judge_norm: A BRYANT

benefit: overpayment

text:
Citation Nr: 0103000
Decision Date: 01/31/01    Archive Date: 02/02/01

DOCKET NO.  99-21 736	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona

THE ISSUE

Entitlement to waiver of recovery of an overpayment of
disability compensation benefits, in the calculated amount of
$4,403.80.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel

INTRODUCTION

The veteran served on active duty from February 1968 to
December 1971, from August 1977 to June 1978, and from
September 1983 to July 1995.  He reentered active service on
June 19, 1998.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1999 decision by the
Committee on Waivers and Compromises at the Department of
Veterans Affairs (VA), Regional Office (RO), in Phoenix,
Arizona.

Review of the evidentiary record indicates that a portion of
the assessed overpayment in question has been recouped.
Nevertheless, in accordance with Franklin v. Brown, 5 Vet.
App. 190 (1993), the Board will consider the entire
overpayment in the currently calculated amount of $4,403.80.

The Board further notes the veteran did not challenge the
amount of the assessed overpayment created; therefore, this
decision is limited to the issue of entitlement to waiver as
listed on the title page.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.

2.  In April 1997 the RO notified the veteran that his VA
disability compensation payments had been revised and
provided a copy of VA Form 21-8764 which included notice that
reentrance into active service may affect the right to
payments.

3.  On June 19, 1998, the veteran reentered active service,
subsequently, his VA disability compensation award was
retroactively discontinued creating an overpayment in the
amount of $4,403.80.

4.  The veteran did not commit fraud, misrepresentation, or
bad faith in the creation of the overpayment.

5.  The balance of fault rests upon the veteran for accepting
payments to which he knew or reasonably should have known he
was not entitled.

6.  Failure to make restitution would result in the veteran's
unjust enrichment at the expense of the Government.

7.  Recovery of the assessed overpayment would not deprive
the veteran or his family of basic necessities.

8.  Denial of waiver would not defeat the purpose of the
award of VA benefits.

9.  There is no indication that the veteran relinquished a
valuable right or incurred a legal obligation in reliance
upon the benefits received.

CONCLUSION OF LAW

Recovery of the overpayment of disability compensation
benefits in the amount of $4,403.80 would not be contrary to
the principles of equity and good conscience.  38 U.S.C.A.
� 5302 (West 1991 & Supp. 2000); 38 C.F.R. �� 1.963, 1.965
(2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Background

In April 1997 the RO notified the veteran that his VA
disability compensation payments had been amended and
provided a copy of VA Form 21-8764 which included notice that
reentrance into active service may affect the right to
payments.

In December 1998 the RO received notice from the Defense
Finance and Accounting Service (DFAS) that the veteran had
reentered active service on June 19, 1998.

In March 1999 the RO notified the veteran that information
had been received indicating his re-enlistment and of its
proposal to terminate his VA benefit payments effective June
19, 1998.

In April 1999 the veteran requested his VA payments be
stopped immediately and submitted a money order in the amount
of $424 as repayment for the April 1999 deposit.  He also
reported that he had contacted the DFAS and informed them of
his re-enlistment and that they had indicated they would take
care of having his retirement pay stopped.  He stated he had
assumed they would see that all appropriate payments would be
stopped.  He reported, in essence, that he had not been aware
of the exact sources of the funds being deposited into his
account and that the March 1999 RO correspondence was the
first indication he had of any problem.

The veteran stated that he did not have funds available to
repay the overpayment, that he lived on a very strict budget,
and that he provided the financial support for his family and
elderly mother.  He also noted that his re-enlistment had
resulted in a reduction in income but that he had agreed to
return because of a sense of loyalty.

VA Debt Management Center correspondence dated in June 1999
notified the veteran that an overpayment in the amount of
$4,403.80 had been created.

In July 1999 the veteran submitted a financial status report
indicating that he was presently married and had dependents
aged 18, 20, and 85.  He reported he was employed as a
military recruiter and that his spouse was employed as a
travel coordinator.  He listed total monthly net income of
$6, 942, total monthly expenses of $6,356, and monthly
discretionary income of $586.  His report of average monthly
expenses included $1,050 for rent or mortgage payments, $800
for food, $525 for utilities and heat, $1,900 for other
living expenses described as miscellaneous expenses including
assistance for a dependent mother and school aged children,
and $2,081 for installment and other debt payments.

The veteran noted an unpaid balance on installment debts
including $8,000 to the Internal Revenue Service (IRS),
$19,000 for a 1998 automobile loan, $1,200 for a 1993
automobile loan, and $1,800 for family medical expenses.  His
monthly installment and other debt payments included $260 to
the IRS, $600 for life insurance, $300 for automobile
insurance, $500 for a 1998 automobile loan, $321 for a 1993
automobile loan, and $100 for family medical expenses.  He
reported assets of $58,250, including $250 for cash in bank,
$2,000 for a 1993 automobile, $16,000 for a 1998 automobile,
and $40,000 for the mortgage value of residential real
estate.

In September 1999 the veteran submitted a financial status
report indicating no change in income or expenses except for
an increased amount of $2,300 for other living expenses
described as long-term care for a dependent mother,
assistance for school aged children, and payment to the IRS.
The report noted monthly discretionary income of $186.

At his personal hearing in September 1999 the veteran
testified that he returned to active service on June 19,
1998.  He reported that he provided financial assistance for
his mother who had been placed in a private care facility.
He stated that the financial status reports he submitted
probably underestimated his monthly expenses and that he
rarely had any disposable income at the end of the month.  He
reiterated his claim that he had notified the DFAS of his
return to active service and that he had not been aware he
was receiving erroneous payments.

Analysis

Initially, the Board notes VA has a duty to assist the
veteran in the development of his claim.  See Veterans Claims
Assistance Act of 2000, Pub. L. No. 196-475, 114 Stat. 2096
(2000) (to be codified at 38 U.S.C.A. � 5103A).  The Board is
satisfied that all relevant facts have been properly
developed and that no further assistance is required in order
to satisfy the duty to assist.

The Committee on Waivers and Compromises has determined that
the indebtedness did not result from fraud,
misrepresentation, or bad faith, any of which would
constitute a legal bar to granting the requested waiver.  See
38 U.S.C.A. � 5302 (West 1991 & Supp. 2000).  The Board
concurs with that determination, however, before recovery of
the indebtedness can be waived it must also be shown that it
would be against the principles of equity and good conscience
to require the veteran to repay the debt to the government.
38 C.F.R. �� 1.963, 1.965.

VA law provides that recovery of overpayments of any benefits
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.
38 U.S.C.A. � 5302 (West 1991 & Supp. 2000); 38 C.F.R.
� 1.963(a) (2000).  The standard "Equity and Good
Conscience" will be applied when the facts and circumstances
in a particular case indicate a need for reasonableness and
moderation in the exercise of the government's rights.  The
decision reached should not be unduly favorable or adverse to
either side.

The phrase "Equity and Good Conscience" means arriving at a
fair decision between the obligor and the government.  In
making this determination consideration will be given to the
following elements, which are not all-inclusive:

(1)  Fault of the debtor.  Where actions of the debtor
contribute to the creation of the debt.

(2)  Balancing of faults.  Weighing fault of the debtor
against VA fault.

(3)  Undue hardship.  Whether collection would deprive debtor
or family of basic necessities.

(4)  Defeat the purpose.  Whether withholding of benefits or
recovery would nullify the objective for which benefits were
intended.

(5)  Unjust enrichment.  Failure to make restitution would
result in unfair gain to the debtor.

(6)  Changing position to one's detriment.  Reliance on VA
benefits results in relinquishment of a valuable right or
incurrence of a legal obligation.

See 38 U.S.C.A. � 5302(West 1991); 38 C.F.R. � 1.965(a)
(2000).

In addition, persons dealing with the Government are charged
with knowledge of federal statutes and lawfully promulgated
agency regulations "regardless of actual knowledge of what
is in the [r]egulations or of the hardship resulting from
innocent ignorance."  See Morris v Derwinski, 1 Vet. App.
260, 265 (1991) (citing Fed. Crop Ins. Corp. v. Merrill, 33
U.S. 380, 384-385, 68 S. Ct. 1, 3, 92 L. Ed. 10 (1947)).

Based on the evidence of record, the Board finds recovery of
the overpayment would not be against the principles of equity
and good conscience.  The record in this case shows the
veteran reentered active service on June 19, 1998, and that
he continued to accept VA payments after that event.
Although the veteran's statements that he notified the DFAS
of his re-enlistment are credible, the fact that he was
informed of the need to notify VA upon reentrance into active
service and failed to do so demonstrates the fault in the
creation of the overpayment rests solely with the veteran.

The Board further finds the veteran's reported financial
status does not indicate that undue financial hardship would
result from the recovery of the assessed overpayment.  The
record shows the veteran and his spouse have substantial
monthly net income and income in excess of monthly expenses.
Although the veteran testified that the financial status
reports he submitted underreport his monthly expenses, he
provided no additional evidence probative of that fact.  The
Board also notes that the veteran's September 1999 financial
status report apparently includes a double reporting of the
monthly payment to the IRS under the category of other living
expenses and as a monthly installment debt payment.  Based
upon the evidence of record, the Board finds a monthly
repayment plan would not deprive the veteran or his family of
basic necessities.

The Board also finds that collection of the debt would not
defeat the purpose of paying benefits by nullifying the
objective for which the benefits were intended.
Pension, compensation, or retirement pay on account of his or
her service will not be paid to any person for any period for
which he or she receives active service pay.  See 38 U.S.C.A.
� 5304(c) (West 1991); 38 C.F.R. � 3.700(a)(1) (2000).
Therefore, as the veteran had returned to active service, the
Board must conclude that the objective of VA benefit payments
is not nullified.  In addition, waiver of recovery of the
assessed overpayment would constitute unjust enrichment by
creating an unfair gain to the veteran because he would be
allowed to retain funds to which he was not legally entitled.
Further, there is no indication that reliance on the overpaid
benefits resulted in the veteran's relinquishment of a
valuable right or the incurrence of a legal obligation.  Upon
review of the various elements of equity and good conscience,
the Board is not persuaded that the Government should waive
its right to the repayment of the assessed overpayment.

The Board has carefully reviewed the entire record in this
case and finds that the evidence is not so evenly balanced
that there is doubt as to any material issue.  The
preponderance of the evidence is against the claim.
38 U.S.C.A. � 5107 (West 1991 & Supp. 2000).

ORDER

The claim for entitlement to waiver of recovery of service-
connected disability compensation overpayment in the amount
of $4,403.80 is denied.

	A. BRYANT
	Member, Board of Veterans' Appeals


series: legacy

judge_norm: N R ROBIN

judge_role: Member, Board of Veterans' Appeals

disposition: granted

condition: knee

disposition: denied

text:
Citation Nr: 0104000
Decision Date: 02/08/01    Archive Date: 02/15/01

DOCKET NO.  94-02 726	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for post-traumatic
stress disorder (PTSD).

2.  Entitlement to a rating in excess of 20 percent for a
right knee disorder, based on arthritis without consideration
of instability, prior to April 19, 2000.

3.  Entitlement to an increased rating for a right knee
disorder, currently rated 30 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. Schlosser, Counsel

INTRODUCTION

The veteran had active military service from January 1969 to
November 1971.

This matter originally came before the Board of Veterans'
Appeals (Board) on appeal from a February 1993 rating
decision in which the RO denied secondary service connection
for a left knee disorder and PTSD, and denied an increased
rating for a right knee disorder, rated 20 percent disabling.
The veteran appealed and was afforded a hearing at the RO in
June 1993.  The veteran's claims were denied by the hearing
officer as reflected in a September 1993 supplemental
statement of the case (SSOC).  Thereafter, the veteran was
afforded a hearing before the undersigned member of the Board
at the RO in February 1994.  In a June 1996 decision, the
Board granted secondary service connection for a left knee
disorder; the issues involving PTSD and a right knee disorder
were remanded for evidentiary development.  The case has now
been returned to the Board for further appellate
consideration.

In a July 1996 rating decision, the RO assigned a 10 percent
disability evaluation for the veteran's left knee disorder.
Also in July 1996, the veteran submitted a claim for a total
rating for compensation purposes based on individual
unemployability (TDIU).  A June 2000 rating decision denied
entitlement to a TDIU.  For reasons that will be explained
more fully below, these issues must be remanded to the RO.

Also in the June 2000 rating decision, the RO granted an
increased 30 percent schedular rating for the veteran's right
knee disability, effective April 19, 2000.  Inasmuch as the
veteran's claim for an increased rating for the right knee
was

received on September 23, 1992, the Board will consider the
issue of entitlement to a rating in excess of 20 percent for
the period from September 23, 1992, to April 19, 2000, as set
forth on the title page of this decision, in addition to the
issue of entitlement to a schedular rating in excess of 30
percent for the right knee since April 19, 2000.

FINDINGS OF FACT

1.  During the period from September 23, 1992, to April 19,
2000, the veteran's right knee disorder was manifested by
slight subluxation and instability.

2.  During the period from September 23, 1992, to April 19,
2000, the veteran's right knee disorder was shown to have 114
degrees of flexion and 0 degrees of extension with bilateral
crepitus and moderate degenerative joint disease.

3.  The veteran's right knee disorder is currently manifested
by 90 degrees of flexion and 22 degrees of extension with
pronounced degenerative joint disease shown on x-ray,
calcification within the right knee joint, degenerative
irregularity of the joint margin with hypertrophic spurring,
and severe pain at least two times per week; there is no
evidence of subluxation or instability in the right knee on
objective examination.

CONCLUSIONS OF LAW

1.  The criteria for a separate 10 percent rating, but no
higher, for a right knee disability based on subluxation and
instability for the period from September 23, 1992, to April
19, 2000 have been met.  38 U.S.C.A. � 1155 (West 1991);
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
� 4, 114 Stat. 2096,___(2000) (to be codified as amended at
38 U.S.C. � 5107); 38 C.F.R. �� 4.1, 4.2, 4.7, 4.40, 4.45,
4.59, 4.71, Plate II, 4.71a, Diagnostic Code 5257 (2000);
VAOGCPREC No. 23-97 (July 1, 1997).

2.  The criteria for a rating in excess of 20 percent for a
right knee disorder. Based on arthritis, during the period
from September 23, 1992, to April 19, 2000, have not been
met.  38 U.S.C.A. � 1155 (West 1991); Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, � 4, 114 Stat.
2096,___(2000) (to be codified as amended at 38 U.S.C.
� 5107); 38 C.F.R. �� 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71,
Plate II, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261,
5262 (2000).

3.  The criteria for a rating in excess of 30 percent for a
right knee disability have not been met.  38 U.S.C.A. � 1155
(West 1991); Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, � 4, 114 Stat. 2096,___(2000) (to be codified as
amended at 38 U.S.C. � 5107); 38 C.F.R. �� 4.1, 4.2, 4.7,
4.40, 4.45, 4.59, 4.71, Plate II, 4.71a, Diagnostic Codes
5003, 5010, 5261 (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual Background

The veteran submitted his claim for an increase rating for
his right knee disorder in September 1992.  There is
voluminous clinical evidence during the pertinent period from
September 1992 to April 2000.

VA treatment records dated in August 1992 noted the veteran's
bilateral osteoarthritis in both knees, of moderate degree,
the right knee worse than the left.  The veteran had a
history of surgery to both knees with the only future surgery
expected to be a total knee replacement.

On VA orthopedic examination in January 1993, the veteran
reported a history of a right knee injury in service during
basic training in 1969.  He fell down, twisting his right
knee; the drill sergeant straightened out his knee and
twisted it back into place.

The veteran was taken to the dispensary and given an Ace
bandage and crutches.  After basic training, the right knee
began to swell, become painful and give way.  He felt a
popping sound.  Later, while serving in Germany, the veteran
stepped off a truck and heard a popping sound in his right
knee.  He was unable to walk and felt considerable pain.  The
veteran was again provided with crutches and an Ace bandage.
X-rays taken in Germany revealed torn cartilage and the
veteran underwent surgery on his right knee.  In 1983, the
veteran had surgery on his left knee.

Clinical findings on examination showed marked swelling on
the right with the right knee approximately two times the
size of the left knee.  There was marked deformity of the
right knee with bone growth on the medial aspect of the right
knee.  There was no angulation, false motion, shortening or
intraarticular involvement, but there was a grinding and
popping sound on movement of the right knee.  Flexion and
extension of the right knee were reported to be "good."
The diagnostic impression was status post medial meniscectomy
of the right knee with traumatic arthritis and
chondromalacia.

VA outpatient treatment records include a clinical note in
April 1992 wherein the veteran was noted to have chronic
degenerative disease of the right knee with moderate swelling
and tenderness.  The veteran's knee was drained and he was
put on crutches and prescribed ice for therapy.  In October
1992, the veteran was converted from wooden crutches to
Canadian crutches with two point alternating gait.  In
January 1993, the veteran was noted to have severe
degenerative joint disease in both knees with mild
instability in the right knee.

At his June 1993 RO hearing, the veteran testified that he
was a carpenter, but had not been able to work since
approximately 1986 following surgery on his right knee.  He
described an in-service injury to his right knee during basic
training and ongoing treatment for right knee problems
throughout active duty.  The veteran indicated that he used a
supportive brace and crutches to assist with ambulation.

At his hearing, the veteran submitted a number of medical
records, including a letter from his VA orthopedic surgeon
stating that it was reasonable to assume the veteran's left
knee pain had been made worse because of the severe right
knee arthritis and favoring thereof.  Sam Hakki, M.D., stated
that the veteran was currently residing in the Bay Pines
Domiciliary.  He was originally seen by Dr. Hakki in June
1992 for complaints of swelling and pain in his right knee.
The veteran was noted to have a history of two arthroscopic
surgeries on his right knee due to severe chronic
degeneration.  Dr. Hakki further stated that the veteran's
right knee conditions restricted his physical performance
tremendously; he would be a candidate for a total knee
replacement, but was considered too young at the present time
to have that procedure.  Also received at the hearing was a
March 1993 statement from another VA physician which linked
the veteran's left knee problems with his right knee
disability.

Lay statements from the veteran's peers and former spouse
dated in early 1994 reflect that the veteran had been
observed having difficulty walking and working because of
interference from his bilateral knee problems, including pain
and swelling.

VA clinical records in January 1994 note mild instability and
bilateral knee pain due to severe degenerative joint disease.
A January 1994 note from the veteran's VA orthopedist to the
Penellas County Social Services indicated that the veteran
could do only sedentary work until he had a total knee
replacement due to severe degenerative joint disease in the
right knee.

At his travel Board hearing before the undersigned in
February 1994, the veteran testified that his right knee was
constantly swollen and painful.  He indicated that he wore a
knee brace on the right whenever he went anywhere, but denied
wearing it around his house.  He indicated that some of his
medication, Feldene, helped to alleviate swelling in his
right knee.  The veteran described shooting pains in his
right knee when he is too active.  His doctor has advised the
veteran that he will require bilateral total knee
replacements, but that those procedures will be put off

until the veteran is at least fifty-five years of age, eleven
years from the date of the hearing.  Until that time, the
veteran had been advised to stay off of his legs and to use
crutches and the knee braces whenever he needed to get
around.  After sitting for any period of time, the veteran
indicated that he had to get up and move the knee around a
bit.  He noted that he had been treated for both right and
left knee problems by Dr. Dee, a physician who had since died
and whose medical records were not available.

Medical records received from the Social Security
Administration were essentially duplicative of VA treatment
records already in the claims folder which confirmed the
diagnosis of severe degenerative joint disease of the right
knee.

On VA examination in August 1996, the veteran complained of
pain and swelling in both knees.  On examination, there was
evidence of mild swelling of the right knee, mostly
suprapatellar.  Both knees were moderately deformed due to
degenerative arthritis.  There was evidence of bilateral
crepitance, but no significant subluxation, lateral
instability or loose motion in either knee.  Range of motion
was reported as follows:  flexion possible to 114 degrees and
extension to 0 degrees in the right knee; flexion to 102
degrees and extension to 8 degrees in the left knee.  X-rays
of both knees showed moderate degenerative joint disease with
no fracture.  The impression was degenerative joint disease
of both knees.

On VA examination April 19, 2000, the veteran reported a
history of right knee injury in service in 1969.  He related
having two arthroscopic surgeries on his right knee and two
surgeries on his left knee.  The veteran complained of
constant pain in both knees.  He reported intermittent
swelling of both knees and occasional give way.  Up to two
times per week, the veteran described flare-ups where his
pain was 9-10 on a scale of 1-10, with the increased pain
resulting from increased activity and prolonged weight
bearing.  The veteran stated that he had been unable to work
since 1992.  On examination, both knees showed slight
deformity with no significant swelling, loose motion or
lateral instability.  The right knee was noted to have a
Baker's cyst in the right popliteal space.  Range of motion
was reported as

follows:  flexion possible to 90 degrees and extension to 22
degrees on the right; flexion possible to 120 degrees and
extension to 110 degrees on the left.  The examiner noted
that the veteran's range of motion in both knees was within
consideration of pain, fatigue, weakness, incoordination and
altered by repetition.  X-rays of the veteran's knees were
positive for bilateral degenerative joint disease with
spurring and calcifications more pronounced in the right
knee.  The diagnostic impression was degenerative joint
disease of both knees.

II.  Analysis

Initially, the Board notes that during the pendency of this
appeal, there has been a significant change in the law.  On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000).  Among other things, this law eliminates the
concept of a well-grounded claim, redefines the obligations
of VA with respect to the duty to assist, and supercedes the
decision of the United States Court of Appeals for Veterans
Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999),
withdrawn sub nom.  Morton v. Gober, No. 96-1517 (U.S. Vet.
App. Nov. 6, 2000) (per curiam order), which had held that VA
cannot assist in the development of a claim that is not well
grounded.  This change in the law is applicable to all claims
filed on or after the date of enactment of the Veterans
Claims Assistance Act of 2000, or filed before the date of
enactment and not yet final as of that date.  Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, � 7, subpart
(a), 114 Stat. 2096, (2000); see also Karnas v. Derwinski, 1
Vet. App. 308 (1991).

With respect to the matter of increased ratings for the
service-connected right knee disability, the Board finds that
all available records have been assembled, and no further
action to develop the claim is necessary.

In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can
practicably be determined, the average impairment of earning
capacity.  In determining the current level of impairment,
the disability must be viewed in relation to its history.
38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating.  Otherwise, the lower rating will be assigned.
38 C.F.R. � 4.7.

The veteran's right knee disorder has been evaluated under
the provisions of 38 C.F.R. � 4.71a, Diagnostic Codes 5010
and 5257 (2000).  Arthritis, due to trauma, substantiated by
x-ray findings, is rated as degenerative arthritis.
38 C.F.R. � 4.71a, Diagnostic Code 5010 (2000).  Degenerative
arthritis will be rated on the basis of limitation of motion
under the appropriate diagnostic codes for the specific joint
or joints involved.  Limitation of motion must be objectively
confirmed by findings such as swelling, muscle spasm, or
satisfactory evidence of painful motion.  38 C.F.R. � 4.71a,
Diagnostic Code 5003 (2000).

Recurrent subluxation or lateral instability resulting in
slight knee impairment is rated 10 percent disabling.
Diagnostic Code 5257.  When recurrent subluxation or lateral
instability produces moderate knee impairment, a 20 percent
rating is
assigned.  Id.  Recurrent subluxation or lateral instability
resulting in severe knee impairment is 30 percent disabling.
Id.

When extension of the knee is limited to 15 degrees, a 20
percent rating is assigned.  38 C.F.R. � 4.71a, Diagnostic
Code 5261 (2000).  Where extension of the knee is limited to
the 20 degree position, a 30 percent rating is assigned.  Id.
When extension is limited to 30 degrees, a 40 percent rating
is assigned, and when extension is limited to 45 degrees, a
50 percent rating is warranted.  Id.  (Normal motion of the
knee is from 0 degrees of extension to 140 degrees of
flexion.  See 38 C.F.R. � 4.71, Plate II.)

As noted above, this case involves two separate periods of
time in which the veteran is claiming entitlement to an
increased rating for his right knee disorder:  a rating in
excess of 20 percent for the period from September 23, 1992,
to April 19, 2000, and a rating in excess of 30 percent
thereafter.  At the time that the veteran filed his claim for
an increased rating in September 1992, his right knee
disorder was characterized as status post medial meniscectomy
of the right knee with traumatic arthritis and
chondromalacia.

When the case was before the Board at the time of the 1996
Board remand, the evidence in the claims folder was
insufficient to consider the veteran's functional loss in the
right knee, pursuant to the provisions of 38 C.F.R. �� 4.40,
and 4.45, and the guidelines set forth in DeLuca v. Brown, 8
Vet.App. 202 (1995).  When rating musculoskeletal disability,
it should be remembered that "a part which becomes painful
on use must be regarded as seriously disabled."  38 C.F.R.
� 4.40 (2000).  In DeLuca, supra, the United States Court of
Appeals for Veterans Claims (Court) cited the case of Bierman
v. Brown, 6 Vet.App. 125, 129 (1994) in which 38 C.F.R.
� 4.10 was quoted for the proposition that a rating
examination must include a "full description of the effects
of disability upon the person's ordinary activity."  DeLuca,
at 206 (emphasis added).  In order to effectuate this
requirement, the Court explained that, when the pertinent
diagnostic criteria provide for a rating on the basis of loss
of range of motion, determinations regarding functional loss
are to be
"'portray[ed]' (� 4.40) in terms of the degree of additional
range-of-motion loss due to pain on use or during flare-
ups."  Id.

With respect to the veteran's claim of entitlement to a
rating in excess of 20 percent for the period from September
23, 1992, to April 19, 2000, appellate review of the evidence
in the claims folder shows that the veteran received
substantial treatment for his right knee disability during
that time frame.  VA outpatient treatment records in
September 1992 referenced that the veteran's only future
surgical option was a total knee replacement due to the
severity of the degenerative arthritis in his right knee.  On
VA examination in January 1993, the veteran was noted to have
marked swelling in the right knee with bone growth on the
medial aspect causing a deformity of the right knee.  There
was no false motion, shortening or intraarticular
involvement, but there was grinding and popping on movement.
Flexion and extension were described as "good."  The
diagnostic impression was status post medial meniscectomy of
the right knee with traumatic arthritis and chondromalacia.

VA outpatient treatment records from January 1993 reference
clinical findings of mild instability in the veteran's right
knee.  Records in January 1994 again reference mild
instability and indicate that the veteran had required
bracing of the right knee since at least June 1993.

Based on a complete review of the evidence of record, the
Board finds that the clinical findings support the assignment
of a separate compensable rating for the veteran's right knee
disorder based on instability and subluxation under
Diagnostic Code 5257 for the period from September 23, 1992,
to April 19, 2000.  In VAOGCPREC No. 23-97 (July 1, 1997),
the General Counsel held that a claimant who has both
arthritis and instability of the knee may be entitled to
separate ratings under Diagnostic Codes 5003 and 5257.  See
also VAOGCPREC No. 9-98 (August 1998).  Because of the
positive evidence in the claims period for the relevant time
period, the Board does not find it necessary to remand this
matter to the RO for consideration; the evidence supports the
grant of a separate 10 percent rating during the pertinent
time period.

The next issue for consideration is whether the veteran was
entitled to a rating in excess of 20 percent for his right
knee disorder from September 23, 1992, to April 19, 2000,
based solely on arthritis (and demonstrated limitation of
motion) and without consideration of instability (granted a
separate 10 percent rating in the preceding discussion).  At
his June 1993 hearing, the veteran testified that he was
unable to work as a carpenter because of his right knee
problems.  He was using a knee brace and crutches, using the
brace when he had to go out of the house.  The veteran
testified that his right knee swelled; he indicated that
nothing further could be done for his right knee except a
total knee replacement and his doctors were trying to put
that off until the veteran was a little older.  The range of
motion reported on the August 1996 VA examination of 114
degrees flexion and 0 degrees of extension with a finding of
moderate degenerative arthritis does not justify a rating in
excess of 20 percent based on the veteran's arthritis alone.

Finally, as to the veteran's claim of entitlement to an
increased schedular rating in excess of 30 percent currently,
the current clinical findings are as follows.  On VA
orthopedic examination April 19, 2000, the veteran complained
of constant pain in both knees.  He also reported
intermittent swelling and occasional give way.  He reported
that he was not currently receiving any specific treatment
for his knees.  The veteran indicated that he experienced
acute flare-ups about two times per week due to increased
activity with prolonged weight-bearing.  On examination,
there was slight deformity of the right knee.  There was no
significant swelling and no loose motion or lateral
instability.  Examination of the right knee suggested a
Baker's Cyst in the right popliteal space.  Range of motion
in the right knee revealed flexion possible to 90 degrees and
extension possible to 22 degrees.  The diagnostic impression
was degenerative joint disease.  In response to the questions
posed in the Board remand, the VA examiner indicated that the
veteran had functional loss due to pain at least two times
per week when his pain was severe.  With respect to the
veteran's ability to work, the examiner commented that it was
more likely than not that the veteran was unable to perform
his trained occupation as a carpenter and his ability to
perform a sedentary job was limited by his lack of education.

In summary, the current clinical findings demonstrate that
the veteran has degenerative joint disease in the right knee
with decreased motion due to pain.  X-rays of the right knee
confirm the involvement of the joint.  The veteran's limited
extension in the right knee is consistent with a 30 percent
rating under Diagnostic Code 5261.  As noted in the report of
VA examination, the veteran has indicated additional
functional loss at least two times per week when his pain is
more severe.  However, the VA examiner reported a decrease in
the range of motion in the right knee due to pain, as noted
above.  Beyond the increased limitation in extension on
account of pain, the examiner did not comment on any
additional functional losses such as weakness or
fatigability.  The examiner clearly knew of the need to
provide such an opinion and presumably complied with the
Board's earlier instruction to the extent feasible.
Consequently, it appears that the best indication of the
degree of functional impairment experienced by the veteran is
the examiner's comment as to additional limitation of motion.

In short, the functional loss experienced by the veteran is,
given the available evidence, best described by the most
recent examination report showing decreased extension due to
pain.  For the reasons noted above, the Board concludes that
the examiner's findings strongly suggest that, even with
consideration of additional functional losses due to pain,
etc., the veteran's disability equates to no more impairment
than that contemplated by the current 30 percent schedular
rating.  Diagnostic Codes 5003, 5260, 5261.  Currently, there
is no indication that lateral instability or recurrent
subluxation is present.  The Board notes, however, that this
determination pertains only to consideration of an increased
schedular rating for the veteran's right knee disability; the
issue of entitlement to an extraschedular rating under the
provisions of 38 C.F.R. � 3.321 (1) (b) will be addressed by
the RO on remand as set forth below.  The RO assigned the 30
percent increased schedular rating in response to the
clinical findings on the most recent examination in April
2000 with consideration of the veteran's pain and functional
loss.  Consequently, a schedular rating in excess of 30
percent for a right knee disorder since April 19, 2000, is
denied.

ORDER

1.  A separate compensable schedular rating for the right
knee is granted for the period from September 23, 1992, to
April 19, 2000, to the extent indicated, subject to laws and
regulations governing the payment of monetary awards.

2.  A rating in excess of 20 percent for a right knee
disorder based on arthritis with limitation of motion without
consideration of instability, prior to April 19, 2000, is
denied.

3.  A schedular rating in excess of 30 percent for a right
knee disorder, since April 19, 2000, is denied.

REMAND

As note above, the Veterans Claims Assistance Act of 2000
introduced several fundamental changes into VA's adjudication
process.  Specifically, the act eliminated the requirement
under 38 U.S.C.A. � 5107 (West 1991 & Supp. 1999), that a
person submitting a claim for benefits produce evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded in order to
receive assistance in the development of his/her claim;
rather, under the provisions of the new statute, 38 U.S.C.A.
� 5103A, the Secretary is required to make all reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for benefits, to include obtaining
records and providing a medical examination, except when no
reasonable possibility exists that such assistance would aid
in substantiating the claim.

At the time of the June 1996 Board remand, the Board
determined that the duty to assist had not been fulfilled
with respect to the veteran's claim of entitlement to service
connection for PTSD.  Evidence of record at that time
included the veteran's DD-214 which showed service in the
Republic of Vietnam with the U.S. Army.

The veteran had submitted statements and provided testimony
as to several stressful events in service which he maintained
led to his developing PTSD.  Some of his claimed stressors
are related to incidents of combat.  Despite the fact that
the veteran had been diagnosed with PTSD, the diagnosis of
record had been made based on the veteran's own
uncorroborated account of what he experienced in service.  As
such, there was no credible supporting evidence that the
claimed in-service stressor(s) had actually occurred during
service consistent with the provisions of 38 C.F.R. � 3.304
(f) (1995).

On remand, the RO was directed to obtain the veteran's
complete psychiatric treatment records and service personnel
records.  In addition, the RO was to ask the veteran for
additional, detailed information regarding his claimed
stressors to support the diagnosis of PTSD.  Thereafter, the
veteran's stressors were to be forwarded to the U.S. Army and
Joint Services Environmental Support Group (ESG) [now known
as The U.S. Armed Services Center for Research of Unit
Records (USASCRUR)] for verification of the reported
stressors.  Subsequent to the verification of the veteran's
reported stressors, the RO was directed to have the veteran
examined by a psychologist and psychiatrist to determine
whether the veteran had PTSD or some other psychiatric
pathology, and whether any psychiatric disability could be
attributed to service.

Unfortunately, the Board finds that the duty to assist has
still not been satisfied.  See generally 38 C.F.R. � 3.103
(2000).  Specifically, it does not appear that the RO made
sufficient attempts to verify the veteran's claimed stressors
nor did the RO make a determination as to whether the veteran
engaged in combat with the enemy.  See 38 U.S.C.A. � 1154 (b)
(West 1991).  Because the veteran has claimed stressor(s)
related to combat, a consideration of whether the veteran
engaged in combat with the enemy must be undertaken by the
RO.  See 38 U.S.C.A. � 1154 (b) (2000).

Furthermore, the apparent inconsistency between the veteran's
DD-214 which confirmed the veteran's service in Vietnam, and
the veteran's reported unit
designation which was never in Vietnam during the period in
question, was not adequately resolved.  The RO attempted to
obtain the veteran's service personnel records and received a
general response that they were not available; there has not
been a sufficient explanation for the absence of those
records of the veteran.  For these reasons, a remand is
warranted to comply with the duty to assist the veteran.  See
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000).  In addition, the RO did not afford
the veteran the requested psychiatric examination as set
forth in the June 1996 Board remand.  Where the remand orders
of the Board are not complied with, the Board errs in failing
to insure compliance.  Stegall v. West, 11 Vet. App. 268
(1998).

The Board also notes that during the course of the veteran's
appeal, and subsequent to the 1996 Board remand, the
regulation governing service connection for PTSD, 38 C.F.R.
� 3.304(f), was amended in accordance with the decision in
Cohen v. Brown, 10 Vet. App. 128 (1997).  The effective date
of the changes in the regulation was March 7, 1997.  The
Board notes that the Court has held that where the law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial appeal process has
been concluded, the version most favorable to the veteran
will apply unless Congress provided otherwise or permitted
the Secretary to provide otherwise and the Secretary did so.
Karnas v. Derwinski, 1 Vet. App. 308 (1990).

Under the new regulation, service connection for PTSD now
requires medical evidence establishing a diagnosis of the
condition in accordance with the provisions of 38 C.F.R.
� 4.125 (a); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred.  38 C.F.R. � 3.304 (f) (2000).  Inasmuch as the
veteran's claim requires remand for the reasons identified
above, the RO is advised that after the development requested
below is completed, the veteran's claim of entitlement to
service connection for PTSD must be considered under the
regulation in effect prior to March 7, 1997, as well as the
regulation in effect as of March 7, 1997, and apply that
which is more favorable.

In addition, as noted above, a July 1996 rating decision by
the RO assigned a 10 percent disability evaluation for the
veteran's left knee disorder.  Also in July 1996, the veteran
submitted a claim for a total rating for compensation
purposes based on individual unemployability (TDIU).  A June
2000 rating decision denied entitlement to a TDIU and
continued the 10 percent rating for the veteran's left knee
disorder.  In a September 2000 statement, the veteran's
representative expressed disagreement with the issues
addressed in the June 2000 rating decision.  The Board
construes this statement from the veteran's representative as
a notice of disagreement (NOD) to the June 2000 rating
decision.  As such, the RO is now required to send the
veteran a statement of the case (SOC) in accordance with 38
U.S.C.A. � 7105 and 38 C.F.R. �� 19.29, 19.30.  In this
regard, the Court has held that where an NOD has been
submitted, the veteran is entitled to an SOC.  The failure to
issue an SOC is a procedural defect requiring a remand.
Manlincon v. West 12 Vet. App. 238 (1999); Godfrey v. Brown,
7 Vet. App. 398 (1995).

Finally, it appears that the veteran has raised the issue of
entitlement to an extraschedular rating for his service-
connected right knee disorder under the provisions of
38 C.F.R. � 3.321 (b)(1).  As set forth in the June 1996
Board remand, the RO was directed to consider the veteran's
claim of entitlement to an extraschedular rating and to
address whether a referral to the Director of the
Compensation and Pension Service was warranted for
consideration of such a rating.  Nonetheless, the RO has not
considered the propriety of an extraschedular rating.  As
noted above, where the remand orders of the Board are not
complied with, the Board errs in failing to insure
compliance.  Stegall, supra.

To ensure that VA has met its duty to assist the veteran in
developing the pertinent facts, the issues of entitlement to
service connection for PTSD, entitlement to a TDIU,
entitlement to an increased rating for a left knee disorder,
and entitlement to an increased rating, on an extraschedular
basis, for a right knee disorder, are remanded to the RO for
the following actions:

1.  With respect to the issue of
entitlement to a TDIU and an increased
rating for a left knee disorder, the RO
should provide the appellant with an
SOC, in accordance with the provisions
of 38 U.S.C.A. � 7105 and 38 C.F.R.
�� 19.29, 19.30.  If and only if the
appellant perfects his appeal by
submitting a timely and adequate
substantive appeal on those issues
should the RO certify them to the Board
for appellate consideration.

2.  The RO should again request the
veteran to provide a list of all
current and past treatment provider(s)
for his psychiatric disorder(s), to
include private and VA facilities,
which are not already contained in the
claims folder.  Based on his response,
and with appropriate authorizations,
the RO should assist the veteran in
obtaining complete copies of all
treatment records pertaining to
psychiatric disabilities and associate
them with the claims folder.

3.  Insofar as the veteran may be able to
provide additional, detailed information
about his claimed stressor(s) to support
the diagnosis of PTSD, including specific
dates, times, locations, units of
assignment and the names and specifics of
each event, the RO should again contact
the veteran and afford the veteran and
his representative the opportunity to
submit that information for association
with the claims folder.  The RO should
also advise the veteran that he may
specifically submit lay/comrade
statements which support his report of
the alleged stressor(s).

4.  The RO should again contact the
service department and obtain a copy of
the veteran's service personnel records
and unit designation for association
with the claims folder.  The RO is
advised that these records must be
obtained; a single response that such
records are unavailable will not
demonstrate compliance with this REMAND
or the provisions of the Veterans
Claims Assistance Act.

5.  Thereafter, unless the RO
determines that evidence sufficient to
establish the occurrence of the claimed
in-service stressful experiences has
been received, the RO should prepare a
letter specifying each of the veteran's
claimed in-service stressful
experiences (including any additional
information received from the veteran
regarding his claimed stressors, and
accompanied by copies of the veteran's
DD-214, service personnel records, and
all associated documents), to USASCRUR
for corroboration of the veteran's
claimed stressor(s).  That facility
should be requested to provide any
information that might corroborate the
veteran's alleged in-service stressful
experiences.  The RO should conduct any
additional development or follow up
action suggested.  The response from
USASCRUR should be placed in the claims
folder.

6.  Thereafter, the RO should schedule
the veteran for an examination by a VA
psychiatrist to determine the presence or
absence of PTSD and, if present, whether
it is related to one or more verified
stressors in service.  The examiner must
be instructed that only an event which
has been verified may be considered for
the
purpose of determining whether exposure
to such stressor in service has resulted
in PTSD.  The examination report must
indicate that a review of the claims
folder was accomplished.  If a diagnosis
of PTSD is deemed appropriate, the
examiner should comment upon the link
between the current symptomatology and
the veteran's verified stressor(s).  The
report of examination must include the
complete rationale for all opinions
expressed.

7.  The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed.  In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. �� 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.

8.  When the RO is satisfied that the
record is complete and the psychiatric
examination is adequate, the RO should
review all of the evidence of record and
re-adjudicate the issue of entitlement to
service connection for PTSD under both
the old and new versions of 38 C.F.R.
� 3.304(f).  The RO must render a
specific finding as to whether the
veteran engaged in combat with the enemy.
The RO must provide adequate reasons and
bases for its determinations, addressing
all matters and concerns noted in this
remand.

9.  If the determinations remain adverse
to the veteran, he and his representative
should be furnished with an SSOC that
contains a summary of the relevant
evidence and a citation and discussion of
the applicable laws and regulations, to
include the new version of 38 C.F.R.
� 3.304(f).  They should also be afforded
the opportunity to respond to that SSOC
before the claim is returned to the
Board.

10.  With respect to consideration of the
veteran's rating for a right knee
disorder on an extraschedular basis, the
RO should specifically adjudicate whether
referral of the case to the Under
Secretary for Benefits or the Director of
the Compensation and Pension Service is
warranted for consideration of an
extraschedular rating under the
provisions of 38 C.F.R. � 3.321 (b) (1),
based on a marked interference with
employment.  The veteran and his
representative should be provided with a
copy of the decision on this issued and
all appellate rights which attach
thereto.

Thereafter, subject to current appellate procedures, the
case should be returned to the Board for further appellate
consideration.  The veteran need take no action until he
is further informed, but he may furnish additional
evidence and argument while the case is in remand status.
No inference should be drawn regarding the final
disposition of the claim as a result of this action.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

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


judge_norm: MARK W GREENSTREET

disposition: remanded

text:
Citation Nr: 0105000
Decision Date: 02/16/01    Archive Date: 02/20/01

DOCKET NO.  98-21 175	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi

THE ISSUE

Entitlement to an increased rating for residuals of a low
back injury, with degenerative disc disease L5-S1, currently
evaluated as 40 percent disabling.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

D. L. Wight, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1993 to January
1997.

This case comes before the Board of Veterans' Appeals (Board)
by means of a September 1998 rating decision rendered by the
Jackson, Mississippi, Regional Office (RO) of the Department
of Veterans Affairs (VA).

REMAND

In June 2000, the Board remanded the case to the RO for
further development.  After a review of the evidence, the
Board finds that additional development of the evidentiary
record is required.  See Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, � 3(a), 114 Stat. 2096, ____
(2000) (to be codified at 38 U.S.C. � 5103A).  Under this
law, VA has a duty to make reasonable efforts to assist a
veteran in obtaining evidence necessary to substantiate the
veteran's claim, including a medical examination.  See
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
� 3(a), 114 Stat. 2096, ____ (2000) (to be codified at 38
U.S.C. � 5103A(a)(d)).

In the present case, the Board is of the opinion that a new
VA examination should be scheduled.  The Board notes that the
veteran was afforded VA neurological and spine examinations
in April 1999.  However, subsequent to these examinations,
the veteran has undergone two spinal epidural blocks in an
effort to reduce his pain with the most recent procedure
being performed in January 2000.  A September 2000 VA
outpatient treatment record indicates that the veteran
reported that the duration of relief was approximately 3
weeks for each.  He reported that his job was making his pain
worse and that he quit his job to attend school.  Despite
this change in his life, he did not notice any difference in
his back disability.  The Board notes that, while the
treatment record shows fair flexion and extension, range of
motion findings are not recorded.  The veteran was to
continue muscle relaxant and physical therapy.  The "duty to
assist" requires a "thorough and contemporaneous medical
examination" that is sufficient to ascertain the current
level of disability, and accounts for its history.  Floyd v.
Brown, 9 Vet. App. 88, 93 (1995).  This medical examination
must consider the records of prior medical examinations and
treatment in order to assure a fully informed decision.
Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).  In light of
the veteran's recent spinal blocks, re-examination that takes
into account the veteran's history is prudent.

Further, the RO should make arrangements to obtain any
recent, relevant treatment records of the veteran and
associate them with the claims file.

Accordingly, this case is REMANDED for the following:

1.  The RO should obtain the names and
addresses of all medical care providers,
both VA and private, who treated the
veteran for his low back disorder since
September 2000.  After securing the
necessary releases, the RO should obtain
these records. The RO should document its
efforts to obtain the requested
information.  If any requested evidence
is not available, the RO should notify
the veteran as mandated by the Veterans
Claims Assistance Act of 2000.  See also
VBA Fast Letter No. 00-87 (November 17,
2000).  If any request for private
treatment records is unsuccessful, the RO
should notify the veteran so he may
obtain and submit the records himself.

2.  Thereafter, the RO should schedule
the veteran for appropriate VA
examination of the lumbar spine.  The RO
should advise the veteran of the
provisions set forth at 38 C.F.R. �
3.655(b) regarding failure to report for
scheduled VA examinations.

The RO should provide the examiner(s)
with a copy of this remand together with
the veteran's entire claims folder, and
the examiner(s) is asked to indicate that
he or she has reviewed the claims folder.
All necessary tests, including x-rays if
indicated, should be conducted.

The examiner(s) should:

a)  Review the results of any
testing prior to completion of the
report(s).

b)  Note detailed range of motion
measurements for the lumbar spine
and state what is considered normal
range of motion.

c)  Indicate whether there is any
pain, weakened movement, excess
fatigability or incoordination on
movement.  If so, the examiner(s)
should indicate whether there is
likely to be additional range of
motion loss due to any of the
following should be addressed: (1)
pain on use, including during flare-
ups; (2) weakened movement; (3)
excess fatigability; or (4)
incoordination.  The examiner should
describe whether pain significantly
limits functional ability during
flare-ups or when the lumbar spine,
left shoulder, or left foot is used
repeatedly.  All limitation of
function must be identified.   If
there is no pain, no limitation of
motion and/or no limitation of
function, such facts must be noted
in the report.  38 C.F.R. �� 4.40,
4.45 (2000).

d)  State whether or not there is
ankylosis of the spine.

e)  State, if possible, the
frequency of recurring attacks of
intervertebral disc syndrome, if the
veteran suffers such attacks, and
the extent to which relief is
experienced between such attacks.

f)  Indicate whether persistent
symptoms compatible with sciatic
neuropathy with characteristic pain
and demonstrable muscle spasm,
absent ankle jerk, or other
neurological findings appropriate to
the site of the diseased disc.

Any indications that the veteran's
complaints of pain or other
symptomatology are not in accord with
physical findings on examination should
be directly addressed and discussed in
the examination report(s).

The examiner(s) must provide a
comprehensive report(s) including
complete rationales for all conclusions
reached.  If further testing or
examination by other specialists is
determined to be warranted in order to
evaluate the residuals of the conditions
in issue, such testing or examination is
to be accomplished.

3.  Thereafter, the RO should review the
claims folder and ensure that all of the
foregoing development actions have been
conducted and completed in full.  If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report(s).  If the requested
examination(s) does not include fully
detailed descriptions of pathology and all
test reports, special studies or adequate
responses to the specific opinions
requested, the report(s) must be returned
for corrective action.  38 C.F.R. � 4.2
(2000);  see also Stegall v. West, 11 Vet.
App. 268 (1998).

4.  The RO should review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed.  In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. �� 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.

5.  Upon completion of the above, the RO
should readjudicate the veteran's claim,
with application of all appropriate laws
and regulations, and consideration of any
additional information obtained as a
result of this remand.

6.  If the decision with respect to the
claims remains adverse to the veteran, he
and his representative should be furnished
a supplemental statement of the case and
afforded a reasonable period of time
within which to respond thereto.

Thereafter, the claim is to be returned to the Board,
following applicable appellate procedure.  The veteran has
the right to submit additional evidence and argument on the
matter or matters the Board has remanded to the regional
office.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The
veteran is advised that if there is additional evidence that
can be obtained or generated, he should submit that evidence
to the RO.

The veteran is hereby informed that failure to report for a
scheduled VA examination, without demonstrated good cause for
such action, could result in adverse action with regard to
her claims.  See 38 C.F.R. � 3.655(a) (When a claimant fails
to report for an examination scheduled in conjunction with an
original compensation claim, the claim shall be rated based
on the evidence of record.  When the examination was
scheduled in conjunction with any other original claim, a
reopened claim for a benefit which was previously disallowed,
or a claim for increase, the claim shall be denied).

The purposes of this REMAND are to obtain additional
information and comply with due process considerations.  No
inference should be drawn regarding the final disposition of
these claims as a result of this action.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West Supp. 2000) (Historical and
Statutory Notes).  In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.

	MARK W. GREENSTREET
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims.  This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal.  38 C.F.R. � 20.1100(b) (2000).


judge_norm: BARBARA B COPELAND

condition: back

text:
Citation Nr: 0107000
Decision Date: 03/08/01    Archive Date: 03/16/01

DOCKET NO.  96-17 929	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts

THE ISSUE

Entitlement to service connection for thoracic neuralgia or
chest pain, including due to degenerative disc disease of the
thoracic spine.

REPRESENTATION

Appellant represented by:	Sherrie Krasner, Attorney at
Law

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Michael P. Vander Meer, Counsel

INTRODUCTION

The veteran served on active duty from October 1986 to
February 1987.

This case is before the Board of Veterans' Appeals (Board) on
appeal from an October 1994 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Boston,
Massachusetts.  A hearing was held before a hearing officer
at the RO in December 1996, and the hearing officer's
decision was entered in May 1997.  In April 1998, a hearing
was held at the RO before the undersigned Member of the
Board.

The appeal was last before the Board in September 1998, at
which time it was remanded for further development.
Following completion of the requested development, the RO, in
a Supplemental Statement of the Case mailed to the veteran in
May 2000, continued to deny the benefit sought on appeal.
Thereafter, the appeal was returned to the Board.

FINDING OF FACT

The veteran's chest pain per se does not comprise a condition
amenable to service connection; neither is his chest pain
shown to be a manifestation of any disability of chronic
derivation shown in service.

CONCLUSION OF LAW

A disability manifested by chest pain was not incurred in or
aggravated by service.
38 U.S.C.A. � 1131 (West 1991); Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000);
Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board finds that all relevant facts have been properly
developed, and no further assistance to the veteran is
required to comply with the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000).  Copies of
treatment records have been obtained and the veteran has been
examined by VA for the disability at issue.

The veteran asserts, as his primary contention, that while in
service on January 30, 1987, he slipped on some ice and fell
to the ground, "landing on both arms with clenched fists."
He indicates that it was "highly likely" that he fractured at
least one rib in the fall, which "never fully healed" and
resulted in a "pinched" nerve, which condition in turn
brought about his presently assessed thoracic neuralgia or
chest pain.  In this regard, he states that he alluded to
experiencing chest pain in the aftermath of the fall, in the
course of a service Medical Board examination.  In the
alternative, he avers that his currently assessed thoracic
neuralgia or chest pain is caused by degenerative disc
disease involving his thoracic spine.

Service connection may be granted for disability incurred in
or aggravated by service.  38 U.S.C.A. � 1131.

Service medical records reflect that, on January 30, 1987,
the veteran presented after having slipped "on ice" and
landing apparently on each upper extremity, though especially
his right hand/wrist.  He complained of pain involving his
right wrist and left hand.  An X-ray of the veteran's right
wrist and hand was ordered, and he was given "modified duty"
for the next several days.  The report pertaining to his
Medical Board examination in October 1987 reflects that,
subsequent to the fall in January 1987, the veteran's right
wrist remained problematic.  In conjunction with the
examination, the veteran alluded to experiencing
"occasional[] pleuritic left-side chest pain without
radiation."  There was no pertinent diagnosis.

Subsequent to service, the veteran is shown to have
complained of experiencing chest pain, of apparently varying
intensity, when seen for VA outpatient treatment on a number
of occasions between 1993 and 1995, inclusive.  When he was
seen in April 1994, the veteran was noted to experience
possible "neuropathic pain" in the aftermath of having fallen
"from [his] bed" five months earlier.

When he was pertinently examined by VA in March 1996, the
veteran related that, incident to his above-cited fall on the
ice in service, he fell "forward and land[ed] on his chest
with both arms spread wide."  He added that, two months after
such mishap, he "developed a severe localized chest
pain....which caused him to lose awareness for a few seconds".
Since then, he indicated that he had experienced "fairly
frequent episodes of a shock-like pain in the anterior chest"
which is at times spontaneous and on occasion when his chest
is palpated.  On pertinent examination, the veteran was noted
to have "some hypalgesia over the anterior chest wall in the
area to the left of the sternum."  The diagnosis was anterior
chest pain, "thoracic [neuralgia]".  The VA examiner
commented that it was "very difficult to delineate the cause
of [the veteran's] anterior chest pain, but there [was]
certainly an element of psychological overlay; but the
underlying disease entity is difficult to delineate."

Also of record is a statement from a former service comrade
of the veteran, which was received at the RO in March 1998,
wherein such comrade indicates that, during a period in which
he "roomed" with the veteran during service at a motel, the
latter, on apparently several occasions, complained of
experiencing "chest pains".

In considering the veteran's claim for service connection for
thoracic neuralgia or chest pain, including due to
degenerative disc disease of the thoracic spine, the Board is
of the opinion, owing to the reasoning advanced hereinbelow,
that such benefit is not in order.  In reaching such
conclusion, the Board would initially point out that, in
contrast to the veteran's assertion on the March 1996 VA
examination that, incident to his fall on the ice in service,
he fell "forward and land[ed] on his chest with both arms
spread wide", there is no indication, based on the service
clinical report pertaining to the veteran's initial clinical
presentation shortly after his 30 January 1987 ice mishap,
that he landed on his chest.  In any event, both in
conjunction with his inservice Medical Board examination as
well as in testimony at his April 1998 hearing, the veteran
related that he landed on clenched "fists".  Of more
pertinent import, given the veteran's above-quoted contention
in which he posits that it was "highly likely" that he
fractured at least one rib in the fall, which "never fully
healed" and resulted in a "pinched" nerve, which condition in
turn brought about his presently assessed thoracic neuralgia
or chest pain, the Board would point out, saliently, that
there is no evidence documenting that the veteran fractured
any rib in service.  Even ignoring the foregoing, the Board
is obliged to point out that, while assessed neuralgia which
is within the distribution of a specifically identified nerve
can comprise a pathology/disability, see 38 C.F.R.
� 4.124 (2000), the veteran was assessed on the March 1996 VA
examination as having merely anterior chest pain, further
clarified as "thoracic [neuralgia]".  The latter comprises
nomenclature denoting mere chest pain (see, e.g., Tedeschi v.
Brown, 7 Vet. App. 411, 414 (1995) ("[m]etatarsalgia"
comprises "pain" at the juncture of the metatarsal and toe
bones)), and pain alone, significantly, does not constitute a
disability for which service connection may be granted.  See
generally Sanchez-Benitez, supra.  In addition, while
irrelevant in view of the latter observation, the Board would
merely observe, as pertinent to the veteran's alternative
contention that his currently assessed thoracic neuralgia or
chest pain is caused by degenerative disc disease involving
his thoracic spine, that service medical records are negative
for any reference to disc disease involving the veteran's
thoracic spinal segment.  Finally, the veteran's chest pain
is not shown to be a manifestation (an electrocardiogram
administered the veteran by VA in January 1994 was "normal")
of any disability of chronic derivation shown in service (or
thereafter).  In view of the foregoing observations, then,
the Board concludes that the preponderance of the evidence is
against the veteran's claim for service connection for
thoracic neuralgia or chest pain, including due to
degenerative disc disease of the thoracic spine.  38 U.S.C.A.
� 1131; Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096.

In reaching the foregoing determination, the Board is
cognizant that the veteran, based on his testimony at
personal hearings held in December 1996 and April 1998,
feels strongly that his currently assessed chest pain is,
either in itself or as a manifestation of underlying related
disablement, representative of disability of service origin.
The substance of the veteran's testimony, owing to the
reasoning advanced by the Board above, is clinically moot.
In any event, while the Board is sensitive to the veteran's
expressed views, it would respectfully point out that he is,
as a lay person, not competent to provide an opinion which
requires medical expertise.  See Espiritu v. Derwinski, 2
Vet. App. 492 (1992).

ORDER

Service connection for thoracic neuralgia or chest pain,
including due to degenerative disc disease of the thoracic
spine, is denied.

	BARBARA B. COPELAND
	Member, Board of Veterans' Appeals


judge_norm: JAMES R SIEGEL

condition: gi

text:
Citation Nr: 0110000
Decision Date: 04/05/01    Archive Date: 04/11/01

DOCKET NO.  95-00 137A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent
for hiatal hernia.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

A. P. Simpson, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1982 to May
1992.

This case comes before the Board of Veterans' Appeals (the
Board) on appeal from March 1994 rating decision of the
Houston, Texas, Department of Veterans Affairs (VA) Regional
Office (RO).  The RO granted service connection for hiatal
hernia and assigned a noncompensable evaluation, effective
May 29, 1992.

In an April 1996 rating decision, the RO granted a 10 percent
evaluation for hiatal hernia, effective June 8, 1993.  In a
July 2000 rating decision, the RO granted the 10 percent
evaluation for hiatal hernia back to May 29, 1992, the day
after the veteran's discharge from service.

When the case was previously before the Board, the issue of
entitlement to an initial evaluation in excess of 10 percent
for allergic rhinitis was on appeal.  In an October 1997
statement, the veteran stated he wanted a 30 percent
evaluation for such disability.  In a July 2000 rating
decision, the RO granted a 30 percent evaluation for allergic
rhinitis, effective May 29, 1992.  The RO determined this was
a complete grant of benefits as to this claim.  The veteran's
representative has not contested such finding.  In AB v
Brown, 6 Vet. App. 35 (1993), the United States Court of
Appeals for Veterans Claims (Court) held that, where there is
no clearly expressed intent to limit the appeal to
entitlement to a specific disability rating for the service
connected condition, the RO and the Board are required to
consider entitlement to all available ratings for that
condition.  As the grant of the 30 percent evaluation,
effective all the way back to the day following the veteran's
discharge from service, satisfies the veteran's request, the
Board finds that this claim is no longer on appeal.

In his substantive appeal submitted in January 1995, the
veteran indicated that he wanted to testify at a Travel Board
hearing.  However, he withdrew that request the following
month.

This case was previously remanded in February 2000 and May
2000 for additional development and adjudicative actions.
The case has been returned to the Board for further appellate
review.

FINDING OF FACT

Hiatal hernia is manifested by occasional regurgitation,
reflux, no weight loss, and no more than mild to moderate
symptoms.

CONCLUSION OF LAW

The criteria for an initial evaluation in excess of
10 percent for hiatal hernia have not been met.  38 U.S.C.A.
� 1155 (West 1991); 38 C.F.R. � 4.115, Diagnostic Code 7346
(2000).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Factual Background

A November 1992 VA examination report shows the veteran
reported that an upper gastrointestinal series during service
had shown a hiatal hernia, but no ulcer.  He complained of
sometimes having preprandial, but mostly postprandial pain,
which was usually relieved by Zantac.  The veteran stated the
antacids were not found to be effective.  He reported
occasional nausea and regurgitation, but stated he did not
regurgitate very often.  The veteran denied weight loss.  The
examiner stated the veteran was six feet tall and weighted
240 pounds, and that the abdomen was soft.  The diagnosis was
hiatal hernia, intermittently symptomatic.

A January 1993 VA outpatient treatment report shows the
veteran reported a history of hiatal hernia for four years.
He stated he had run out of Zantac and had increased
symptoms.  The examiner gave the veteran a refill on Zantac.

A March 1993 esophagogastroduodenoscopy showed a normal
esophagus, stomach and bulb and a small hiatal hernia.  In
June 1993, the veteran reported reflux problems.  He stated
he was on Zantac, but that he remained symptomatic.  The
examiner stated the veteran should be seen at the
gastrointestinal clinic in six months.  In August 1993, the
veteran complained of right lower quadrant pain.  The
examiner stated that examination of the abdomen revealed no
tenderness, rebound, or guarding.  The diagnostic impression
was abdominal pain and perianal ulcer.  In February 1994, the
veteran reported a lot of reflux.  He stated he was on
Zantac, but that such was not relieving his symptoms.  The
examiner stated the physical examination was negative.  The
impression was gastroesophageal reflux disease.

A July 1997 VA examination report shows the veteran denied
ever having been hospitalized for any illness or injury.  The
veteran reported that when he ate, he would have to burp.  He
stated gas goes up his esophagus and that he would have to
get up at night because of the reflux.  The veteran stated he
slept on pillows at night because of his symptoms.  He noted
he would get pressure in his stomach when he ate.  The
veteran reported he vomited three times per month.  He stated
he was taking Zantac.  When asked how his hiatal hernia was
bothering him, the veteran related that there was a
tightness.  He stated that he had pain in his belly button
when he stretched or when he did sit-ups.  The examiner noted
he had reviewed the veteran's outpatient treatment reports.
He stated the veteran was six feet tall and weighed 230
pounds.  The examiner noted the veteran was in no acute
distress.  The veteran's abdomen was reported as "soft"
without organomegaly.  The examiner entered a diagnosis of
hiatal hernia with mild to moderate symptoms on H2 blockers.

An October 1997 VA outpatient treatment report shows the
veteran was seen asking for a gastrointestinal consult.  In
December 1997, the veteran reported heartburn, but no other
problems.  He stated the Pepcid was not helping very much.
The examiner thought the veteran should try Prevacid, which
is what he prescribed for the veteran.

A July 1998 VA outpatient treatment report shows the veteran
reported he had changed his meat intake in favor of low fat
meats but had not given up on heavy loads of ice cream in the
evening.  No diagnosis was entered.

The veteran was afforded another examination by the VA in
December 1998.  He stated that he had a lot of acid coming up
his throat, especially at night.  He regurgitated food, had
pressure in the chest and a burning sensation in the
esophagus and stomach.  He occasionally vomited undigested
food or fluid.  His symptoms were usually relieved with
medication.  No weight loss was reported.  On examination,
the veteran weighed 240 pounds.  The abdomen was soft and
benign.  There was no organomegaly or remarkable tenderness
noted.  He had no hernia.  The diagnosis was hiatal hernia,
symptomatic.

A December 1997 upper gastrointestinal series revealed
normal-appearing esophagus, stomach, and duodenum/proximal
small bowel.

A June 2000 VA examination report shows the veteran reported
he had heartburn on a daily basis after meals.  He stated his
symptoms were worse with dairy products and spicy food.  The
veteran reported occasional bloating of his abdomen and
regurgitation of food from his stomach if he laid down after
a big meal.  The veteran denied dysphagia, weight loss,
nausea, and vomiting.  The veteran stated his weight had
steadily increased over the last few years.  He stated he
took Zantac two times per day, which he related did not help
him.  Physical examination revealed a healthy-appearing,
robust gentleman in no acute distress.  The examiner stated
the veteran appeared well fed with no evidence of anemia,
jaundice, or wasting.  The abdomen was soft and nontender
with no organomegaly and good bowel sounds.  The examiner
stated the veteran had gastroesophageal reflux disease, which
was poorly controlled on Zantac.

Another VA examination was conducted in June 2000.  The
veteran reported having heartburn on a daily basis after
meals.  He stated he occasionally had dysphagia, but very
mildly and intermittently.  The veteran reported that once in
a while he would have bloating of his abdomen and he also had
occasional regurgitation when lying down after a meal.  He
stated he would get occasional abdominal discomfort.  The
examiner stated the veteran was healthy appearing, in no
acute distress, and no signs of chronic disease.  He stated
the veteran's general health appeared "excellent."  The
abdomen was soft and nontender with good bowel sounds and no
organomegaly.  The examiner stated the veteran had mild-to-
moderate gastroesophageal reflux disease.  He noted that
although the veteran took Zantac, he was still symptomatic.

II.  Duty to Assist

The Board observes that the recently enacted legislation has
eliminated the well-grounded claim requirement, has expanded
the VA's duty to notify the veteran and the representative,
and has enhanced its duty to assist a veteran in developing
the facts pertinent to the claim.  See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(Nov. 9, 2000).  Since these legislative changes serve to
eliminate the "gatekeeping" function in the VA claims
process imposed by the standard for a well-grounded claim,
see, e.g., Hensley v. West, 212 F.3d 1255, 1260 (Fed. Cir.
2000), the Board is of the opinion that the new legislative
changes are more favorable to the veteran.  See Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991).  Thus, given that
the changes articulated in the new legislation are less
stringent than the function served by requiring a claimant to
establish a well-grounded claim, the Board determines that no
prejudice will result to the veteran by the Board's
consideration of this matter.  See Bernard v. Brown, 4 Vet.
App. 384, 393-94 (1993).

The Board finds that VA has met its duty to notify and assist
in the veteran's case.  The veteran has not indicated he is
in receipt of any private medical treatment.  The RO has
obtained the veteran's VA medical treatment records from the
time he was separated from service in 1992 to the present.
Additionally, the RO provided the veteran with several
examinations in relation to his hiatal hernia.

The record discloses that the April 1996 and July 2000 rating
decisions provided the veteran with the reasons and bases for
the continuance of the 10 percent evaluation for hiatal
hernia.  The June 1994 statement of the case and the April
1996, September 1997, and July 2000 supplemental statements
of the case provided the veteran with the applicable criteria
for hiatal hernia, which showed the symptoms for higher
evaluations.  These notification letters were sent to the
veteran's latest address of record, and correspondence copies
were mailed to the veteran's accredited representative, the
Veterans of Foreign Wars of the United States.  These
notifications were not returned by the United States Postal
Service as undeliverable, see Mindenhall v. Brown, 7 Vet.
App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet.
App. 62, 64-65 (1992) (discussing that the presumption of
regularity of the administrative process applies to notices
mailed by the VA)), and thus the Board concludes that the
veteran, and his representative, have received these
determinations.

Accordingly, the Board finds that all facts have been
developed to the extent possible.

III.  Criteria

Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.  38
U.S.C.A. � 1155; 38 C.F.R. Part 4 (2000).  Separate
diagnostic codes identify the various disabilities.  VA has a
duty to acknowledge and consider all regulations which are
potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589
(1991).

The veteran is contesting the disability evaluation that was
assigned following the grant of service connection.  This
matter therefore is to be distinguished from one in which a
claim for an increased rating of a disability has been filed
after a grant of service connection.  The Court has observed
that in the latter instance, evidence of the present level of
the disability is of primary concern, Fenderson v. West, 12
Vet. App. 119, 126 (1999) (citing Francisco v. Brown, 7 Vet.
App. 55 (1994)), and that as to the original assignment of a
disability evaluation, VA must address all evidence that was
of record from the date the filing of the claim on which
service connection was granted (or from other applicable
effective date).  See Fenderson, 12 Vet. App. at 126-127.
Accordingly, the evidence pertaining to an original
evaluation might require the issuance of separate, or
"staged," evaluations of the disability based on the facts
shown to exist during the separate periods of time.  Id.

Under the Diagnostic Code for hiatal hernia, where hiatal
hernia is manifested by symptoms of pain, vomiting, material
weight loss and hematemesis or melena with moderate anemia,
or other symptom combinations productive of severe impairment
of health, a 60 percent disability evaluation is warranted.
38 C.F.R. � 4.115, Diagnostic Code 7346.  Where there are
symptoms of persistently recurrent epigastric distress with
dysphagia, pyrosis, and regurgitation, accompanied by
substernal or arm or shoulder pain, productive of
considerable impairment of health, a 30 percent disability
evaluation is warranted.  Id.  A 10 percent disability
evaluation is assigned where there are two or more of the
symptoms listed for the 30 percent evaluation, with less
severity.  Id.

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
the claim, in which case, the claim is denied.  Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

IV.  Analysis

A.  Increased Evaluation

After having carefully reviewed the evidence of record, the
Board finds that the preponderance of the evidence is against
an initial evaluation in excess of 10 percent for hiatal
hernia.  In November 1992, the veteran complained of
occasional nausea and regurgitation.  He noted he did not
regurgitate often.  In 1993 and 1994, he veteran reported
reflux symptoms, even though he was taking Zantac.  In July
1997, the veteran stated he would have to burp while eating
and that gas would go up his esophagus.  He stated he had to
sleep on pillows because of his reflux when he would lie
down.  The veteran reported vomiting three times per month.
The examiner stated the veteran had mild to moderate symptoms
of hiatal hernia.

In December 1998, an upper gastrointestinal series revealed
normal-appearing esophagus, stomach, and duodenum/proximal
small bowel.  In June 2000, the veteran reported on two VA
examinations having heartburn on a daily basis.  He stated he
had occasional bloating and regurgitation of food.  He denied
weight loss, nausea, and vomiting, but reported dysphagia.
The veteran noted he had gained weight over the last few
years.  The examiner stated the veteran was healthy appearing
and that his general health appeared "excellent."  The
examiner concluded the veteran had gastroesophageal reflux
disease, which he stated was mild to moderate.  The Board
finds that the above-described symptoms are indicative of no
more than a 10 percent evaluation.  See 38 C.F.R. � 4.115,
Diagnostic Code 7346.

The Board must now consider whether an evaluation in excess
of 10 percent is warranted.  The Board finds that the
evidence does not establish that the service-connected hiatal
hernia is any more than 10 percent disabling.  See id.
Specifically, the veteran has not reported pyrosis.  See id.
Although he has asserted he has substernal or arm or shoulder
pain, no medical professional has substantiated such
findings.  See id.  Even the reported complaints in the VA
examination reports and outpatient treatment reports do not
show complaints of such symptoms.  No medical professional
has stated that the veteran's hiatal hernia has caused
"considerable impairment of health."  See id.  In fact,
when examined in July 1997, the examiner stated the veteran
was in no acute distress.  In June 2000, the examiner stated
the veteran was healthy appearing and in no acute distress.
In the second examination in June 2000, the examiner stated
the veteran's general health appeared "excellent."  The
veteran even reported he had gained weight in the last few
years.

There is no competent evidence of recurrent epigastric
distress with dysphagia, pyrosis, and regurgitation
accompanied by substernal or arm or shoulder pain productive
of considerable impairment of health to warrant a 30 percent
evaluation.  See id.  Anemia has never been diagnosed by a
medical professional, and in the June 2000 examination
report, the examiner stated specifically that the veteran did
not have anemia.  See id.  The veteran's report of vomiting
three times per month does not establish a basis for a higher
evaluation.  Regardless, the veteran denied vomiting at the
time of the June 2000 examination.  Additionally, mild to
moderate symptoms of hiatal hernia or gastroesophageal reflux
disease do not warrant any more than a 10 percent evaluation,
as such finding does not establish a disability that has
caused "considerable" impairment of health.  See id.  The
Board finds that the preponderance of the evidence is against
an evaluation in excess of 10 percent for hiatal hernia.  See
id.

The veteran is competent to report his symptoms; however, to
the extent that he has stated that his hiatal hernia is worse
than the current evaluation of 10 percent contemplates, the
medical findings do not support his contentions for a higher
evaluation.  The Board finds that the veteran's allegations
of having arm and shoulder pain are not credible, as they
have not been substantiated by any medical professional.  The
Board attaches greater probative weight to the clinical
findings of skilled, unbiased professionals than to the
veteran's statements, even if sworn, in support of a claim
for monetary benefits.  However, even accepting his
statements as true, an evaluation in excess of 10 percent is
not warranted.  To this extent, the preponderance of the
evidence is against his claim, and there is no doubt to be
resolved.  See Gilbert, 1 Vet. App. at 55.

The Board is aware that in the July 2000 examination report,
the examiner noted the veteran had not had a recent upper
endoscopy.  The Board does not find that a remand is
warranted to have the veteran undergo such testing.  The
criteria for the veteran's service-connected hiatal hernia
are not based upon whether a current hiatal hernia exists;
rather, the criteria are based upon the resultant symptoms
caused by the hiatal hernia.  The veteran's service-connected
hiatal hernia has been evaluated based upon those symptoms.
Even if a current upper endoscopy showed a hiatal hernia, the
veteran's evaluation would not be affected.  Thus, a remand,
as suggested by the veteran's representative, would serve no
useful purpose.

B.  Extraschedular Consideration

Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience.
38 C.F.R. � 3.321(b)(1) (2000).  To accord justice,
therefore, to the exceptional case where the schedular
evaluations are found to be inadequate, the Under Secretary
for Benefits or the Director, Compensation and Pension
Service, upon field station submission, is authorized to
approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities.  Id.

The governing norm in these exceptional cases 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.  Id.

The Board has considered whether the service-connected hiatal
hernia warrants an extraschedular evaluation.  However, the
clinical presentation of the veteran's service-connected
disability is neither unusual nor exceptional as to render
impractical the application of the regular schedular
standards.  See id.  The record, moreover, does not reflect
frequent periods of hospitalization due to this disability or
interference with employment to a greater degree that that
contemplated by the regular schedular standards, which are
based on average impairment of employment.  In fact, the
veteran has stated he has never been hospitalized for any
illness.

The Board finds, accordingly, that the criteria for
submission for assignment of an extraschedular evaluation
pursuant to 38 C.F.R. � 3.321(b)(1) are not met as to the
service-connected disability.  See Bagwell v. Brown, 9 Vet.
App. 157, 158-159 (1996); Shipwash v. Brown, 8 Vet. App. 218,
227 (1995).

ORDER

Entitlement to an initial evaluation in excess of 10 percent
for hiatal hernia is denied.

	James R. Siegel
	Acting Member, Board of Veterans' Appeals