judge_norm: FRANK J FLOWERS

text: This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).

text:
Citation Nr: 0729000
Decision Date: 09/14/07    Archive Date: 09/25/07

DOCKET NO.  06-16 500	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for diabetes mellitus
type II.

2.  Entitlement to service connection for hypertension,
peripheral neuropathy of the upper and lower extremities,
erectile dysfunction, and retinopathy as secondary to
diabetes mellitus type II.

REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America,
Inc.

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Lawrence W. Klute, Associate Counsel

INTRODUCTION

The veteran served on active duty from November 1969 to April
1974.

This matter comes to the Board of Veteran's Appeals (Board)
on appeal from an August 2005 decision by the RO.

The veteran testified at a hearing held at the RO during
February 2006 before a decision review officer.  He also
testified at a hearing held at the RO during June 2007 before
the undersigned Board member.

The Board notes that in his October 2005 notice of
disagreement (NOD), the veteran added a new basis for his
claims of service connection for diabetes mellitus type II
and related secondary disorders, that of exposure to
radioactive nuclides.  This claim has not been further
developed, and is therefore referred to the RO for such
further action as may be appropriate.

REMAND

In his March 2005 claim, the veteran states that he was first
diagnosed with diabetes mellitus type II at VA's Tulsa,
Oklahoma, Community Based Outpatient Clinic (CBOC) during
July 2002.  In his claim, he also indicated that his first
treatment for diabetes mellitus type II and claimed related
secondary disorders started in July 2000 at the Ann Arbor
VAMC.  The Board notes that the RO has not yet obtained the
veteran's VA treatment records from the Tulsa CBOC, and the
treatment records obtained from the Ann Arbor VAMC only cover
the period from June 5, 2003 to March 12, 2005 (review of the
June 5, 2003, treatment report indicates that treatment
started earlier).

The Board notes that records generated by VA facilities that
may have an impact on the adjudication of a claim are
considered constructively in the possession of VA
adjudicators, regardless of whether those records are
physically in the claims file.  See Bell v Derwinski, 2 Vet.
App. 611, 613 (1992).  Accordingly, a remand is necessary for
the additional development of obtaining records.

For the reasons stated, this case is REMANDED for the
following actions:

1.  Obtain all treatment records from
VA's CBOC in Tulsa, Oklahoma,
specifically those for the period from
January 1, 2000 to December 31, 2000.
Also obtain all treatment records from
the Ann Arbor VAMC from January 1, 2000
to the present time.  The evidence
obtained should be associated with the
claims file.

2.  After undertaking any other
development deemed appropriate, the RO
should consider the issues on appeal in
light of all information or evidence
received.  If any benefit sought is not
granted, the veteran and his
representative should be furnished with a
supplemental statement of the case and
afforded an opportunity to respond before
the record is returned to the Board for
further review.

After the veteran and his representative have been given an
opportunity to respond to the SSOC, the claims file should be
returned to this Board for further appellate review.  No
action is required by the veteran until he receives further
notice, but he may furnish additional evidence and argument
while the case is in remand status. Kutscherousky v. West, 12
Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995);
Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).  The
purposes of this remand are to procure clarifying data and to
comply with governing adjudicative procedures.  The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition of this appeal.

This appeal must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner.  See 38
U.S.C.A. �� 5109B, 7112 (West Supp. 2007).

________________________________
FRANK J. FLOWERS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board is appealable to the Court.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of this appeal.  38
C.F.R. � 20.1100(b) (2006).


series: legacy

judge_norm: ALAN S PEEVY

disposition: denied

text:
Citation Nr: 0730000
Decision Date: 09/24/07    Archive Date: 10/01/07

DOCKET NO.  05-06 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York

THE ISSUES

1.  Entitlement to an effective date prior to March 27, 1996,
for the grant of a 70 percent evaluation for post traumatic
stress disorder (PTSD).

2.  Entitlement to an effective date prior to June 1, 2003,
for the grant of a 100 percent evaluation for PTSD.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

J. N. Moats, Associate Counsel

INTRODUCTION

The veteran had active duty service from July 1967 to July
1971.

The issue of entitlement to an effective date prior to March
27, 1996, for the grant of a 70 percent evaluation for PTSD
comes before the Board of Veterans' Appeals (Board) on appeal
from a December 2004 rating decision by a Regional Office
(RO) of the Department of Veterans Affairs (VA).  A notice of
disagreement was received in January 2005, a statement of the
case was issued in May 2005, and a substantive appeal was
received in May 2005.

Further, the issue of entitlement to an effective date prior
to June 1, 2003, for the grant of a 100 percent evaluation
for PTSD comes before the Board of Veterans' Appeals (Board)
on appeal from a September 2003 rating decision by a Regional
Office (RO) of the Department of Veterans Affairs (VA).  A
notice of disagreement was received in October 2003, a
statement of the case was issued in December 2004, and a
substantive appeal was received in January 2005.

FINDINGS OF FACT

1.  An April 1996 rating decision assigned a 70 percent
evaluation for the veteran's PTSD, effective March 27, 1996;
the veteran did not file a notice of disagreement to initiate
an appeal from this determination.

2.  The veteran filed a formal claim for a total disability
rating based on individual unemployability, which was also a
claim for an increased rating for his service-connected PTSD,
on July 22, 2003.

3.   It was not factually ascertainable prior to June 1,
2003, that the veteran's service-connected PTSD increased in
severity so as to meet the criteria for a scheduler 100
percent rating.

CONCLUSIONS OF LAW

1.  The April 1996 rating decisions is final.  38 U.S.C.A.
� 7105(c) West 2002).

2.  In light of the finality of the April 1996 rating
decision, the criteria for assignment of an effective date
prior to March 27, 1996, for a 70 percent evaluation for the
veteran's service-connected PTSD have not been met.
38 U.S.C.A. �� 1155, 5110, 5107, 7105(c) (West 2002);
38 C.F.R. ��  3.155, 3.157, 3.400, Part 4, Diagnostic Code
9411 (2007).

3.  The criteria for assignment of an effective date prior to
June 1, 2003, for a 100 percent evaluation for the veteran's
service-connected PTSD have not been met.  38 U.S.C.A.
�� 1155, 5110, 5107 (West 2002); 38 C.F.R. ��  3.155, 3.157,
3.400, Part 4, Diagnostic Code 9411 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA).  Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000), is codified at 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5106, 5107 and 5126; see also 38 C.F.R. �� 3.102,
3.156(a), and 3.326(a).  Under the VCAA, VA has a duty to
notify the claimant of any information and evidence needed to
substantiate and complete a claim, and of what part of that
evidence is to be provided by the claimant and what part VA
will attempt to obtain for the claimant.  38 U.S.C.A. �
5103(a); 38 C.F.R � 3.159(b)(1); Quartuccio v. Principi, 16
Vet.App. 183, 187 (2002).

With respect to the issue of entitlement to an earlier
effective date for a 100 percent disability rating, the
record shows that in a September 2004 VCAA letter, the
appellant was informed of the information and evidence
necessary to warrant entitlement to this issue.  The
appellant was also advised of the types of evidence VA would
assist him in obtaining as well as his own responsibilities
with regard to identifying relevant evidence.  See Quartuccio
v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16
Vet.App. 370 (2002).

The Board also notes that the September 2004 VCAA letter
notified the appellant of the need to submit any pertinent
evidence in the appellant's possession.  In this regard, the
appellant was advised, at page 1, to submit any evidence in
his possession that pertains to his claim.  The Board finds
that the requirements of 38 C.F.R. � 3.159(b)(1) have been
met.  The Board concludes that all notices required by VCAA
and implementing regulations were furnished to the appellant
and that no useful purpose would be served by delaying
appellate review to send out additional VCAA notice letters.

The United States Court of Appeals for Veterans Claims'
decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004)
held, in part, that a VCAA notice as required by 38 U.S.C. �
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits.  In this case, a September 2003
rating decision granted a 100 percent disability rating for
PTSD, effective June 1, 2003.  The appellant initiated the
current appeal as to the effective date in his October 2003
notice of disagreement.  In September 2004, a VCAA letter was
issued.  The VCAA letter notified the claimant of what
information and evidence is needed to substantiate his claim,
as well as what information and evidence must be submitted by
the claimant, what information and evidence will be obtained
by VA, and the need for the claimant to submit any evidence
in his possession that pertains to the claim.

The Board finds that any defect with respect to the timing of
the VCAA notice requirement was harmless.  Although the
notice provided to the claimant in September 2004 was not
given prior to the first AOJ adjudication of the claim, the
notice was provided prior to adjudication of the effective
date issue in the December 2004 statement of the case and
certification of the veteran's claim to the Board in January
2006.  The contents of the notice fully complied with the
requirements of 38 U.S.C.A. � 5103(a) and 38 C.F.R.
� 3.159(b).  The claimant has been provided with every
opportunity to submit evidence and argument in support of his
claim, and to respond to VA notices.  Therefore, to decide
the appeal would not be prejudicial to the claimant.

During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
� 5103(a) and 38 C.F.R. � 3.159(b) apply to all five elements
of a service connection claim.  Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability.  The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. �
5103(a) and 38 C.F.R. � 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486.  Additionally, this notice must include notice
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded.  Id. at 488.  Although the present appeal involves
the issue of an earlier effective date, VA believes that the
Dingess/Hartman analysis must be analogously applied.  In the
present appeal, the September 2004 VCAA letter provided
notice to the veteran of what type of information and
evidence was needed to substantiate the claim for an earlier
effective date.  Thus, the Board concludes that requirements
of Dingess/Hartman have been met.

Furthermore, the Board finds that there has been substantial
compliance with the assistance provisions set forth in the
law and regulations.  The record in this case includes
service medical records and post service medical records.
The Board finds that the record as it stands includes
adequate competent evidence to allow the Board to decide the
case and no further action is necessary.  See generally 38
C.F.R.
� 3.159(c)(4).  No additional pertinent evidence has been
identified by the claimant.

With respect to the issue of an effective date prior to March
27, 1996 for a 70 percent disability rating, as the Board
determines below that the law is dispositive, the VCAA is not
applicable.  Congress, in enacting the VCAA, noted the
importance of balancing the duty to assist with "the
futility of requiring VA to develop claims where there is no
reasonable possibility that the assistance would substantiate
the claim."  Mason v. Principi, 16 Vet.App. 129, 132 (2002)
(quoting 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000)
(statement of Sen. Rockefeller)).  When the law and not the
evidence is dispositive of the claim, the VCAA is not
applicable.  See Mason, 16 Vet.App. at 132 (VCAA not
applicable to a claim for nonservice-connected pension when
the claimant did not serve on active duty during a period of
war); Smith (Claudus) v. Gober, 14 Vet.App. 227 (2000) (VCAA
did not affect a federal statute that prohibited payment of
interest on past due benefits), aff'd, 28 F.3d 1384 (Fed.
Cir. 2002).

For all the foregoing reasons, the Board concludes that VA's
duties to the claimant have been fulfilled with respect to
the issues on appeal.

Analysis

Once a formal claim for compensation has been allowed,
38 C.F.R. � 3.157(b)(1) provides, in pertinent part, that the
date of a VA outpatient or hospital examination or the date
of admission to a VA or uniformed services hospital will be
accepted as the date of receipt of a claim.  Further,
38 C.F.R. � 3.157(b)(2) provides that the date of receipt of
evidence from a private physician or layman will be accepted
as a claim.  Also, any communication or action indicating an
attempt to apply for one or more benefits under the laws
administered by VA from a claimant, his duly authorized
representative, a member of Congress, or some person acting
as a next friend of a claimant who is not sui juris may be
considered an informal claim.  Such an informal claim must
identify the benefit sought.  38 C.F.R. � 3.155(a).

Except as provided in paragraph (o)(2) of 38 C.F.R. � 3.400,
the effective date of increased evaluations of compensation
is the date of receipt of claim or date entitlement arose,
whichever is later.  38 C.F.R. � 3.400(o)(1).  The effective
date of an increased evaluation will be the earliest date as
of which it is factually ascertainable that an increase in
disability had occurred if the claim is received within one
year from such date, otherwise the effective date is the date
of receipt of claim.  38 C.F.R. � 3.400(o)(2).

Effective Date Prior to March 27, 1996 for a 70 Percent
Evaluation for PTSD

The present appeal involves the issue of entitlement to an
effective date prior to March 27, 1996, for the grant of a 70
percent evaluation for PTSD.  Initially, the Board notes that
in an April 1996 rating decision, the RO granted a 70 percent
disability rating for the veteran's PTSD, effective March 27,
1996.  The veteran was notified of this decision in a May
1996 letter.  The veteran did not file a notice of
disagreement to initiate an appeal from this determination.
The Board acknowledges that in October 1996, the veteran
filed a statement entitled "Agent Orange Claim" and listed
PTSD.  However, this statement cannot be construed as a valid
notice of disagreement to the April 1996 rating decision
because it does not express dissatisfaction or disagreement
with the April 1996 rating decision pursuant to 38 C.F.R.
� 20.201.  Under the circumstances, the April 1996 rating
decision became final.  38 U.S.C.A. � 7105(c).

In a recent case, the United States Court of Appeals for
Veterans Claims (Court) acknowledged that there were two ways
to overcome the finality of a prior decision assigning an
effective date: either by showing new and material evidence
or clear and unmistakable error.  Rudd v. Nicholson, 20
Vet.App. 296 (2006).

However, with regard to a new and material evidence analysis
in an earlier effective date claim, such an analysis could
not bring about an earlier effective date since the proper
effective date of an award based on a claim to reopen could
be no earlier than the date on which the request to reopen
was received.  A July 1993 determination by the RO continued
a 50 percent disability rating for the veteran's PTSD.  The
veteran did not file a notice of disagreement to initiate an
appeal from this determination.  In fact, the next
documentation in the claims file is an April 1996 claim for
an increased rating along with a March 27, 1996 medical
opinion from a VA doctor.  Subsequently, the April 1996
rating decision granted an increased disability rating to 70
percent, effective the date of the March 27, 1996 VA medical
opinion.  Thus, a new and material evidence analysis would
clearly be of no benefit to the veteran in this case in light
of the July 1993 final determination and the April 1996 claim
to reopen.

Moreover, clear and unmistakable evidence has not been
alleged by the veteran with respect to the April 1996 rating
decision.  The December 2004 rating decision only found clear
and unmistakable error in the January 1992 rating decision,
which granted service connection for PTSD.  Specifically, the
December 2004 rating decision found that the effective date
assigned for the grant of service connection should have been
January 6, 1991 instead of January 6, 1992.  The December
2004 rating decision did not find clear and unmistakable
error in the April 1996 rating decision in the assignment of
the 70 percent rating, effective March 27, 1996.

In sum, there can be no freestanding claim for an earlier
effective date because to allow such a claim would be
contrary to the principle of finality set forth in 38
U.S.C.A. � 7105.  Thus, the finality of the April 1996 rating
decision precludes an attempt to claim an earlier effective
date for the assignment of a 70 percent disability rating.
Thus, an effective date prior March 27, 1996 for a 70 percent
disability is not warranted.  The Board may not grant a
benefit that the appellant is not eligible to receive under
statutory law.  See Davenport v. Principi, 16 Vet. App. 522
(2002); Harvey v. Brown, 6 Vet. App. 416 (1994).  In other
words, Congress enacts federal laws authorizing monetary
benefits, and, unless an individual meets all of the
requirements of a particular law, he or she is not entitled
to the benefit; and the benefit cannot be awarded, regardless
of the circumstances.  See Sabonis v. Brown, 6 Vet.App. 426
(1994).

Effective Date Prior to June 1, 2003 for a 100 Percent
Evaluation for PTSD

The veteran also contends that he is entitled to an effective
date prior to June 1, 2003, for a 100 percent rating for his
service-connected PTSD.  The veteran asserts that he appealed
a previous July 1998 rating decision in August 1998 that
continued his 70 percent disability rating for PTSD, and
thus, a 100 percent disability rating is warranted from the
date of the August 1998 appeal.  In a July 1998 rating
decision, the RO continued the 70 percent disability rating
for the veteran's PTSD.  The veteran was notified of this
decision in an August 1998 letter.  Although, the veteran
asserts that he filed a timely notice of disagreement in
August 1998, there is no record of any filing during this
period in the claims file.  The Court has held that in the
absence of clear evidence to the contrary, the law presumes
the regularity of the government's administrative processes.
Jones v. West, 12 Vet.App. 98, 100 (1998); Ashley v.
Derwinski, 2 Vet.App. 62, 64-65 (1992).  The Court has also
specifically held that a statement by a claimant, standing
alone, is not sufficient to rebut the presumption of
regularity in VA operations.  Id.  Therefore, the Board is
unable to conclude that VA received a timely notice of
disagreement as alleged by the veteran.  Under the
circumstances, the July 1998 rating decision became final.
38 U.S.C.A. � 7105(c).  On July 22, 2003, the veteran filed a
claim for a total disability rating based on individual
unemployability due to a service connected disability (TDIU).
As such, a claim for an increased rating for PTSD was also
raised.  A September 2003 rating decision granted a
100 percent evaluation for the veteran's PTSD, effective June
1, 2003, in lieu of granting benefits based on individual
unemployability.

The first communication received from the veteran following
the July 1998 rating decision, indicating a desire to seek an
increased evaluation for his service -connected PTSD was
received on July 22, 2003.  With consideration of the above
analysis that the July 1998 rating decision is final, and the
first claim for an increase, received thereafter, was
received on July 22, 2003, the general rule, as provided at
38 C.F.R. � 3.400(o)(1), is that the effective date of the
award of an increased evaluation is the date of the veteran's
claim, July 22, 2003, or the date entitlement is shown,
whichever is later.  The veteran has been awarded a
100 percent evaluation for PTSD from June 1, 2003.
Therefore, the focus of the Board's review is whether it is
factually ascertainable that the veteran experienced an
increase in his service-connected PTSD during the year prior
to July 22, 2003, i.e. from July 22, 2002 to June 1, 2003.
See Quarles v. Derwinski, 3 Vet.App. 129, 135 (1992); see
also Harper v. Brown, 10 Vet.App. 125, 126 (1997)
(38 U.S.C.A. � 5110(b)(2) and 38 C.F.R. � 3.400(o)(2) are
applicable only where the increase precedes the claim
(provided also that the claim is received within one year
after the increase)).  Therefore, in order to be assigned an
effective date prior to June 1, 2003, for a 100 percent
evaluation for PTSD, it must be factually ascertainable that
the veteran's service-connected PTSD underwent an increase
during the year prior to the veteran's claim.  In determining
whether or not an increase was factually ascertainable during
the year prior, the Board will review the entirety of the
evidence of record.  See Hazan v. Gober, 10 Vet.App. 511
(1997); Swanson v. West, 12 Vet.App. 442 (1999).

The veteran's service-connected PTSD has been evaluated under
the provisions of Diagnostic Code 9411.  38 C.F.R. � 4.129.
Diagnostic Code 9411 provides that a 100 percent evaluation
will be assigned for PTSD when there is total occupational
and social impairment, due to such symptoms as:  gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; memory loss for names of close relative, own
occupation or own name.

The medical evidence prior to June 1, 2003 includes opinion
letters from a VA psychiatrist and VA treatment records.  A
February 2002 opinion from a VA psychiatrist indicated that
the veteran worked best under the least amount of pressure
and interpersonal contact.  The veteran had not managed
stress well.  The psychiatrist concluded that the veteran was
severely disabled and should have the most basic of work
routines available to him.  An October 2002 VA treatment
record showed that the veteran indicated that he needed help
managing job stress and anger.  A follow up November 2002 VA
treatment record showed that the veteran was seen for ongoing
anger management group.  Another November 2002 VA treatment
record showed that the veteran was depressed because he had a
seizure due to stress on the job and realized he will have to
retire disabled from his job.

A follow up January 2003 letter by the same psychiatrist who
wrote the February 2002 opinion indicated that the veteran
was highly anxious due to pressure in relation to his job,
specifically being mandated to go to another assignment.  The
veteran had a well established history of difficulty with
stressors.  The stress was causing unnecessary emotional
anxiety, increase in depression and impairment of his
cognitive functions.  The examiner opined that the veteran
should not be sent on the new assignment given his medical
and psychiatric condition and the potential danger to his
safety and psychological well being.  Another January 2003
letter showed that the veteran experienced the following
symptoms in relation to his PTSD: depression, intrusive
memories, survivor's guilt, agitation, nightmares, sleep
disorder, hyper-vigilance, dissociative experiences, hyper-
reactivity, isolative behavior, restricted range of affect,
irritability and anxiety.  Significantly, a January 2003 VA
treatment record from the same VA psychiatrist showed that
the veteran had signs of increased anxiety and depression.
The veteran described forgetting things as well as getting
confused and disoriented while traveling.  The examiner
indicated that it sounded like preoccupation and an inability
to maintain concentration.  The veteran's affect was in a
limited range with prominent depression and anxiety.  His
mood was consistent with depression, but he displayed no
thought disorder, delusions or hallucinations and was well
oriented.  On later questioning, the veteran admitted to
suicidal ideation.  An April 2003 VA treatment record showed
that the veteran was stable, coping well with war news and
avoiding as much as possible.  The record also noted that
family was stable at this time.  A follow up July 2003 letter
from the same VA psychiatrist stated that in the past several
years, it had become increasingly obvious that the veteran
could no longer work.  In our clinical assessment, the
veteran was totally and permanently industrially disabled and
unemployable.

An April 30, 2003 letter from the Office of Personnel
Management notified the veteran that his disability
retirement had been approved.  An OPM memorandum showed that
the effective date of retirement was May 31, 2003.  In his
July 2003 application for TDIU, the veteran indicated that
the date that his disability affected his full time
employment as well as the date he last worked and became too
disabled to work was May 31, 2003.

After reviewing the evidence, the Board must conclude that it
was not factually ascertainable prior to June 1, 2003, that
the criteria for a 100 percent disability rating had been
met.  The medical evidence does not show that the veteran had
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; or memory loss for names of
close relative, own occupation or own name, which are the
criteria for a 100 percent disability rating.   In fact, a
January 2003 VA treatment record showed that the veteran had
no thought disorder, delusions or hallucinations and was well
oriented.  The medical records mainly showed increased
depression and anxiety pursuant to problems coping at work.
Nevertheless, according to the veteran himself, he was able
to work until May 31, 2003.  Thus, as he was able to maintain
employment until that date, the veteran did not exhibit total
occupational and social impairment prior to June 1, 2003 as
required for a 100 percent disability rating.

Therefore, based on evidence, the Board must conclude that
the preponderance of the evidence is against assignment of a
100 percent rating prior to June 1, 2003.  As the
preponderance of the evidence weighs against the claim, the
benefit-of-the-doubt doctrine does not apply.  See
38 U.S.C.A. � 5107(b).

ORDER

Entitlement to an effective date prior to March 27, 1996, for
a 70 percent rating for PTSD is not warranted.  Entitlement
to an effective date prior to June 1, 2003, for a 100 percent
rating for PTSD is not warranted.  The appeal is denied as to
both issues.

____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: RONALD W SCHOLZ

disposition: granted

condition: tinnitus

text:
Citation Nr: 0731000
Decision Date: 10/02/07    Archive Date: 10/16/07

DOCKET NO.  06-23 185	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for bilateral hearing
loss.

2.  Entitlement to service connection for tinnitus.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

David Ganz, Associate Counsel
INTRODUCTION

The veteran had active military service from December 1942 to
November 1945.

This matter comes to the Board of Veterans' Appeals (Board)
from a May 2005 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Nashville, Tennessee,
which denied entitlement to service connection for bilateral
hearing loss and tinnitus.

The issue of bilateral hearing loss is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.

FINDING OF FACT

Resolving all doubt, the competent medical evidence shows a
relationship between the current diagnosis of tinnitus and
service.

CONCLUSION OF LAW

Tinnitus was incurred in service. 38 U.S.C.A. �� 1110, 5103,
5103A (West 2002 and Supp. 2007); 38 C.F.R. �� 3.102, 3.303
(2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran seeks service connection for tinnitus.  He claims
that he is presently suffering from tinnitus as a result of
noise exposure during his service, particularly while working
as an aircraft mechanic from December 1942 to November 1945.
He testified that he worked on the flight line on aircraft
engines every two to three weeks and recalled that when he
had to adjust the carburetor he had to dip his head about ten
inches from the engine while it was running full throttle.
He indicated that when he was finished his ears would hurt.

In seeking VA disability compensation, a veteran generally
seeks to establish that a current disability results from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. � 1110.  "Service connection" basically means that
the facts, shown by evidence, establish that a particular
injury or disease resulting in disability was incurred
coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein.  This may
be accomplished by affirmatively showing inception or
aggravation during service or through the application of
statutory presumptions.  Where chronicity of a disease is not
shown in service, service connection may yet be established
by showing continuity of symptomatology between the currently
claimed disability and a condition noted in service.  A
veteran may also establish service connection if all of the
evidence, including that pertaining to service, shows that a
disease first diagnosed after service was incurred in
service.  38 C.F.R. � 3.303.

When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied.  38 U.S.C.A. �
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The record shows a present tinnitus disability.  A June 2006
private audiological examination shows a diagnosis of
constant bilateral tinnitus.  An April 2005 VA medical
examination report also notes that the veteran is suffering
from tinnitus.

The next issue is whether there is evidence of any in-service
incurrence of tinnitus.  The service medical records are
negative.  Personnel records confirm, however, that the
veteran served as an aircraft mechanic in service.  Based on
these records and the veteran's credible testimony of
exposure to aircraft engine noise, the veteran's exposure to
acoustic trauma in service is conceded.   See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).

As the record shows a present tinnitus disability and
exposure to acoustic trauma in service, the determinative
issue is whether these are related.

The favorable evidence consists of a June 2006 medical
opinion from a private audiologist, which noted that it was
likely that the veteran's reported immediate onset of
tinnitus following his service was directly correlated to
military noise exposure.  The audiologist found that the
veteran had noise exposure in service while working as an
aircraft mechanic, which resulted in vibro-tactile sensations
and temporary threshold shift, as well as constant bilateral
tinnitus, worse in the left ear.  In making this decision,
the audiologist accounted for the veteran's post service
noise exposure while working in construction from 1945 to
1948 and occasional noise exposure from recreational
activities.

The negative evidence consists of an April 2005 VA hearing
examination report in which the examining audiologist noted
that it was less likely than not that the veteran's current
tinnitus was related to military service.  The examiner did
note the veteran's history of noise exposure to aircraft
engines in service, but based her opinion on the fact that
there are no documented audiometric examinations since the
veteran's discharge in 1945.

In the present case the evidence favorable to finding a
service connection is relatively equally-balanced with the
evidence unfavorable to finding a service connection. 38
U.S.C.A. � 5107(b).  The veteran has presented credible
testimony of chronic symptoms related to tinnitus from the
1950's to present.  He is competent to testify as to that
which can experience.  See Espiritu v. Derwinski, 2 Vet. App.
492 (1992).  The private audiologist who provided the
positive opinion based her finding in part on these chronic
complaints as well as the type of noise exposure the veteran
experienced in service.  Because the veteran has put forth
evidence in the form of a medical evaluation that essentially
counterbalances the VA examiner's evaluation, the evidence is
in equipoise.   Both the private audiologist and the VA
examiner's medical opinions are competent and there appears
to be no reason to value one over the other.  Therefore, all
doubt is resolved in the veteran's favor and service
connection for tinnitus is warranted.

The veteran's service connection claim for tinnitus has been
considered with respect to VA's duties to notify and assist.
Given the favorable outcome noted above, no conceivable
prejudice to the veteran could result from this adjudication.
See, Bernard v. Brown, 4 Vet. App. 384. 393 (1993).

ORDER

Entitlement to service connection for tinnitus is granted,
subject to the rules and payment of monetary benefits.

REMAND

The veteran seeks service connection for bilateral hearing
loss due to noise exposure from aircraft engines while
working as an aircraft mechanic during World War II.  He
testified that he worked on the flight line in service on
aircraft engines every two to three weeks and recalled that
when he had to adjust the carburetor he had to dip his head
about ten inches from the engine while it was running full
throttle.  He indicated that when he was finished his ears
would hurt.

A June 2006 private audiological examination shows a
diagnosis of severe-to-profound sensorineural bilateral
hearing loss from 500-4000 Hz in the left ear and 500-1000 Hz
in the right ear.  An April 2005 VA medical examination
report notes that the veteran is suffering from moderate
sloping to severe sensorineural bilateral hearing loss from
500-4000 Hz.  Personnel records also show the veteran served
as an aircraft mechanic during his service from December 1942
to November 1945.

As the record shows a current diagnosis of hearing loss in
both ears and exposure to acoustic trauma in service, medical
evidence is necessary to show a relationship between the two.
There are two medical opinions of record addressing the
etiology of the veteran's tinnitus.  An April 2005 VA
examiner found that the veteran's hearing loss was not due to
military service, noting that there were no documented
audiological evaluations of record for nearly 60 years after
service.  The examiner noted the veteran's in-service
exposure to engine noise and his post-service occupational
and recreational noise exposure, including flying private
planes.  A private physician submitted two statements in
January 2005 and May 2005 relating the veteran's current
hearing loss to his working on aircraft engines in service.
In May 2005, the physician noted that he had not tested the
veteran formally and that he was basing his opinion on the
veteran's reported history, which included a 1962 hearing
test on which the veteran was reportedly told he had a 50
percent hearing loss bilaterally.  Unfortunately, this 1962
document is not of record.  The veteran testified that it was
no longer available.  The veteran further testified that he
did not have significant post-service occupational or
recreational noise exposure, as documented by the VA
examiner.  He noted that he had a pilot's license but flew
Cessnas, which were very quiet.

Another medical evaluation is necessary to resolve this claim
as it appears both opinions of record are not based on
entirely accurate information.  A statement from a June 2006
audiologist also is of record, but an opinion regarding the
etiology of the hearing loss disability was not provided.
Specifically, the private audiologist noted the veteran's
exposure to acoustic trauma in service and that his hearing
loss was due to noise exposure, but indicated that it would
be impossible to quantify the effects, noting that the
hearing was likely due to a number of contributing factors,
including exposure to occupational and recreational noise.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the veteran for an audiology
examination to determine whether the
veteran's current bilateral hearing loss
is at least as likely as not related to
exposure to aircraft engine noise and
working on the flightline in service.

The claims folder must be made available
to the examiner for review in conjunction
with the examination.  The examiner must
provide an opinion as to whether any
current hearing loss is related to active
service.  A detailed rationale for all
medical opinions must be provided.

2.  Thereafter, if necessary, any
additional development deemed appropriate
should be accomplished.  The claim should
then be readjudicated.  If the claim
remains denied, the RO should issue a
supplemental statement of the case (SSOC)
containing notice of all relevant actions
taken on the claim, to include a summary
of the evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal, and allow an
appropriate period of time for response.

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

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2007).

______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: MARY GALLAGHER

condition: diabetes

condition: hypertension

condition: eye

condition: knee

condition: radiculopathy

condition: respiratory

condition: shoulder

condition: neck

text:
Citation Nr: 0801000
Decision Date: 01/10/08    Archive Date: 01/22/08

DOCKET NO.  05-25 164	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for diabetes mellitus,
type II associated with herbicide exposure.

2.  Entitlement to service connection for an unspecified left
ankle condition as a result of exposure to herbicides.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for glaucoma of the
left eye.

5.  Entitlement to service connection for an unspecified left
knee condition.

6.  Entitlement to service connection for peripheral
neuropathy, bilateral upper extremities.

7.  Entitlement to service connection for peripheral
neuropathy, bilateral lower extremities.

8.  Entitlement to service connection for asthma (claimed as
shortness of breath) as a result of asbestos exposure.

9.  Entitlement to service connection for bilateral plantar
fasciitis as a result of exposure to herbicides.

10.  Entitlement to service connection for fatigue syndrome
as a result of asbestos exposure.

11.  Entitlement to service connection for arthritis AC
(acromioclavicular) joint, right shoulder.

12.  Entitlement to service connection for an unspecified
neck condition.

13.  Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
calcaneal spur, right ankle.

14.  Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
glaucoma, right eye.

15.  Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for an
unspecified right knee condition.

16.  Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
herniated nucleus pulpous L5-S1.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Kelli A. Kordich, Counsel

INTRODUCTION

The veteran served on active duty from December 1967 to
November 1969.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2005 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina.

FINDINGS OF FACT

1.  The veteran does not have diabetes mellitus, type II.

2.  The veteran does not have an unspecified left ankle
condition.

3.  The veteran does not have hypertension.

4.  The veteran does not have glaucoma of the left eye.

5.  The veteran does not have an unspecified left knee
condition.

6.  Peripheral neuropathy of the bilateral upper extremities
is not shown by competent medical evidence to have a nexus or
relationship to service or exposure to herbicides during
service.

7.  Peripheral neuropathy of the bilateral lower extremities
is not shown by competent medical evidence to have a nexus or
relationship to service or exposure to herbicides during
service.

8.  The veteran does not have asthma that is attributable to
military service, including any in-service exposure to
asbestos or herbicides.

9.  The veteran's bilateral plantar fasciitis is not
attributable to military service, including any in-service
exposure to herbicides.

10.  The veteran's fatigue syndrome is not attributable to
military service, including any in-service exposure to
asbestos or herbicides.

11.  Arthritis of the AC joint, right shoulder, was not
manifested during the veteran's service or to a compensable
degree within one year of discharge from active military
service.

12.  An unspecified neck condition was not manifested during
the veteran's service or to a compensable degree within one
year of discharge from active military service.

13.  By rating decision in January 1998, the RO denied
entitlement to service connection for a calcaneal spur, right
ankle; the veteran was notified of the decision but he did
not initiate an appeal.

14.  The evidence associated with the claims file subsequent
to the January 1998 RO decision does not raise a reasonable
possibility of substantiating the claim of entitlement to
service connection for a calcaneal spur, right ankle.

15.  By rating decision in January 1998, the RO denied
entitlement to service connection for glaucoma, right eye;
the veteran was notified of the decision but he did not
initiate an appeal.

16.  The evidence associated with the claims file subsequent
to the January 1998 RO decision does not raise a reasonable
possibility of substantiating the claim of entitlement to
service connection for glaucoma, right eye.

17.  By rating decision in January 1998, the RO denied
entitlement to service connection for an unspecified right
knee condition; the veteran was notified of the decision but
he did not initiate an appeal.

18.  The evidence associated with the claims file subsequent
to the January 1998 RO decision does not raise a reasonable
possibility of substantiating the claim of entitlement to
service connection for an unspecified right knee condition.

19.  By rating decision in January 1998, the RO denied
entitlement to service connection for a herniated nucleus
pulpous L5-S1; the veteran was notified of the decision but
he did not initiate an appeal.

20.  The evidence associated with the claims file subsequent
to the January 1998 RO decision does not raise a reasonable
possibility of substantiating the claim of entitlement to
service connection for a herniated nucleus pulpous L5-S1.

CONCLUSIONS OF LAW

1.  Diabetes mellitus, type II, was not incurred in or
aggravated by active military service, to include exposure to
herbicides.  38 U.S.C.A. �� 1110, 1112, 1116, 5103, 5103A,
5107 (West 2002 & Supp. 2007); 38 C.F.R. �� 3.303, 3.304,
3.307, 3.309 (2007).

2.  An unspecified left ankle condition was not incurred in
or aggravated by active military service, to include exposure
to herbicides.  38 U.S.C.A. �� 1110, 1112, 1116, 5103, 5103A,
5107; 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309.

3.  Hypertension was not incurred in or aggravated by active
military service, and it may not be presumed to have been so
incurred.  38 U.S.C.A. �� 1110, 5103, 5103A, 5107; 38 C.F.R.
�� 3.303, 3.304, 3.307, 3.309.

4.  Glaucoma of the left eye was not incurred in or
aggravated by active military service.  38 U.S.C.A. �� 1110,
5103, 5103A, 5107; 38 C.F.R. �� 3.303, 3.304.

5.  An unspecified left knee condition was not incurred in or
aggravated by active military service.  38 U.S.C.A. �� 1110,
5103, 5103A, 5107; 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309.

6.  Peripheral neuropathy of the bilateral upper extremities
was not incurred in or aggravated by active military service,
to include exposure to herbicides.  38 U.S.C.A. �� 1110,
1112, 1116, 5103, 5103A, 5107; 38 C.F.R. �� 3.303, 3.304,
3.307, 3.309.

7.  Peripheral neuropathy of the bilateral lower extremities
was not incurred in or aggravated by active military service,
to include exposure to herbicides.  38 U.S.C.A. �� 1110,
1112, 1116, 5103, 5103A, 5107; 38 C.F.R. �� 3.303, 3.304,
3.307, 3.309.

8.  Asthma was not incurred in or aggravated by active
military service, to include exposure to asbestos or
herbicides.  38 U.S.C.A. �� 1110, 1112, 1116, 5103, 5103A,
5107; 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309.

9.  Bilateral plantar fasciitis was not incurred in or
aggravated by active military service, to include exposure to
herbicides.  38 U.S.C.A. �� 1110, 1112, 1116, 5103, 5103A,
5107; 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309.

10.  Fatigue syndrome was not incurred in or aggravated by
active military service, to include exposure to asbestos or
herbicides.  38 U.S.C.A. �� 1110, 1112, 1116, 5103, 5103A,
5107; 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309.

11.  Arthritis of the AC joint, right shoulder, was not
incurred in or aggravated by active military service, and it
may not be presumed to have been so incurred.  38 U.S.C.A. ��
1110, 5103, 5103A, 5107; 38 C.F.R. �� 3.303, 3.304, 3.307,
3.309.

12.  An unspecified neck condition was not incurred in or
aggravated by active military service, and it may not be
presumed to have been so incurred.  38 U.S.C.A. �� 1110,
5103, 5103A, 5107; 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309.

13.  The January 1998 rating decision denying service
connection for a calcaneal spur, right ankle, is final.  38
U.S.C.A. � 7105 (West 2002 & Supp. 2007); 38 C.F.R. � 20.1103
(2007).

14.  The additional evidence presented since the January 1998
rating decision is not new and material, and the claim for
service connection for a calcaneal spur, right ankle, is not
reopened.  38 U.S.C.A. � 5108 (West 2002 & Supp. 2007); 38
C.F.R. � 3.156 (2007).

15.  The January 1998 rating decision denying service
connection for glaucoma, right eye, is final.  38 U.S.C.A. �
7105; 38 C.F.R. � 20.1103.

16.  The additional evidence presented since the January 1998
rating decision is not new and material, and the claim for
service connection for glaucoma, right eye, is not reopened.
38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.

17.  The January 1998 rating decision denying service
connection for an unspecified right knee condition is final.
38 U.S.C.A. � 7105; 38 C.F.R. � 20.1103.

18.  The additional evidence presented since the January 1998
rating decision is not new and material, and the claim for
service connection for an unspecified right knee condition is
not reopened.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.

19.  The January 1998 rating decision denying service
connection for a herniated nucleus pulpous L5-S1 is final.
38 U.S.C.A. � 7105; 38 C.F.R. � 20.1103.

20.  The additional evidence presented since the January 1998
rating decision is not new and material, and the claim for
service connection for a herniated nucleus pulpous L5-S1 is
not reopened.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service connected claims

Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in active military service.  38 U.S.C.A. � 1110,
38 C.F.R. � 3.303.  That an injury occurred in service alone
is not enough; there must be chronic disability resulting
from that injury.  If there is no showing of a resulting
chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity.  38 C.F.R. � 3.303(b).

Certain chronic disabilities, such as arthritis (including
degenerative joint disease, i.e., osteoarthritis) and
cardiovascular disease, to include hypertension are presumed
to have been incurred in service if manifest to a compensable
degree within one year of discharge from active duty.  38
C.F.R. �� 3.307, 3.309.

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

A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975, and has a
disease listed in 38 C.F.R. � 3.309(e), shall be presumed to
have been exposed during such service to an herbicide agent,
unless there is affirmative evidence to establish that the
veteran was not exposed to any such agent during that
service.  The last date on which such a veteran shall be
presumed to have been exposed to an herbicide agent shall be
the last date on which he or she served in the Republic of
Vietnam during the period beginning on January 9, 1962, and
ending on May 7, 1975.  Service in the Republic of Vietnam
includes service in the waters offshore and service in other
locations.  Service connection for listed diseases will be
presumed if they are manifest to a compensable degree within
specified periods any time after service.  38 U.S.C.A.
� 1116; 38 C.F.R. �� 3.307(a)(6), 3.309(e), 3.313(a).

Also during the Vietnam era, Agent Orange was used for a
limited period of time in Korea.  Specifically, according to
information shared by the United States Department of Defense
(DOD) with VA, Agent Orange was used along the demilitarized
zone (DMZ) in Korea between April 1968 and July 1969.  DOD
data also indicates that fields of fire between the front
line defensive positions and the south barrier fence were
defoliated.  The size of the treated area was a strip of land
151 miles long and up to 350 yards wide from the fence to
north of the "civilian control line. "  Information
received by VA from DOD does not indicate that herbicide was
sprayed in the DMZ itself.  While the presumption of exposure
to Agent Orange only applies veterans who served in Vietnam,
a veteran's service in Korea and other areas outside of
Vietnam in which DOD has confirmed the use of herbicide
agents may be considered for purposes of establishing a claim
for direct service connection.  The Board notes that the
veteran did not serve in the Republic of Vietnam, but in
Korea, and the RO has conceded that he was in Korea during
the time Agent Orange was used and assigned to a unit
identified as being exposed to the herbicide.

Even if an appellant is found not entitled to a regulatory
presumption of service connection, the claim must still be
reviewed to determine if service connection can be
established on a direct basis.  See Combee v. Brown, 34 F.3d
1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and
Radiation Exposure Compensation Standards (Radiation
Compensation) Act, Pub. L. No. 98-542, � 5, 98 Stat. 2724,
2727-29 (1984), does not preclude a veteran from establishing
service connection with proof of actual direct causation).

There is no specific statutory or regulatory guidance with
regard to claims for service connection for asbestosis or
other asbestos-related diseases.  However, in 1988, VA issued
a circular on asbestos-related diseases that provided
guidelines for considering asbestos compensation claims.  See
Department of Veterans Benefits, Veterans' Administration,
DVB Circular 21-88-8, Asbestos-Related Diseases (May 11,
1988).  The information and instructions contained in the DVB
Circular have since been included in VA Adjudication
Procedure Manual, M21-1MR, part IV, subpart ii, ch. 1,
section H, 29, referencing ch. 2, section C, (last updated
September 29, 2006) (hereinafter "M21-1MR").  Also, an
opinion by VA's Office of General Counsel discusses the
development of asbestos claims.  VAOPGCPREC 4-2000, 65 Fed.
Reg. 33422 (2000). VA must analyze the veteran's claim of
entitlement to service connection for asbestosis under these
administrative protocols.  Ennis v. Brown, 4 Vet. App. 523,
527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

A.  Diabetes mellitus, type II; an unspecified left ankle
condition; hypertension; glaucoma of the left eye, and an
unspecified left knee condition.

Service medical records are negative for complaints,
treatment, or diagnosis of diabetes mellitus, type II,
hypertension, and glaucoma of the left eye.  They do show,
however, that the veteran was treated for a twisted left
ankle in June 1969 through October 1969.  X-rays were
negative.  They also show that the veteran was treated for
trauma of the left knee in May 1969.  On the October 1969
Report of Medical History, the veteran denied any "trick"
or locked knee, lameness, bone, joint, or other deformity.
The October 1969 separation examination showed normal
clinical evaluation of the lower extremities.

At a January 1998 VA examination, it was noted that the
veteran had a history of glaucoma of the right eye since
1988.  Private medical records as well as VA medical records
do not show a diagnosis of diabetes mellitus, type II; an
unspecified left ankle condition; hypertension; glaucoma of
the left eye; or an unspecified left knee condition.

In the absence of proof of a present disability there can be
no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-
44 (1992).  In Brammer, the United States Court of Appeals
for Veterans Claims (Court) stated that "Congress
specifically limits entitlement for service-connected disease
or injury to cases where such incidents have resulted in a
disability."  Brammer, 3 Vet. App. at 225.  The Court further
stated that where the proof is insufficient to establish a
present disability there could be no valid claim for service
connection.  Id.

Although the veteran asserts that he is entitled to service
connection for these disabilities, there is no medical
evidence of record that establishes he currently has these
disabilities.  Under these facts, a "disability" for VA
compensation benefit purposes is not shown to be present in
this case.  In the absence of a current disability, as
defined by governing law, these claims must be denied.

B.  Peripheral neuropathy, bilateral upper and lower
extremities

A review of the record indicates that the veteran did not
serve in Vietnam; however, records show he was stationed in
Korea during the time Agent Orange was used and assigned to a
unit identified as being exposed to herbicides.  The record,
however, does not indicate that the veteran has any of the
diseases for which service connection may be presumed in
those exposed to herbicide agents.  He has been diagnosed
with polyneuropathy as indicated in VA medical records dated
in April 2005, not acute or subacute peripheral neuropathy as
listed at 38 C.F.R. � 3.309(e).  The records indicate
etiology was undetermined but important causes were all ruled
out.  The VA medical records show that the degree of
neuropathy appeared relatively benign at this stage.  The
record does not indicate that he has ever been diagnosed with
acute or subacute peripheral neuropathy (which means
transient peripheral neuropathy that appears within weeks or
months of exposure to an herbicide agent and resolves within
two years of the date of onset).  Therefore, there is no
basis in the record upon which to award service connection
for peripheral neuropathy pursuant to 38 C.F.R. � 3.309(e).

The veteran could still be awarded service connection,
however, if entitlement could be established on a direct
basis.  In the instant case, such entitlement has not been
established.  There is no evidence of record to indicate that
peripheral neuropathy was present in service, nor is there
any evidence that peripheral neuropathy was present to a
compensable degree within one year of his separation from
service.  See 38 C.F.R. � 3.309(a).  A December 2005 VA
physician consultation refers to documentation of idiopathic
neuropathy.

Therefore, it is concluded that the preponderance of the
evidence is against the veteran's claims for service
connection for peripheral neuropathy of the bilateral upper
and lower extremities as secondary to exposure to herbicides
(Agent Orange) and on a direct basis.

C.  Asthma

In this case, the service medical records are silent for any
complaints, finding or diagnosis of a lung disability.  On
his October 1969 Report of Medical History, the veteran
denied asthma or shortness of breath.  The veteran's
personnel records show that he was a light weapons
infantryman.  Records are negative for asbestos exposure.  In
October 2004, the RO sent the veteran a letter requesting
that he provide answers to questions about his asbestos
exposure; however, the RO did not received a response.

There is no evidence of asbestosis being diagnosed, nor is
there any evidence suggesting that asthma was incurred or
aggravated during the veteran's period of service.  None of
the records on file suggest that the veteran has any current
lung disorder due to asbestos exposure, or suggest that the
veteran's lung condition is otherwise related to service.

The veteran was seen by Melton Stuckey, M.D., in October 1997
for complaints of sharp right flank pain and some shortness
of breath; the assessment was tendonitis, shortness of
breath.  Then, at his September 2004 VA Agent Orange
examination, the veteran denied any problems with his lungs,
and the examination showed the lungs clear to auscultation
percussion bilaterally without wheezes, rhonchi or rales.  VA
treatment records dated in January 2005 noted past medical
history of asthma, and a February 2005 physician assistant
entry noted computerized problem list was the source of a
notation of asthma, unspecified type, without mention of
status asthmaticus or acute exacerbation.

In addition, there is no medical opinion linking any current
lung disorder to his period of service, including on the
basis of exposure to asbestos.  While the veteran himself
contends that his asthma is etiologically related to service,
as a layperson, his statements as to medical causation do not
constitute competent medical evidence. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. � 3.159(a)(1)
(2007).

As for whether the veteran's asthma is related to exposure to
herbicides, the Board notes that asthma is not one of the
diseases for which service connection may be presumed in
those exposed to herbicide agents.

In short, there is no competent evidence of any lung
disorders in service or for decades after service, and no
competent evidence linking any current lung disability to
service.  The Board therefore finds that the preponderance of
the evidence is against the claim.  The Board has considered
the applicability of the benefit of the doubt doctrine; as
the preponderance of the evidence is against this claim,
however, that doctrine is not applicable.  See 38 U.S.C.A. �
5107.  The veteran's claim for service connection for asthma
is denied.

D.  Bilateral plantar fasciitis

Service medical records are negative for complaints,
treatment, or diagnosis of bilateral plantar fasciitis.  On
his October 1969 Report of Medical History, the veteran
denied any foot trouble.  The separation examination showed
normal clinical evaluation of the feet.

The record does show current bilateral plantar fasciitis, as
treatment records from Peterson and Plante Internal Medicine
dated August 1999 to September 2003 show a diagnosis of
plantar fasciitis in April 2003 treated with Vioxx.  Also, at
a December 2004 VA Mental Health History and Physical the
veteran reported pain in his feet that he thought might be
caused by exposure to Agent Orange.  Treatment records show
continued complaints of pain and burning of the feet.

There is no medical opinion, however, linking the veteran's
current plantar fasciitis to his period of service, including
on the basis of exposure to herbicides.  While the veteran
himself contends that his plantar fasciitis is etiologically
related to service, as a layperson, his statements as to
medical causation do not constitute competent medical
evidence. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992);
38 C.F.R. � 3.159(a)(1) (2007).  The Board notes that plantar
fasciitis is not one of the diseases for which service
connection may be presumed in those exposed to herbicide
agents.

There is no competent evidence of bilateral plantar fasciitis
in service or for many years after service, and no competent
evidence linking the veteran's current plantar fasciitis to
service.  The Board therefore finds that the preponderance of
the evidence is against the claim.  Although the doctrine of
reasonable doubt was considered, the evidence is not of such
approximate balance as to warrant its application.  38
U.S.C.A. � 5107.  The veteran's claim for to service
connection for bilateral plantar fasciitis is denied.

E.  Fatigue syndrome

Service medical records are negative for complaints,
treatment, or diagnosis of fatigue syndrome.  As noted above,
the veteran did not respond to the RO's October 2004 request
for information about his asbestos exposure.

Although treatment records from Peterson and Plante Internal
Medicine dated August 1999 to September 2003 show the veteran
complained of fatigue and described it as "tired out very
quickly," the records show no diagnosis of fatigue syndrome.
There is also no evidence of asbestos exposure, nor is there
any evidence suggesting that fatigue syndrome was incurred or
aggravated during the veteran's period of service.

None of the records on file suggest that the veteran has any
current fatigue syndrome due to asbestos exposure, or suggest
that the veteran's fatigue is otherwise related to service.
As for whether the veteran's fatigue is related to exposure
to herbicides, the Board notes that fatigue is not one of the
diseases for which service connection may be presumed in
those exposed to herbicide agents.  While the veteran is
competent to report that he has fatigue, as a lay person, he
has not been shown to be capable of making medical
conclusions; thus, his statements regarding causation are not
competent.  Espiritu.  Therefore, he cannot provide a
competent opinion regarding diagnosis and causation.

In short, there is no competent evidence of fatigue syndrome
in service or for many years thereafter, and no competent
evidence linking any current fatigue syndrome to service.
The Board finds that the preponderance of the evidence is
against the claim.  The veteran's claim for service
connection for fatigue syndrome is denied.

F.  Arthritis of the AC joint, right shoulder

Service medical records are negative for complaints,
treatment, or diagnosis of arthritis of the right AC joint.
On the October 1969 Report of Medical History, the veteran
denied a painful or "trick" shoulder.  The separation
examination noted normal clinical evaluation of the upper
extremities.

Although the veteran did not have any complaints concerning
his right shoulder AC joint at his January 1998 VA
examination, treatment records from Peterson and Plante
Internal Medicine dated June and July 2003 show complaints of
shoulder pain and x-ray evidence of arthritis of the AC
joint, and VA medical records dated in January 2005 noted
muscle wasting of the right upper trapezes.

There is no evidence of record, however, to indicate that
arthritis of the right shoulder AC joint was present in
service or to a compensable degree within one year of
separation from service.  See 38 C.F.R. � 3.309(a).  As the
record does not show arthritis of the right shoulder AC joint
until many years after service and includes no competent
medical opinion relating current right AC joint arthritis to
service, the preponderance of the evidence is against the
claim.  As such, the benefit of the doubt doctrine is not for
application, and service connection must be denied.  38
U.S.C.A. � 5107(b); Gilbert.

G.  Unspecified neck condition

Service medical records are negative for complaints,
treatment, or diagnosis of a neck condition.  The October
1969 separation examination shows normal clinical evaluation
of the head, face, neck and scalp as well as the spine, other
musculoskeletal.

The veteran had no complaints concerning his cervical spine
or neck at a January 1998 VA examination.  Treatment records
from Peterson and Plante Internal Medicine show complaints of
cervical pain in April 2003.  Also, VA treatment records note
musculoskeletal type pain, which Naproxen had helped.  A
January 2005 physician consultation noted fibromyalgia,
cervical area.  Cervical examination showed markedly tender
to palpation along the right cervical paraspinals.  The
assessment noted strain versus fibromyalgia.

Although there is some evidence of current neck disability,
there is no evidence of record to indicate that an
unspecified neck condition was present in service, nor is
there any evidence that arthritis was present to a
compensable degree within one year of the veteran's
separation from service.  See 38 C.F.R. � 3.309(a).

As the record does not show an unspecified neck condition
until many years after service and includes no competent
medical opinion relating the current neck condition to
service, the preponderance of the evidence is against the
claim.  As such, the benefit of the doubt doctrine is not for
application, and service connection must be denied.  38
U.S.C.A. � 5107(b); Gilbert.

II.  New and material evidence

Generally, a claim which has been denied in a final rating or
Board decision may not thereafter be reopened and allowed.
38 U.S.C.A. �� 7104, 7105(c).  The exception to this rule is
38 U.S.C.A. � 5108, which provides that if new and material
evidence is presented or secured with respect to a claim
which has been disallowed, the Secretary shall reopen the
claim and review the former disposition of the claim.

Under 38 C.F.R. � 3.156 (a), a claimant may reopen a finally
adjudicated claim by submitting new and material evidence.
New evidence means existing evidence not previously submitted
to agency decision makers.  Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim.  New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.

The Board must initially consider whether new and material
evidence has been received because it goes to the Board's
jurisdiction to reach the underlying claim and adjudicate the
claim de novo.  If the Board finds that new and material
evidence is not offered, that is where the analysis must end,
and what the RO may have determined in that regard is
irrelevant.  Further analysis, beyond consideration of
whether the evidence received is new and material is neither
required nor permitted.

The United States Court of Appeals for Veterans Claims
(Court) has held that the Board is required to review all of
the evidence submitted by a claimant since the last final
disallowance of a claim on any basis.  Evans v. Brown, 9 Vet.
App. 273, 285 (1996).

In addition, for the purpose of determining whether a case
should be reopened, the credibility of the evidence added to
the record is to be presumed.  Justus v. Principi, 3 Vet.
App. 510, 513 (1992).

The veteran's claims for service connection for a calcaneal
spur, right ankle; glaucoma, right eye; an unspecified right
knee condition; and a herniated nucleus pulpous L5-S1 were
denied in a January 1998 rating decision.

The veteran attempted to reopen his claim in September 2004.
By a rating decision dated January 2005, the RO denied
reopening the claims because the veteran had not submitted
new and material evidence.

The evidence on file at the time of the January 1998 rating
decision included:

Service medical records which showed no complaints,
treatment, or diagnoses of a calcaneal spur, right ankle;
glaucoma of the right eye; an unspecified right knee
condition; or a herniated nucleus pulpous L5-S1.

Medical records dated May 1989 to January 1992 from Beatrice
Gamble, D.C., which showed the veteran reported being
involved in a motor vehicle accident in November 1984 and had
complaints of low back pain with pain down to the knee.

Treatment records from Columbia Eye Clinic dated June 1986 to
May 1995 showed treatment for right eye glaucoma in 1988.

A hospital report from Baptist Medical Center dated December
1993 showed treatment for the veteran's right knee after he
twisted his leg getting out of his truck.  The diagnosis was
internal derangement of the knee with hemarthrosis.

Medical records from Dr. Alric C. Blake dated August 1996 to
December 1997 showed treatment for glaucoma.

Treatment records dated December 1997 from Dr. Carl Mitchell
noted complaints of right knee pain.

VA examination dated January 1998 showed a history of
glaucoma of the right eye since 1988.  Diagnoses also
included history of chronic mechanical low back pain as well
as probable early degenerative arthritis of the left ring
finger which were noted as unrelated to military service;
right ankle sprain with resultant loss of motion, pain, early
degenerative arthritis; and early osteoarthritis of the right
knee.

Evidence received subsequent to the January 1998 rating
decision included:

VA medical records which show a calcaneal spur on the
veteran's right ankle; treatment for glaucoma of the right
eye; and right knee surgery.  Medical records from Peterson
and Plante Internal Medicine dated August 1999 to September
2003 show that the veteran has a herniated nucleus pulpous,
L5-S1 with radiculopathy and L4-L5/L3-L4 disc bulge.

The additional medical evidence since the January 1998 rating
decision concerning the veteran's calcaneal spur, right
ankle; glaucoma of the right eye; unspecified right knee
condition; or herniated nucleus pulpous L5-S1 does not show a
nexus to service.  Rather, the evidence received after the
January 1998 rating decision is merely cumulative of evidence
previously of record in that it simply shows that the veteran
has been treated for these conditions.  This evidence does
not raise a reasonable possibility of substantiating the
claims.  What was missing at the time of the January 1998
rating decision -- and what is missing now -- is medical
evidence showing that these disabilities were present during
service or evidence linking any of these disabilities to the
veteran's active duty service.  In addition, the Board notes
that none of these claimed disabilities are diseases for
which service connection may be presumed in those exposed to
herbicide agents; thus, service connection cannot be presumed
on the basis of exposure to herbicides.

While the veteran's statements linking his claimed
disabilities to service are acknowledged, to the extent that
he is attempting to present evidence of etiology or medical
causation of disease or illness, he is not competent since it
has not been shown that he has the necessary medical skills
and training to offer opinions on such medical questions.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992).  The
veteran's contentions in this regard were previously of
record and his current contentions, being essentially the
same, are not new and material to his claim.

III.  Duties to notify and assist the claimant

VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2007).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical evidence or lay evidence that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a);
38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002).  In accordance with 38 C.F.R. � 3.159(b)(1),
proper notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide.  Proper notice must also ask
the claimant to provide any evidence in his or her possession
that pertains to the claim.  Notice should be provided to a
claimant before the initial unfavorable decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).

There is no issue as to providing an appropriate application
form or completeness of the application.  VA notified the
veteran in October 2004 of the information and evidence
needed to substantiate and complete a claim for service
connection, to include notice of what part of that evidence
is to be provided by the claimant, and notice of what part VA
will attempt to obtain.  VA informed the claimant of the need
to submit all pertinent evidence in his possession.  The
claimant was afforded a meaningful opportunity to participate
in the adjudication of the claim.

The October 2004 letter also provided appropriate information
to the veteran on the definition of new and material
evidence, the date of the prior denial of service connection
and basis for the prior denial of his claims, and the
evidence necessary to reopen the claims for service
connection for an unspecified right knee condition; a
calcaneal spur, right ankle; glaucoma, right eye; and a
herniated nucleus pulpous L5-S1.  The veteran has been
adequately informed of the specific information required by
Kent v. Nicholson, 20 Vet. App. 1 (2006).

The Board acknowledges that the appeal was transferred to the
Board in December 2005.  Hence, the veteran was not given the
specific notice required by Dingess v. Nicholson, 19 Vet.
App. 473 (2006) (as the degree of disability and effective
date of the disability are part of a claim for service
connection, VA has a duty to notify claimants of the evidence
needed to prove those parts of the claim).  In this case,
however, the failure to provide this notice is harmless
because the preponderance of the evidence is against the
appellant's claims for service connection and any questions
as to the disability rating or effective date to be assigned
are moot.

In addition, VA has fulfilled its duty to assist the claimant
in obtaining identified and available evidence needed to
substantiate a claim.  The veteran's service medical records
and VA treatment records have been associated with the claims
folder.  The Board acknowledges that the veteran was not
scheduled for a VA examination.  In this instance, however,
there is sufficient competent medical evidence to decide the
claim.  See 38 C.F.R. � 3.159(c)(4).

In sum, there is no evidence of any VA error in notifying or
assisting the appellant that reasonably affects the fairness
of this adjudication.

ORDER

Service connection for diabetes mellitus, type II, associated
with herbicide exposure is denied.

Service connection for an unspecified left ankle condition as
a result of exposure to herbicides is denied.

Service connection for hypertension is denied.

Service connection for glaucoma of the left eye is denied.

Service connection for an unspecified left knee condition is
denied.

Service connection for peripheral neuropathy, bilateral upper
extremities, is denied.

Service connection for peripheral neuropathy, bilateral lower
extremities, is denied.

Service connection for asthma (claimed as shortness of
breath) as a result of asbestos exposure is denied.

Service connection for bilateral plantar fasciitis as a
result of exposure to herbicides is denied.

Service connection for fatigue syndrome as a result of
asbestos exposure is denied.

Service connection for arthritis AC joint, right shoulder, is
denied.

Service connection for an unspecified neck condition is
denied.

New and material evidence not having been submitted,
reopening of the claim for service connection for a calcaneal
spur, right ankle, is denied.

New and material evidence not having been submitted,
reopening of the claim for service connection for glaucoma,
right eye, is denied.

New and material evidence not having been submitted,
reopening of the claim for service connection for an
unspecified right knee condition is denied.

New and material evidence not having been submitted,
reopening of the claim for service connection for a herniated
nucleus pulpous L5-S1 is denied.

____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs