a point midway between the side and
shoulder level.  Impairment of function due to pain is now
contemplated by the currently assigned 20 percent rating.

Finally, with respect to the veteran�s thoracic strain the
RO, as noted above, granted an increased evaluation of 20
percent during the course of the appeal.  A thoracic strain
has been considered under Diagnostic Code 5291 which provides
that moderate and severe limitation of motion of the dorsal
spine is assigned a maximum 10 percent evaluation.  As the
veteran is in receipt of an evaluation higher than the 10
percent allowable under code 5291, an increased evaluation
under that code is not warranted.  The veteran�s thoracic
strain may also be considered under Diagnostic Code 5320
which provides that a muscle injury in the cervical and
dorsal region of moderately severe severity is assigned a 20
percent evaluation, and a severe muscle injury is assigned a
40 percent evaluation.  Insofar as the above-mentioned
evidence relative to the veteran�s thoracic strain
demonstrates that such disability, in combination with the
veteran�s knee disabilities, limits his ability to perform
manual labor, the veteran�s disability involving the thoracic
spine is reasonably contemplated to be of moderately severe
severity, and no more.

The Board has also considered the veteran�s testimony at an
August 1992 personal hearing wherein the veteran testified to
swelling of the right knee, difficulty walking, and pain
while walking, especially with weather changes.  He stated
that he experiences pain in his right knee while bending when
his right knee is swollen.  With respect to his right
shoulder, the veteran testified that he experiences
arthritic-like pain in his right shoulder and some limitation
of motion.  The veteran also testified, with respect to his
thoracic back strain, that he experiences pain with prolonged
sitting or standing that resolves with changes in position.
He stated that he does not take medication for any back pain
that he may experience.  Nevertheless, such testimony does
not provide a basis for granting entitlement to an increased
rating for any of the veteran�s disabilities.  To the extent
such testimony is competent, the ratings currently in effect
are found to contemplate the extent of impairment described
and, with regard to the service connection claim, lay
testimony will not suffice to render the claim well grounded,
under the particular facts of this case.  The Board has also
considered all applicable code provisions and regulations
relating to the veteran�s disabilities, yet has been unable
to find a basis for an increased rating in excess of the
current ratings assigned for the veteran�s disabilities.

ORDER

As the claim of entitlement to service connection for a left
knee disability is not well grounded, the appeal is denied.

An evaluation in excess of 10 percent for a Baker�s cyst of
the right knee is denied.

An evaluation in excess of 20 percent for the residuals of a
right shoulder strain is denied.

An evaluation in excess of 20 percent for the residuals of a
thoracic back strain is denied.

	JEFF MARTIN
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: BARBARA B COPELAND

disposition: remanded

text:
Citation NR: 9701000
Decision Date: 01/15/97		Archive Date: 02/03/97
DOCKET NO.  95-20 261	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for the cause of the
veteran�s death.

ATTORNEY FOR THE BOARD

Dennis F. Chiappetta, Jr., Associate Counsel

INTRODUCTION

The veteran apparently served on active duty from February
1941 through January 1945.

This appeal arises from a June 1994 RO rating decision which
denied service connection for the veteran�s cause of death.

REMAND

In 1944, the veteran had treatment for a psychiatric
condition, which eventually led to his retirement from active
duty.  Service connection was established in June 1966 for
reactive depression.

The veteran had a history of medical conditions including
hepatomegaly, which was noted in October 1973.  A liver
biopsy in 1981 revealed that this was caused by alcoholic
cirrhosis due to a lifetime of alcohol abuse.  In June 1993,
the veteran was pronounced dead in Devon, England, and a
death certificate indicates the cause of death was hepatic
failure and micronodular cirrhosis.

The appellant contends that the veteran drank due to his
service-connected reactive depression.  In support of this
contention, Dr. Peter Moore submitted a letter indicating
that he saw the veteran from 1981 until his death in 1993,
and that during this time, the veteran suffered from
cirrhosis of the liver.  Dr. Moore further stated that he
understood that the original cirrhosis was the result of
alcohol abuse which in turn followed traumatic experiences
whilst the veteran was in the service during World War II.
The physician concluded that he would therefore accept that
the veteran's death was indirectly related to his time in
service.

The Board notes that the statement from Dr. Moore, though
lacking clinical support, nevertheless provide competent
evidence supporting the medical nexus required by Caluza v.
Brown, 7 Vet.App. 498 (1995), to assert a well grounded
claim.  See also Watai v. Brown, 9 Vet.App. 441 (1996).   As
the claim is well-grounded, the VA therefore has a duty to
assist the claimant in the development of facts pertinent to
her claim under 38 C.F.R. � 3.103(a) (1993).

Dr. Moore indicated that he treated the veteran for 12 years
prior to his death, yet clinical records of such treatment
are not on file.  The United States Court of Veterans Appeals
(Court) has determined that the VA's duty to assist requires
that the VA seek to obtain records or documents when put on
notice of the possible existence of certain records and their
relevance. Murincsak v. Derwinski, 2 Vet.App. 363 (1992).

The death certificate does not indicate whether an autopsy
was performed.  If an autopsy was performed, its record
should be associated with the veteran's claims file.  See
38 C.F.R. � 3.312(a), regarding autopsy reports.

Although no medical evidence on file contradicts the
conclusions of Dr. Moore, the Board notes that the file lacks
comment from a VA physician as to the likelihood that the
veteran's cause of death was related to service or secondary
to a service-connected ailment.

In view of the foregoing, and in order to assist the
appellant in completing her application for VA benefits, the
case is REMANDED for the following action:

1.  The RO should take appropriate action
to contact the appellant and request the
names, addresses, and approximate dates
of treatment of all health care providers
(VA and non-VA) who treated the veteran
for cirrhosis, alcoholism, or his
reactive depression since 1966.  This
includes any clinical records of
treatment by Dr. Moore.  When the
appellant responds and provides any
necessary authorizations, the named
health care providers should be contacted
and asked to submit copies of all medical
records documenting their treatment which
are not already in the claims folder.
All records obtained should be associated
with the claims folder.

2. The RO should ascertain whether or not
the veteran was given an autopsy, and
obtain a copy of the autopsy report, if
extant.

3.  Thereafter the veteran's claims file
should be examined by a VA physician for
a medical opinion as to whether it is as
likely as not that the veteran's cause of
death was related to service.  The
physician should be asked to rectify all
medical conclusions on file relating to
the veteran's cause of death,
specifically addressing the statements of
Dr. Moore.

4. Thereafter, the RO should review the
record and the claim should be
readjudicated.  If the claim is denied,
the appellant should be provided a
supplemental statement of the case and
afforded an opportunity to respond.

Thereafter, the claim should be returned to the Board for
further review.  No action is required of the appellant until
she receives further notice.  The Board does not indicate any
factual or legal conclusions as to any final outcome
warranted in the appeal.

	BARBARA B. COPELAND
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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)
(1995).
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judge_norm: V L JORDAN

text:
Citation NR: 9702000
Decision Date: 01/28/97		Archive Date: 02/07/97
DOCKET NO.  95-06 378	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah

THE ISSUE

Entitlement to a waiver of recovery of an overpayment of
Department of Veterans Affairs (VA) benefits.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L. Spear Ethridge, Associate Counsel

INTRODUCTION

The veteran served on active duty in the Armed Forces from
May 1951 to May 1954.

The appellant raised an issue of service connection for the
cause of the veteran�s death at a personal hearing in
September 1994.  That issue has not been developed for
appellate review.

REMAND

In June 1984, the appellant was denied a waiver of
overpayment, by the Committee on Waivers and Compromises.
This decision was based on material fault of the claimant in
the creation of an indebtedness.  Based on a report of
income, in February 1986, the appellant� s death pension
adjustment was amended to zero percent.  There is no record
of notification that this action also caused an overpayment.
However, in a letter from the Regional Office (RO) to the
appellant, dated in October 1992, it was stated that a
request for waiver on a pension overpayment was denied
because the request was not received within 180 days of the
date which she was first notified of the indebtedness.  The
letter implied that she was notified of the indebtedness and
the time limit in which to file a waiver, by a letter dated
in February 1986 from the Debt Management Center in St. Paul,
Minnesota.  While the February 1986 letter of record appears
to indicate that the award was amended, it does not also
indicate that an additional overpayment was created.

At this point the Board is unable to determine from the
record whether the appeal is for a denial of overpayment
created in 1984 or 1986 or otherwise.  Therefore, the exact
amount of indebtedness is also unclear.  The RO is asked to
please clarify these issues in order that the Board may
render a decision on the merits of this claim.  Therefore,
this case is REMANDED to the RO for the following actions:

1.  The RO should clarify whether the
appeal centers around the June 1984,
Decision on Waiver of Indebtedness denial
of waiver of overpayment due to material
fault, or otherwise; namely an additional
overpayment possibly created sometime in
February 1985.  Any additional
determinations by the Committee on
Waivers and Compromises should be
included.

2.  After the development requested above
has been completed to the extent
possible, the RO should again review the
record.  If any benefit sought on appeal,
for which a notice of disagreement has
been filed, remains denied, the appellant
and her representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.

The purpose of this REMAND is to obtain clarifying
information and afford due process of law.  The Board
intimates no final disposition by this action.

	V. L. JORDAN
	Member, Board of Veterans' Appeals

(CONTINUED ON NEXT PAGE)

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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)
(1995).
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judge_norm: M W GREENSTREET

condition: headache

text:
Citation NR: 9704000
Decision Date: 02/04/97		Archive Date: 02/18/97
DOCKET NO.  94-46 404	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased rating for postoperative
residuals of a brain stem arteriovenous malformation, status
post intracerebral hemorrhage, with headaches and possible
seizures, currently evaluated as 50 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

H. Roberts, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1971 to June
1978.

This appeal arises before the Board of Veterans� Appeals
(Board) from a March 1994 rating decision of the Montgomery,
Alabama, Regional Office (RO) of the Department of Veterans
Affairs (VA), which granted service connection for a brain
stem arteriovenous malformation, status post intracerebral
hemorrhage with headaches and possible seizures, and
established a 50 percent disability rating.

The Board remanded this appeal in September 1996 in order to
clarify the veteran�s representation.  That matter has been
resolved, and this appeal is now again before the Board.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his postoperative residuals of a
brain stem arteriovenous malformation, status post
intracerebral hemorrhage, with headaches and possible
seizures, is more severe than currently evaluated, warranting
an increased rating.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran�s claim of entitlement to an
increased rating for postoperative residuals of a brain stem
arteriovenous malformation, status post intracerebral
hemorrhage, with headaches and possible seizures.

FINDINGS OF FACT

1.  All evidence necessary for an equitable disposition of
the veteran�s claim has been developed.

2.  The veteran�s postoperative residuals of a brain stem
arteriovenous malformation, status post intracerebral
hemorrhage, with headaches and possible seizures, are
productive of some low-level head discomfort every day, and a
moderately severe headache once in three weeks which is
usually right parietal.

CONCLUSION OF LAW

The criteria for a rating in excess of 50 percent for
postoperative residuals of a brain stem arteriovenous
malformation, status post intracerebral hemorrhage, with
headaches and possible seizures, are not met.  38 U.S.C.A.
�� 1155, 5107 (West 1991); 38 C.F.R. Part 4, �� 4.121,
4.124a, Diagnostic Codes 8009, 8100, General Rating Formula
for Major and Minor Epileptic Seizures (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the veteran�s claim is �well
grounded� within the meaning of 38 U.S.C.A. � 5107(a) (West
1991); that is, he has presented a claim that is plausible.
He has not alleged that there are any records of probative
value that may be obtained which have not already been
associated with his claims folder.  The Board accordingly
finds that the duty to assist the veteran, as mandated by
38 U.S.C.A. � 5107(a) (West 1991), has been satisfied.

The veteran contends that his postoperative residuals of a
brain stem arteriovenous malformation, status post
intracerebral hemorrhage, with headaches and possible
seizures, is more severe than currently evaluated, warranting
an increased rating.  After a review of the record, the Board
finds that the veteran�s contentions are not supported by the
evidence, and his claim is denied.

The veteran established service connection for postoperative
residuals of a brain stem arteriovenous malformation, status
post intracerebral hemorrhage, with headaches and possible
seizures by means of a March 1994 rating decision, which
assigned a 50 percent disability rating.  That rating
decision is the subject of this appeal.

The severity of a disability is ascertained, for VA rating
purposes, by application of the criteria set forth in VA�s
Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1995)
(Schedule).  A hemorrhage from brain vessels is evaluated
pursuant to the criteria found in Diagnostic Code 8009 of the
Schedule.  38 C.F.R. � 4.124a (1995).  Under those criteria,
the vascular conditions are rated at 100 percent for six
months following the hemorrhage.  Thereafter, the residuals
are rated, with a minimum rating of 10 percent.  38 C.F.R.
� 4.124a (1995).  The medical evidence indicates that the
veteran�s intracerebral hemorrhage occurred in June 1992.
Therefore, as the hemorrhage occurred more the six months
ago, the veteran�s residuals of the hemorrhage from brain
vessels will be rated.

At a July 1993 VA diseases and injuries of the brain
examination, the veteran complained of chronic headaches
which occurred about every three to four days and severe
headaches, �as if my head is going to come off,� with
associated nausea.  He had been treated with Elavil, Librax,
Percocet as needed, and those did seem to help the headaches
somewhat.  The veteran also complained of jerking of his
right arm and leg at night when he was asleep.  He stated
that his wife told him that it was fairly violent shaking
which lasted from one to two minutes and then resolved.  He
also complained a chronic ringing in his ears which he has
had for many years and which predates his hemorrhage.  The
physical examination found the patient alert and oriented
times three.  Mental status was intact.  Cranial nerves II-
XII were intact to direct testing.  Visual fields were full.
Pupils were 3 millimeters round and reactive to light.
Hearing was grossly normal.  On motor examination, the
veteran had 5/5 strength throughout his normal bulk and tone.
Sensory examination was intact to light touch and pinprick.
Deep tendon reflexes were 1+ in the upper extremities, 1+ in
the left patella, 2+ in the right patella, and 1+ ankle
jerks.  His gait was normal and he was able to tandem walk
well.  Finger-nose-finger and heel-knee-shin testing was
normal.  The examiner provided an impression of a brain stem
arteriovenous malformation, status post intracerebral
hemorrhage with intraventricular blood secondary to the
arteriovenous malformation, chronic vascular headaches and
possible seizures.  The examiner further stated that the
veteran had no obvious current neurologic deficits, although
he did have mildly assymetric deep tendon reflexes.  The
examiner also stated that �it is quite probable, however,
that these episodes of shaking that his wife describes are
factual seizures.�

The veteran has also been followed on a regular basis for his
headaches by a private physician.  A June 1994 private
medical record indicates that the veteran experienced an
episode which appears to have been a left cerebral ischemic
event, possibly related to migraine versus small vessel
ischemic disease.  The veteran had a severe headache, right-
sided numbness and weakness, and slurred speech.  He could
talk and understand.  A November 1994 private medical record
reveals that the veteran has some low-level head discomfort
every day, but has a moderately severe headache once in three
weeks and it is usually right parietal.  The veteran did not
have any visual symptoms, lateralized numbness, or weakness
with it.  He had no further recurrence of cerebral ischemic
events.  The veteran claimed that his balance had been �off�
since his June 1992 cerebral hemorrhage, that it was more so
when he was standing still, and that he was �not able to look
at the ground such as being on a ladder.�  The examination
found the veteran alert and cheerful.  Blood pressure was
120/70.  Pulse rate was �in the 80�s�.  Eye movements were
full with no nystagmus.  Pupils were three millimeters,
equal, and reactive.  Visual fields were full.  Discs were
sharp.  He was able to walk tandem.  Romberg�s was negative.
Deep tendon reflexes were symmetrical and 1+ on the upper and
lower extremities.  Plantars were flexor.  Sensations were
normal.  However, when asked to stand on one leg with his
eyes closed, the veteran �tends to waver.�  The examiner
provided an assessment of combination-type headaches, which
were much improved, a history of a left cerebral transient
ischemic attack versus migraine five months ago with no
recurrence, and status post gamma knife treatment for
arteriovenous malformation.

The veteran�s chronic vascular headaches are evaluated
pursuant to the criteria for migraine headaches found in
Diagnostic Code 8100.  Pursuant to those criteria, 50 percent
is the maximum available rating, which is warranted for
migraines with very frequent completely prostrating and
prolonged attacks productive of severe economic
inadaptability.

The record does not show that the RO expressly considered
referral of this case to the Chief Benefits Director or the
Director, Compensation and Pension Service, for the
assignment of an extraschedular rating under 38 C.F.R. �
3.321(b)(1) (1995).  The United States Court of Veterans
Appeals (Court) has recently held that the Board is precluded
by regulation from assigning an extraschedular rating under
38 C.F.R. � 3.321(b)(1) in the first instance; however, the
Board is not precluded from considering whether referral to
the appropriate first-line official is required.  The Board
is still obligated to seek out all issues that are reasonably
raised from a liberal reading of documents or testimony of
record and to identify all potential theories of entitlement
to a benefit under the law and regulations.  Floyd v. Brown,
9 Vet.App. 88 (1996).  Moreover, the Court has also held that
the Board must address referral under 38 C.F.R. � 3.321(b)(1)
only when circumstances are presented which the Director of
VA�s Compensation and Pension Service might consider
exceptional or unusual.  Shipwash v. Brown, 8 Vet.App. 218,
227 (1995).  Having reviewed the record with these holdings
in mind, the Board finds no basis for action on the question
of the assignment of an extraschedular rating for the
veteran�s headaches.

The July 1993 VA diseases and injuries of the brain
examination also diagnosed possible seizures.  The veteran
complained of jerking of his right arm and leg at night when
he was asleep.  The veteran stated that his wife told him
that the shaking was fairly violent and would last from one
to two minutes and then resolve.  The examiner stated that it
is quite probable that these episodes of shaking that the
veteran�s wife describes are factual seizures.  A December
1992 private electroencephalogram report found the no
epileptiform discharges were seen.  The veteran claims that
he has seizures at least two times per month and that they
usually occur at night while he is asleep.

Seizures are evaluated pursuant to the General Rating Formula
for Major and Minor Epileptic Seizures.  38 C.F.R. � 4.124a
(1995).  Pursuant to those criteria, a 10 percent rating is
warranted for a confirmed diagnosis of epilepsy with a
history of seizures.  38 C.F.R. � 4.124a (1995).  To warrant
a rating for epilepsy, the seizures must be witnessed or
verified at some time by a physician.  38 C.F.R. � 4.121
(1995).  The Board finds that the veteran does not have a
confirmed diagnosis of epilepsy or of any seizure disorder.
The only diagnosis is of �possible seizures,� which an
examiner has stated are quite probably factual.  Therefore,
in the absence of a confirmed diagnosis, a compensable rating
is not warranted for the veteran�s possible seizures.

The July 1993 VA diseases and injuries of the brain
examination provided a diagnosis of chronic vascular
headaches and possible seizures.  The examiner also stated
that the veteran had no obvious current neurologic deficits
although he does have mildly asymmetric deep tendon reflexes.
Although the July 1993 VA examination found chronic ringing
in the veteran�s ears, that examination also states that he
had the ringing for many years and that it predated his
hemorrhage.  The medical evidence does not show that the
veteran�s ringing in his ears a residual of his hemorrhage.
The veteran has also claimed that he has a loss of
equilibrium, that he experiences loss of memory of current
events, and that he has trouble concentrating.  However, the
medical evidence of record does not show these claimed
conditions, other than that the veteran �wavers� while
standing on one foot with his eyes closed.  The Board finds
that the medical evidence of record does not show any
additional ratable residuals of the veteran�s intracerebral
hemorrhage.

Accordingly the Board finds that the criteria for a rating in
excess of 50 percent for postoperative residuals of a brain
stem arteriovenous malformation, status post intracerebral
hemorrhage, with headaches and possible seizures, are not
met, and the veteran claim is denied.  38 U.S.C.A. �� 1155,
5107 (West 1991); 38 C.F.R. Part 4, �� 4.121, 4.124a,
Diagnostic Codes 8009, 8100, General Rating Formula for Major
and Minor Epileptic Seizures (1995).

	(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to an increased rating, greater than 50 percent,
for postoperative residuals of a brain stem arteriovenous
malformation, status post intracerebral hemorrhage, with
headaches and possible seizures, is denied.

	M. W. GREENSTREET
	Acting Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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