text:
Citation Nr: 0205001
Decision Date: 05/23/02    Archive Date: 06/03/02

DOCKET NO.  96-38 269	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania

THE ISSUES

1.  Entitlement to an increased disability evaluation for
post traumatic stress disorder (PTSD), currently evaluated as
70 percent disabling.

2.  Entitlement to an increased disability evaluation for the
residuals of a shell fragment wound to the left upper arm,
currently evaluated as 20 percent disabling.

3.  Determination of proper initial rating for shell fragment
wound scar to the right hand with ulnar nerve sensitivity,
currently evaluated as 10 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

C. Trueba-Sessing, Associate Counsel

INTRODUCTION

The veteran had active service from December 1967 to December
1969.  The case comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Philadelphia, Pennsylvania.

The Board notes that the veteran perfected the issue of
service connection for ulnar sensitivity, which was
subsequently granted in a June 1998 rating decision and was
subsumed in the rating for the veteran's service connected
shell fragment wound scar to the right hand.  As such, this
issue is not currently before the Board for appellate review.

The veteran also initiated his appeal for a claim of
entitlement to a total rating based upon individual
unemployability due to a service-connected disability (TDIU),
and a January 2000 statement of the case was issued to
address this claim.  A substantive appeal was not submitted
for this issue.  And, in an April 2000 statement the veteran
indicated that he was not seeking unemployability at this
time as he was employed.  A May 2000 statement from the
veteran representative reiterated that the veteran was not
seeking compensation under 38 C.F.R. � 4.16.  As such, the
veteran's November 1998 claim for TDIU has been withdrawn.
See 38 C.F.R. � 20.204 (2001).

Nevertheless, in a January 2002 statement the veteran
indicated that he is again seeking entitlement to TDIU, and
the record contains a May 2002 intra-VA e-mail noting that
the veteran has retired from his employment with the U.S.
Postal Service.  As such, this issue is referred to the RO
for appropriate action.  Additionally, in April and May 2000
statements, the veteran indicated that he is seeking
increased ratings for tinnitus and fever of unknown origin
(claimed as dengue fever), and to reopen previously denied
claims of service connection secondary to Agent Orange
exposure (which include pain and swelling of both feet, a
photosensitivity rash, numbness of the fingers, and blurred
vision with headaches).  Thus, these issues are also referred
to the RO for appropriate action.

Lastly, in February and March 1999 VA forms 9 (Appeal to
Board of Veterans' Appeals), the veteran requested a hearing
before a traveling member of the Board, and thus, the hearing
was scheduled for September 30, 1999.  However, in a
September 17, 1999 letter, the veteran indicated that he was
unable to attend the scheduled hearing, but that he still
desired the appellate process to continue.  As the record
does not contain further indication that the veteran or his
representative have requested that the hearing be
rescheduled, the Board deems the veteran's prior request for
a travel Board hearing withdrawn.  See 38 C.F.R. � 20.704
(2001).

FINDINGS OF FACT

1.  The VA has fulfilled its duty to assist the veteran by
obtaining and fully developing all relevant evidence
necessary for the equitable disposition of the issues on
appeal.

2.  Prior to and as of November 7, 1996, the veteran's PTSD
does not render him virtually isolated, nor does he have
totally incapacitating psychoneurotic symptoms bordering on
gross repudiation of reality and disturbed thought or
behavioral processes associated with almost all daily
activities, such as fantasy, confusion, panic, and explosions
of aggressive energy resulting in a profound retreat from
mature behavior.  The medical evidence clearly indicates that
he is able to keep a job and that his occupational impairment
is not serious.

3.  As of November 7, 1996, the veteran's PTSD is not
productive of total occupational and social impairment, due
to such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name.

4.  The veteran's residuals of a shell fragment wound to the
left upper arm is moderately severe in degree, but it is not
severe.

5.  The veteran's shell fragment wound scar to the right hand
with ulnar nerve sensitivity is characterized by a 3 to 3.5
centimeter laceration scar with minor tenderness remaining,
and reported soreness over the right hand on the ulnar side
of the hypothenar muscle.  However, the evidence neither
shows ankylosis or limitation of motion of the right wrist or
fingers, nor shows moderate incomplete paralysis of the ulnar
nerve.

CONCLUSIONS OF LAW

1.  The criteria for the assignment of a disability
evaluation in excess of 70 percent for PTSD, effective prior
to and as of November 7, 1996, have not been met.  38
U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 1991 & Supp. 2001);
38 C.F.R. �� 3.321, 4.1- 4.14, 4.125-4.130, Diagnostic Code
9411(2001); 38 C.F.R. �� 3.321, 4.1-4.14, 4.125-4.132,
Diagnostic Code 9411 (1996); 66 Fed. Reg. 45,630-45,632 (Aug.
29, 2001) (to be codified as amended at 38 C.F.R. � 3.159);
Karnas v. Derwinski, 1 Vet. App. 308 (1991).

2.  The criteria for the assignment of a disability
evaluation in excess of 20 percent for the residuals of a
shell fragment wound to the left upper arm have not been met.
U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 1991 & Supp. 2001);
38 C.F.R. �� 3.321, 4.1-4.14, 4.40-4.56, 4.59, 4.73,
Diagnostic Code 5303 (2001); 66 Fed. Reg. 45,630-45,632 (Aug.
29, 2001) (to be codified as amended at 38 C.F.R. � 3.159).

3.  The initial rating of 10 percent assigned to the
veteran's shell fragment wound scar to the right hand with
ulnar nerve sensitivity is appropriate, and the criteria for
an initial disability evaluation in excess of 10 percent have
not been met.  U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 1991
& Supp. 2001); 38 C.F.R. �� 3.321, 4.1-4.14, 4.40-4.42,
4.118, 4.124a, Diagnostic Codes 7805, 8516 (2001); 66 Fed.
Reg. 45,630-45,632 (Aug. 29, 2001) (to be codified as amended
at 38 C.F.R. � 3.159); Fenderson V. West, 12 Vet. App. 119
(1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.
�� 5100, 5102, 5103, 5103A, 5107).  This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits.  Further, VA issued regulations to implement
the VCAA in August 2001.  66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified as amended at 38 C.F.R. �� 3.102, 3.156(a),
3.159 and 3.326(a)).  Except for the amendment to 38 C.F.R.
� 3.156(a), the second sentence of 38 C.F.R. � 3.159(c), and
38 C.F.R. � 3.159(c)(4)(iii), VA stated that the provisions
of this rule merely implement the VCAA and do not provide any
rights other than those provided in the VCAA.  66 Fed. Reg.
45,620, 45,629.  Accordingly, generally where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions likewise will be satisfied.

First, VA has a duty to notify the veteran and his
representative of any information and evidence needed to
substantiate and complete a claim.  38 U.S.C.A. � 5103A (West
Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to
be codified as amended at 38 C.F.R. � 3.159(b)).  The veteran
has been informed, via a June 1996 rating decision and an
August 1996 Statement of the Case, of the evidence needed to
prove his claims on appeal.  The notification requirement has
therefore been satisfied.

Secondly, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claims.  38 U.S.C.A. �
5103A (West Supp. 2001); 66 Fed. Reg. 45,630-45,632 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. � 3.159(c)).
The veteran underwent VA examinations for the claimed
disabilities in February 1998 and June 2000.  Additionally,
although the veteran has been given the opportunity to
present testimony during an appeal hearing, the veteran has
declined such opportunity.  Therefore, the duty to assist
requirement has been satisfied as well.

Disability evaluations are determined by evaluating the
extent to which the veteran's service-connected disabilities
affect his ability to function under the ordinary conditions
of daily life, including employment, by comparing his
symptomatology with the criteria set forth in the Schedule
for Rating Disabilities (Rating Schedule).  See 38 U.S.C.A.
� 1155 (West 1991); 38 C.F.R. �� 4.1, 4.2, 4.10 (2001).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).  In addition, an appeal from the initial assignment
of a disability rating requires consideration of the entire
time period involved, and contemplates "staged ratings"
where warranted.  See Fenderson v. West, 12 Vet. App. 119
(1999).  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.  See 38 C.F.R. � 4.7 (2001).

I. Increased Rating for PTSD.

In this case, in a May 1990 rating decision, the veteran was
granted service connection for PTSD, and was assigned a 30
percent disability evaluation under Diagnostic Code 9411,
effective May 1988.  Subsequently, in a January 1991 rating
decision, such award was increased to a 50 percent evaluation
going back to May 1988.  In a July 1994 Board decision, the
veteran was denied an increased rating for PTSD in excess of
50 percent.  However, in a June 1998 rating decision, the
veteran's award was again increased to a 70 percent rating,
effective January 1996.  At present, the veteran is seeking
an increased disability evaluation in excess of 70 percent
for his PTSD.

During the pendency of the veteran's appeal, the rating
criteria for evaluating mental disorders was revised and
amended effective November 7, 1996.  In Karnas v. Derwinski,
the United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (the Court) held that where the law or regulation
changes after a claim has been filed, but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant applies.  Karnas
v. Derwinski, 1 Vet. App. 308, 313 (1991).  However, where
compensation is awarded or increased pursuant to any Act or
administrative issue, the effective date of such an award or
increase shall not be earlier than the effective date of the
Act or administrative issue.  See 38 U.S.C.A. � 5110(g) (West
1991).  In addition, the General Counsel of VA has held that
if the revised version of the regulation is more favorable,
the retroactive reach of that regulation under 38 U.S.C.A. �
5110(g) (West 1991) can be no earlier than the effective date
of that change. See VAOPGCPREC 3-2000 (2000).  As such, the
revised rating schedule for mental disorders cannot be
applied to a claim for any date prior to November 6, 1996.

Prior to November 6, 1996, in assessing the severity of a
mental disorder, such as PTSD, the effect of the disorder on
the veteran's ability to interact on both a social and
industrial level, as confirmed by the current clinical
findings, was considered. Social inadaptability, however, was
evaluated only as it affected or impaired industrial
adaptability.  See 38 C.F.R. � 4.132, Diagnostic Code 9411,
Note (1) (1996).

The prior Schedule for Rating Disabilities envisioned that a
70 percent evaluation for PTSD was warranted where the
ability to establish and maintain effective or favorable
relationships with people was severely impaired, and the
psychoneurotic symptoms were of such severity and persistence
that there was severe impairment in the ability to obtain or
retain employment.  See 38 C.F.R. � 4.132, Diagnostic Code
9411 (1996).  A 100 percent evaluation was warranted where
the attitudes of all contacts except the most intimate are so
adversely affected as to result in virtual isolation in the
community.  In the alternative, a 100 percent evaluation was
warranted if there were totally incapacitating psychoneurotic
symptoms bordering on gross repudiation of reality and
disturbed thought or behavioral processes associated with
almost all daily activities, such as fantasy, confusion,
panic, and explosions of aggressive energy resulting in a
profound retreat from mature behavior.  As well, a 100
percent evaluation was awarded if the veteran was
demonstrably unable to obtain or retain employment.  Id. The
appellant only needed meet one of these criteria to be
granted a 100 percent evaluation.  Johnson v. Brown, 7 Vet.
App. 95 (1994).

As of November 7, 1996, the schedular criteria for evaluating
mental disorders incorporate the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV).  Under these criteria, a
70 percent evaluation contemplates occupational and social
impairment with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation, obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance or hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); and inability to establish or maintain effective
relationships.  See 38 C.F.R. � 4.130, Diagnostic Code 9411
(2001).

A 100 percent evaluation is warranted when there is total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name.  See id.

The present record shows that the veteran has been treated
for his disabilities at VA medical facilities since the early
1980s.  April 1996 medical notations from the Lebanon VA
Medical Center (VAMC) indicate that the veteran's symptoms
included having to work in a separate section at work,
embarrassing outbursts at work, and alienation to the point
of having a separate bedroom from his wife and no marital
relations for years.  At this time, he also had constant
family tension, vertigo, enormous feelings of guilt, and
fears of eternal damnation for actions in Vietnam.

In February 1998, he underwent a VA examination.  At this
time, he did not have hypervigilance or suicidal ideation,
and his thinking was coherent and appropriate.  However, he
was constantly threatened by recurrent panic attacks, had a
sense of foreshortened future, showed avoidance and
dissociation (including detachment from his wife and co-
workers), and reported auditory hallucinations related to
flashbacks from the war.  Additionally, he had symptoms of
increased arousal such as difficulty falling asleep,
irritability and difficulty with concentrating and
abstraction.  His cognitive deficit seemed to be related to
his panic anxiety and social discomfort, as opposed to
cortical dysfunction.  The veteran's diagnosis was PTSD with
panic attacks, and he was assigned a global assessment of
functioning (GAF) score of 51, which according to the
American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (DSM-IV), equates
to moderate symptoms (e.g. flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).

During a July 1998 VA infectious, immune and nutritional
disabilities examination, the veteran reported problems at
work, with his ex-wife, and with his current wife.  He also
reported that he was estranged from his brother and son
because they were "afraid" of him, and he appeared
distraught, angry, upset and quite distressed by his anxiety.

September 1998 notations from the Lebanon VAMC show the
veteran was diagnosed with major depressive disorder with
panic episodes and PTSD.  At this time, his GAF score ranged
from 60 to 75.  According to the DSM-IV, a GAF score ranging
from 51 to 60 equates to moderate symptoms (e.g. flat affect
and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers).  A GAF score ranging from 61 to 70 equates to some
mild symptoms (e.g. depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning
(e.g. occasional truancy, or theft within the household), but
generally functioning pretty well, and with some meaningful
interpersonal relationships.  And, a GAF score ranging from
71 to 80 equates to transient and expectable reactions to
psychosocial stressors, if symptoms are present, (e.g.,
difficulty concentrating after family argument); and/or no
more than slight impairment in social, occupational, or
social functioning (e.g., temporarily falling behind in
schoolwork).

March 1999 notations from the Lebanon VAMC show the veteran
reported working in an extremely congested, pressured area in
which he responded to constant and changing demands from
others.  This situation removed the veteran's sense of
personal control, which aggravated his PTSD and lowered his
performance ability and threatened his ability to sustain
working.

In June 2000, the veteran underwent a VA mental examination.
At that time, he reported he worked in a cubicle sorting
magazines, and although he reported he could not cope with
any stress, he seemed to function in a high capacity with
changes in his job setting.  He did not have problems with
combativeness and had not received any warnings from his
employer.  Upon examination, he was found to be able to
maintain good personal hygiene, although he was poorly
groomed and unshaven at the time of the examination.  He was
alert and oriented, had good eye contact, and had fairly calm
speech although disrupted by nervous changes in tone.  As
well, he was anxious and on edge, and had euphonic mood with
some dysphoric mood at other times.  However, he denied
active suicidal/homicidal thoughts, although he had some
passive suicidal ideation related to his tinnitus.  His
thought process was clear, coherent and goal oriented, with
no obsessions, compulsions, delusions, hallucinations or
psychotic symptoms.  And, he had intact short and long term
memory, and good abstraction ability, with good judgment and
insight.  His occupational impairment was not felt to be
serious in that he was able to keep a job.  His diagnosis was
PTSD, and his GAF score ranged from 51 to 55.

Lastly, an October 2000 statement from Dr. K, indicates that
the veteran has severe anxiety, and was having difficulties
coping with changes at work.

Upon a review of the evidence, the Board finds that the
veteran is not virtually isolated, as he remains married and
continued to work until his reported retirement in May 2002.
Additionally, he does not have totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality and disturbed thought or behavioral processes
associated with almost all daily activities, such as fantasy,
confusion, panic, and explosions of aggressive energy
resulting in a profound retreat from mature behavior.  The
Board acknowledges that the evidence shows the veteran has
had embarrassing outbursts at work, per the April 1996 VAMC
notations, and that his brother and son are reportedly afraid
of him, per the July 1998 VA examination.  However, as noted,
the evidence simply does not show that his symptoms border on
gross repudiation of reality and disturbed thought or
behavioral process, or that his aggressive explosions result
in a profound retreat from mature behavior.  Lastly, although
the veteran has reportedly retired, the medical evidence
clearly indicates that he is able to keep a job and that his
occupational impairment is not serious, per the June 2000 VA
examination report.  As such, he is clearly not demonstrably
unable to obtain or retain employment.  Given these findings,
the veteran's PTSD symptomatology does not meet the criteria
required for the assignment of a disability evaluation in
excess of 70 percent, effective prior to and as of November
7, 1996, under the old criteria for mental disorders.  See
38 C.F.R. �� 4.125-4.132, Diagnostic Code 9411 (1996).

Furthermore, the June 2000 VA examination report discussed
above noted the veteran's thought process was clear, coherent
and goal oriented, with no obsessions, compulsions,
delusions, hallucinations or psychotic symptoms.  As well,
although he seemed to have passive suicidal ideation related
to his tinnitus, the evidence does not show a persistent
danger of hurting self or others.  He has been found able to
maintain personal hygiene, and to have intact short and long
term memory.  Additionally, the veteran's PTSD is not
characterized by obsessional rituals which interfere with
routine activities; speech intermittently illogical, obscure,
or irrelevant; near-continuous panic or depression affecting
the ability to function independently, appropriately, and
effectively; spatial disorientation; and inability to
establish or maintain effective relationships.  As such, his
PTSD symptomatology does not meet the criteria required for
the assignment of a disability evaluation in excess of 70
percent, effective as of November 7, 1996, under the new
criteria for mental disorders.  See 38 C.F.R. �� 4.125-4.130,
Diagnostic Code 9411 (2001).

II.  Increased Ratings for Shell Fragment Wound Disabilities.

The veteran was granted service connection and a 20 percent
rating for the residuals of a shell fragment wound to the
left upper arm with retained foreign body in a June 1970
rating decision.  Subsequently, the veteran's award was
increased to a 30 percent rating in a January 1975 rating,
and decreased to a 20 percent rating in a February 1976
rating.  In a July 1976 Board decision, the veteran was
denied entitlement to a disability rating in excess of 20
percent for his left upper arm disability.  He is presently
seeking a disability evaluation in excess of 20 percent.

Additionally, in a June 1996 rating decision, the veteran was
granted service connection and a noncompensable disability
evaluation for the residuals of a shell fragment wound to the
right hand characterized by a scar.  The veteran expressed
disagreement with the initial rating assigned to his
disability and perfected the appeal for this issue.
Subsequently, in a June 1998 rating decision, the veteran's
disability was increased to a 10 percent rating, and was
recharacterized as shell fragment wound scar to the right
hand with ulnar nerve sensitivity.  Although the veteran's
disability was increased to a 10 percent rating, inasmuch as
the grant of the 10 percent evaluation is not the maximum
benefit under the rating schedule, the claim for an initial
evaluation in excess of 10 percent for the right hand
disability remains a viable issue for appellate consideration
by the Board.  AB v. Brown, 6 Vet. App. 35, 38 (1993).

With respect to the evidence of record, the veteran underwent
a VA examination in June 1996.  Upon examination of the left
upper arm, he had a well healed wound and surgical scar over
the medial aspect above the elbow, and anterior aspect of the
mid upper arm with a 2.5 centimeter by 1.8 centimeter scar,
with slightly defective soft tissue and tenderness.  There
was no evidence of localized muscle wasting, or limitation in
active range of motion throughout the shoulder, elbow or left
hand.  The range of motion of his left elbow was from 0 to
140 percent, and had preserved pinprick sensation throughout
the left upper extremity except over the scar region.  In
addition, upon examination of the right hand, he had a well
healed, superficial scar over the lateral aspect of the right
hand (3.5 centimeters in length) with minor tenderness.  No
localized wasting was observed throughout the hand, and his
wrist joint had painless active range of motion of 0 to 65
degrees of flexion and extension.  Dynamometric hand grip
power measurement responded to 100 force pounds in his right
hand (his dominant hand) and 95 force pounds in his left
hand.  He also had preserved pinprick sensation throughout
the right hand and forearm.  X-rays taken of both the right
hand and left upper extremity were normal.

In November 1996, the veteran underwent a VA peripheral
nerves examination.  At that time, he complained of chronic
pain and numbness in both hands.  However, a nerve conduction
study of both upper extremities and electromyography (EMG)
testing of the right hand showed normal latency, amplitude,
and conduction velocity in median, ulnar, motor and sensory
nerves bilaterally.  No abnormalities were found in the nerve
conduction and EMG studies.  The veteran's diagnosis was
residuals of shell fragment injury in both upper extremities
with no evidence of peripheral neuropathy.

In February 1998, the veteran was again examined.  At this
time he had full active and passive range of motion of the
shoulders, elbows, wrists and hands.  He had motor strength
of 5/5 in all muscle groups of both upper extremities, with
very slight loss of strength on the left and of minimal
significance.  Although he had some atrophy of the right
elbow flexors, he did not have a detectable loss of strength.
Sensory examination revealed intact response to light touch
in all peripheral nerve distributions including the ulnar
nerve, although he had some paresthesias distally in the left
forearm and hand.  The veteran's assessment was no functional
deficits detectable on physical examination and, by history,
no significant functional limitation in terms of range of
motion, weakness, or loss of sensation.  As well, a few minor
physical abnormalities were noted, including loss of muscle
bulk in the elbow flexor and mild loss of intrinsic hand
strength on the left extremity.  However, functionally, the
veteran was deemed unimpaired.

The veteran was last examined by VA in June 2000.  At that
time, x-ray examination of the veteran's right hand and left
humerus revealed no abnormalities.  The veteran's left upper
arm had a 3 by 1 centimeter incision site in the lateral
region close to the elbow and more medially there was a 4 by
2 centimeter incision region.  The biceps muscles were intact
with strength of 4 to 4+/5, and elbow's range of motion
without pain from 0 to 130 degrees.  Over the right hand,
there was a 3 centimeter laceration.  The veteran was able to
approximate the thumb to all the fingers and his motor
strength was 4 to 4+/5.  No erythema, induration or
tenderness was noted over this region, or over the incisions'
area in the left upper extremity.

For rating purposes, the skeletal muscles of the body are
divided into 23 muscle groups in 5 anatomical regions, which
include six muscle groups for the shoulder girdle and arm
(Diagnostic Codes 5301 through 5306) and three muscle groups
for the forearm and hand (Diagnostic Codes 5307 through
5309).  See 38 C.F.R. � 4.55(b) (2001).  For compensable
muscle group injuries which are in the same anatomical
region, but do not act on the same joint, the evaluation for
the most severely injured muscle group will be increased by
one level and used as the combined evaluation for the
affected muscle groups.  See 38 C.F.R. � 4.55(e) (2001).  For
muscle group injuries in different anatomical regions which
do not act upon ankylosed joints, each muscle group injury
shall be separately rated and the ratings combined under the
provisions of 38 C.F.R. � 4.25.  See 38 C.F.R. � 4.55(f)
(2001).  As well, a muscle injury rating will not be combined
with a peripheral nerve paralysis rating of the same body
part, unless the injury affects entirely different functions.
See 38 C.F.R. � 4.55(a) (2001).

Additionally, the Board notes that certain provisions in the
Schedule for Rating Disabilities dealing with muscle injuries
were amended effective July 3, 1997.  See 62 Fed. Reg. 30,235
(June 3, 1997).  The Board notes this change took effect
subsequent to the receipt of the veteran's claims for
increased ratings for shell fragment wound injuries.  When a
law or regulation changes after a claim has been filed, but
before the administrative or judicial appeal process has been
concluded, the version most favorable to the veteran
generally applies.  Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991); White v. Derwinski, 1 Vet. App. 519, 521 (1991).
However, after reviewing the regulations in effect at the
time of the veteran's claims and the changes effective July
3, 1997, the Board finds that the July 3, 1997 amendments did
not substantially change the criteria pertinent to the
veteran's disabilities, but rather added only current medical
terminology and unambiguous criteria.  Thus, as neither the
old version nor the new version are more favorable to the
veteran, the Board finds there is no need to apply both
criteria to the present claims and/or to remand the claims to
the RO for further consideration.  See Bernard v. Brown, 4
Vet. App. 384 (1993).

A. The Residuals of
a Shell Fragment Wound to the Left Upper Arm.

The veteran's left upper arm disability is currently rated as
20 percent disabling under Diagnostic Code 5303, and is
deemed to be moderately severe in nature.  The veteran's
dominant upper extremity is his right extremity.  In this
regard, Diagnostic Code 5303 provides for evaluation of 30
percent for a nondominat upper extremity productive of severe
functional impairment.

The rating criteria prescribes that a moderately severe
injury is characterized by a through and through or deep
penetrating wound, debridement, prolonged infection, or
sloughing of soft parts, with intermuscular scarring. The
objective findings of such type of injury include entrance
and (if present) exit scars indicating track of missile
through one or more muscle groups; indication on palpation of
loss of deep fascia, muscle substance, or normal firm
resistance of muscles when compared with the sound side; and
muscle strength, endurance, or coordinated movements should
demonstrate positive evidence of impairment of function when
compared with the sound side.  See 38 C.F.R. � 4.56(d)(3)
(2001).

Additionally, the rating criteria prescribes that a severe
injury is characterized by through and through or deep
penetrating wound, shattering bone fracture with extensive
debridement, prolonged infection, or sloughing of soft parts,
intermuscular binding and scarring.  The objective findings
of this type of injury include ragged, depressed and adherent
scars indicating wide damage to muscle groups in the missile
track; indication on palpation of loss of deep fascia or
muscle substance or soft flabby muscles in the wound area,
with abnormal muscle swelling and hardening in contraction;
and muscle strength, endurance, or coordinated movements
should demonstrate evidence severe of impairment of function
when compared with the sound side.  There are seven
additional signs of severe muscle injury, which include 1) x-
ray evidence of minute multiple scattered foreign bodies
indicating intermuscular trauma and explosive effect of the
missile; 2) adhesion of scar to one of the long bones,
scapula, pelvic bones, sacrum or vertebrae with epithelial
sealing over the bone rather than true skin covering in an
area where bone is normally protected by muscle; 3)
diminished muscle excitability to pulse electrical current in
electrodiagnostic tests; 4) visible or measurable atrophy; 5)
adaptive contraction of an opposing group of muscle; 6)
atrophy of muscle groups not in the track of the missile,
particularly of the trapezius and serratus in wounds of the
shoulder girdle; and 7) induration or atrophy of an entire
muscle following simple piercing by a projectile.  See 38
C.F.R. � 4.56(d)(4) (2001).

Moreover, when evaluating musculoskeletal disabilities, the
VA may, in addition to applying the schedular criteria,
consider granting a higher rating in cases in which
functional loss due to pain or weakness is demonstrated, and
pain or weakness on use is not contemplated in the relevant
rating criteria.  See 38 C.F.R. �� 4.40, 4.45, 4.59; DeLuca
v. Brown, 8 Vet. App. 202, 204-7 (1995).

After a review of the evidence, the Board finds that, as of
the veteran's VA examination in February 1998, his left upper
arm disability was characterized by full active and passive
range of motion of the shoulders; motor strength of 5/5 in
all muscle groups of both upper extremities, with very slight
loss of strength on the left and of minimal significance;
loss of muscle bulk in the elbow flexor but mild loss of
intrinsic hand strength on the left extremity; and intact
response to light touch in all peripheral nerve distributions
including the ulnar nerve, although some paresthesias
distally in the left forearm and hand.  The evidence did not
show functional deficits detectable on physical examination
or significant functional limitation in terms of range of
motion, weakness, or loss of sensation.  Additionally, during
the June 2000 VA examination, x-rays taken of the veteran 's
left humerus revealed no abnormalities.  His left upper arm
had a 3 by 1 centimeter incision site in the lateral region
close to the elbow and more medially he had a 4 by 2
centimeter incision region.  However, the biceps muscles were
intact with strength of 4 to 4+/5, and his elbow's range of
motion was without pain from 0 to 130 degrees.  No erythema,
induration or tenderness was noted over the incisions' area
in the left upper extremity.

As such, the veteran's residuals of a shell fragment wound to
the left upper arm  more nearly approximates a disability
characterized by evidence of entrance scars indicating track
of missile through one or more muscle groups; loss of deep
fascia, muscle substance or normal firm resistance of muscles
compared with the sound side; and evidence of muscular
impairment upon strength and endurance examinations. Thus,
the veteran's disability is productive of moderately severe
impairment.  See 38 C.F.R. � 4.56(d)(3)(2001).

However, the Board finds that the preponderance of the
evidence does not show that the veteran's disability is
productive of severe impairment, and the award of a
disability evaluation in excess of 20 percent for the
veteran's residuals of a shell fragment wound to the left
upper arm, under Diagnostic Code 5303, is not warranted.  See
38 C.F.R. � 4.73, Diagnostic Code 5303 (2001).  Specifically,
the Board acknowledges that the veteran's left upper arm
disability includes very slight loss of strength, loss of
muscle bulk in the elbow flexor and mild loss of intrinsic
hand strength on the left extremity, with some paresthesias
distally in the left forearm and hand.  However, the medical
evidence does not indicate that the veteran's weakness was
deemed to be severe.  Moreover, the evidence does not show
ragged, depressed and adherent scars indicating wide damage
to the muscle group; abnormal muscle swelling and hardening
in contraction; or that the veteran has any one of the seven
additional signs of severe muscle injury, as prescribed in 38
C.F.R. � 4.56(d)(4)(iii) (1999).  As such, an increased
evaluation in excess of 20 percent under Diagnostic Code 5303
is denied. 38 C.F.R. �� 4.56(d)(4), 4.73, Diagnostic Code
5303 (2001).

The Board acknowledges that the veteran has some paresthesias
distally in the left forearm and hand, per the February 1998
VA examination report.  However, the law is clear that a
muscle injury rating will not be combined with a peripheral
nerve paralysis rating of the same body part, unless the
injury affects entirely different functions, which is not the
case here.  No significant functional limitation in terms of
loss of sensation has been found, including during the
February 1998 VA examination.  See 38 C.F.R. � 4.55(a)
(1999).  Additionally, although it could be argued that the
veteran is entitled to an increased rating under the
provisions of 38 C.F.R. � 4.55(e) or 4.55(f), the Board finds
that such sections are not applicable in this case as the
veteran's muscle group injuries are in the same anatomical
region and act on the same joint.  See 38 C.F.R. � 4.55(e)
and (f) (2001).  Furthermore, in denying the veteran's claim
for an increased evaluation, the Board has considered the
history of the veteran's disability, the current clinical
manifestations and the effect this disability may have on the
earning capacity of the veteran, the nature of the original
disability, and the functional impairment that can be
attributed to pain and weakness.  See 38 C.F.R. �� 4.40-
4.45, 4.59 (2001); DeLuca, 8 Vet. App. at 204-7.  However,
the evidence does not show additional functional loss due to
pain or weakness, which is not already contemplated in the
relevant rating criteria.  See id.

B.  Shell Fragment Wound
Scar to the Right Hand with Ulnar Nerve Sensitivity.

The veteran's right hand disability is characterized as shell
fragment wound scar to the right hand with ulnar nerve
sensitivity, evaluated as 10 percent disabling under
Diagnostic Code 7805.  As the veteran has expressed
disagreement with the initial rating assigned to this
disability, he is currently seeking an initial rating in
excess of 10 percent.

Under Diagnostic Code 7805, a disability evaluation for scars
in excess of 10 percent may be assigned in proportion with
the limitation of function of the part affected.  See 38
C.F.R. � 4.118, Diagnostic Code 7805 (2001).  Diagnostic
Codes 5214 through 5215 evaluated ankylosis and limitation of
the wrist.  See 38 C.F.R. � 4.71a, Diagnostic Codes 5214,
5215 (2001).  However, as the maximum rating assigned under
Diagnostic Code 5215 is a 10 percent rating for limitation of
motion of the wrist, this Diagnostic Code is not applicable
in this case since the veteran's current rating is 10
percent.  As well, as Diagnostic Code 5214 evaluates
ankylosis of the wrist, this Diagnostic Code is also not
applicable in this case.  The June 2000 VA examination report
described above shows the veteran has good function of both
upper extremities and was able to open a small container.  No
evidence of ankylosis of the wrist was found.

Additionally, Diagnostic Codes 5216 through 5219 evaluate a
disability characterized by unfavorable ankylosis of multiple
fingers, Diagnostic Codes 5220 through 5223 evaluate a
disability characterized by favorable ankylosis of multiple
fingers, and Diagnostic Codes 5224 through 5227 evaluated a
disability characterized by ankylosis of individual fingers.
See 38 C.F.R. � 4.71a, Diagnostic Codes 5216-5227 (2001).  As
noted above, the June 2000 VA examination report shows the
veteran has good function of both upper extremities and was
able to open a small container.  Although he had a 3
centimeter laceration over the right hand, he was able to
approximate the thumb to all fingers and had motor strength
of 4 to 4+/5 with no erythema, induration, or tenderness over
the right hand.  Thus, as the medical evidence does not show
ankylosis of the fingers, Diagnostic Codes 5216-5227 are also
not applicable in this case.

The Board acknowledges that, as the veteran's right hand
disability is characterized as inclusive of ulnar nerve
sensitivity, Diagnostic Code 8516 is also applicable in this
case.  See 38 C.F.R. � 4.124a, Diagnostic Code 8516 (2001);
Butts v. Brown, 5 Vet. App. 532 (1993) (implicitly holding
that the BVA's selection of a Diagnostic Code may not be set
aside as "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law," if relevant data is
examined and a reasonable basis exists for its selection)
(Citations omitted).  Under Diagnostic Code 8516, a 10
percent evaluation is warranted for mild incomplete paralysis
of the ulnar nerve (dominant/major extremity), and a 30
percent evaluation is warranted for moderate incomplete
paralysis.

In this regard, the March 1996 VA examination report
described above shows a 3.5 centimeter well healed
superficial scar over the lateral aspect of the right hand
with minor tenderness remaining, and reported soreness over
the right hand on the ulnar side of the hypothenar muscle.
However, the February 1998 VA examination revealed that
sensory examination was intact to light touch in all
peripheral nerve distributions including the ulnar nerve.
Additionally, no peripheral nerve disability was noted during
the June 2000 VA examination.  Given these facts, a
disability evaluation in excess of 10 percent is not
warranted for the veteran's shell fragment wound scar to the
right hand with ulnar nerve sensitivity residuals, under
Diagnostic Code 8516.  See 38 C.F.R. � 4.124a, Diagnostic
Code 8516 (2001).

Lastly, the Board acknowledges that Diagnostic Codes 7803 and
8516 evaluates the veteran's right hand scar and ulnar nerve
sensitivity, but does not evaluate any muscle injuries
secondary to the veteran's in-service shell fragment wound
injury.  In this regard, a through-and-through injury with
muscle damage shall be evaluated as no less than a moderate
injury for each group of muscles damages.  See 38 C.F.R.
� 4.56(b) (2001).  For VA rating purposes, the cardinal signs
of symptoms of muscle disability are loss of power, weakness,
lowered threshold of fatigue, fatigue-pain, impairment of
coordination and uncertainty of movement.  See 38 C.F.R.
� 4.56(c) (2001).  However, although the veteran's disability
is currently characterized as a shell fragment wound scar,
the medical evidence does not show that the veteran's right
hand disability includes muscle damage, loss of hand power,
weakness, lowered threshold of fatigue, or impairment of
coordination or uncertainty of movement.  The March 1996 VA
examination report shows the veteran dynamometric hand grip
power measurement responded to 100 force pounds in the
dominant hand.  The February 1998 VA examination report
revealed motor strength of 5/5 in all muscle groups of both
upper extremities with some atrophy of the right elbow
flexors but no detectable loss of strength.  And, the June
2000 VA examination report shows right hand motor strength of
4 to 4+/5.  Given these facts, the rating criteria for
evaluating muscle disabilities is not applicable to the
veteran's right hand disability.

III.  Conclusion.

The potential application of various provisions of Title 38
of the Code of Federal Regulations (2001) have been
considered whether or not they were raised by the veteran as
required by the Court's holding in Schafrath v. Derwinski,
1 Vet. App. 589, 593 (1991).  The Board has considered
whether an extra-schedular evaluation pursuant to the
provisions of 38 C.F.R. � 3.321(b)(1) is warranted for the
claimed increased initial ratings.

The Board notes that in various statements the veteran has
indicated that, although he was able to keep his job for the
U.S. Postal Service sorting magazines, his disabilities made
it extremely difficult for him to cope with changes on the
job and with the job itself.  As well, per a May 2002 intra-
VA e-mail, the veteran recently retired from the U.S. Postal
Service.  In the instant case, however, the evidence does not
show that the veteran's disabilities per se (including his
PTSD, or the shell fragment wound residuals of the left or
right upper extremities) have caused marked interference with
employment, or the need for frequent periods of
hospitalization; or have otherwise rendered impracticable the
application of the regular schedular standards.  The Board
acknowledges that the evidence shows the veteran's
disabilities are in fact productive of chronic interference
with daily life.  However, the evidence simply does not show
marked interference with employment (i.e. beyond that
interference contemplated in the assigned ratings).

Under the above described circumstances, the Board determines
that the criteria for assignment of an extra-schedular rating
pursuant to 38 C.F.R. � 3.321(b)(1) are not met.  See
Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).

ORDER

A disability evaluation in excess of 70 percent for PTSD is
denied.

A disability evaluation in excess of 20 percent for the
residuals of a shell fragment wound to the left upper arm is
denied.

The initial rating assigned for the veteran's shell fragment
wound scar to the right hand with ulnar nerve sensitivity is
appropriate and entitlement to an initial disability
evaluation in excess of 10 percent is denied.

	WARREN W. RICE, JR.
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


series: legacy

judge_norm: MARK D HINDIN

judge_role: Member, Board of Veterans' Appeals

disposition: granted

text:
Citation Nr: 0206001
Decision Date: 06/06/02    Archive Date: 06/13/02

DOCKET NO.  00-11 809	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC

THE ISSUES

Whether new and material evidence has been submitted to
reopen a claim of service connection for the cause of the
veteran's death.

(The issue of entitlement to dependency and indemnity
compensation pursuant to 38 C.F.R. � 1318 (West 1991 & Supp.
2001), and entitlement to service connection for the cause of
death on the merits will be the subject of later Board
decisions.)

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Neil T. Werner, Counsel

INTRODUCTION

The veteran served on active duty from June 1944 to April
1947 and from August 1948 to August 1970.  He died on
October [redacted], 1995.  The appellant is the veteran's widow.

This matter comes before the Board of Veterans' Appeals
(Board) following August and November 1999 decisions of the
Washington, DC, Regional Office (RO) of the Department of
Veterans Affairs (VA) which denied the appellant's claims for
service connection for the cause of the veteran's death and
entitlement to dependency and indemnity compensation pursuant
to 38 C.F.R. � 1318 (West 1991 & Supp. 2001) (� 1318
benefits).  In October 2001, the Board remanded the
appellant's appeal for further evidentiary development.

Initially, the Board notes that this was not the first time
that the appellant's claims were considered by VA.
Specifically, in October 1995, the RO earlier denied claims
of service connection for the cause of the veteran's death
and entitlement to � 1318 benefits.  This decision became
final when not appeal.  See 38 C.F.R. � 20.1103 (1995).
Whether previously denied claims should be reopened is a
jurisdictional matter that must be addressed before the Board
may consider the underlying claims.  See Jackson v. Principi,
265 F.3d 1366 (Fed. Cir. 2001).  Therefore, regardless of the
RO's and Board's earlier actions, the Board must initially
address the question of whether "new and material" evidence
has been presented sufficient to reopen the claims.
38 U.S.C.A. � 5108 (West 1991); 38 C.F.R. � 3.156(a) (2001).

As to the application for � 1318 benefits, as noted in the
Board's October 2001 remand, this issue continues to be
stayed pending VA's completion of directed rule making.  See
Chairmen Memorandum No. 01-01-17 (August 23, 2001).

The Board is undertaking additional development on the issue
of entitlement to service connection for the cause of death
on the merits, pursuant to authority granted by 67 Fed. Reg.
3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. �
19.9(a)(2)).  When it is completed, the Board will provide
notice of the development as required by Rule of Practice
903.  67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be
codified at 38 C.F.R. � 20.903.)  After giving the notice and
reviewing any response to the notice, the Board will prepare
a separate decision addressing these issues.

FINDINGS OF FACT

1.  By an October 1995 decision, the RO denied a claim of
service connection for the cause of the veteran's death; no
appeal ensued.

2.  Certain new evidence received since the October 1995
denial bears directly and substantially upon the issue at
hand and is so significant that it must be considered to
decide fairly the merits of the appellant's claim of service
connection for the cause of the veteran's death.

CONCLUSION OF LAW

New and material evidence sufficient to reopen a previously
denied claim of service connection for the cause of the
veteran's death has been submitted.  38 U.S.C.A. �� 1110,
1131, 5108, 7105 (West 1991 & Supp. 2001); 38 C.F.R.
� 3.156(a) (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant and her representative contend that the
veteran's service connected post operative regional ileitis,
along with his other service connected disabilities,
ultimately led to the respiratory failure that killed him.
However, the Board notes that the appellant's current claim
of service connection for the cause of the veteran's death is
not her first such claim.  As noted above, the RO denied a
claim of service connection for the cause of the veteran's
death in October 1995.  Specifically, the RO found that there
was no medical evidence that any of the veteran's service
connected disabilities contributed, was the immediate cause,
or the underlying cause of the respiratory failure, massive
left pleural effusion, and emphysema that caused the
veteran's death.

As a result of the previous denial, the appellant's current
claim of service connection for the cause of the veteran's
death may now be considered only if new and material evidence
has been submitted since the time of the prior final
decision.  38 U.S.C.A. �� 5108, 7105 (West 1991); 38 C.F.R.
�� 3.156, 20.1103 (2001); Hodge v. West, 155 F.3d 1356
(Fed.Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999) (en
banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc);
Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v.
Brown, 9 Vet. App. 273 (1996).  For the purpose of
determining whether new and material evidence has been
submitted, the credibility of the evidence is to be presumed.
Justus v. Principi, 3 Vet. App. 510, 513 (1992).

"New and material evidence" is defined by regulation as
follows:

New and material evidence means evidence
not previously submitted to agency
decision makers which bears directly and
substantially upon the specific matter
under consideration, which is neither
cumulative nor redundant, and which by
itself or in connection with evidence
previously assembled is so significant
that it must be considered in order to
fairly decide the merits of the claim.

38 C.F.R. � 3.156(a) (2001) (Emphasis added).  (The Board
notes that, while the above definition of new and material
has recently changed, these changes only apply to claims
filed after August 29, 2001, and have no impact on the
current appeal which arose from claimed filed in April and
December 1998.  See 66 Fed. Reg. 45620 to 45632 (August 29,
2001) (to be codified as amended at 38 C.F.R. � 3.156).)

Using the above guidelines, the Board has reviewed the
additional evidence associated with the claims folder since
the October 1995 denial.  The evidence obtained in connection
with the appellant's attempt to reopen her claim includes the
appellant's testimony at a personal hearing conducted by the
undersigned in May 2001.  It also includes VA records showing
complaints, diagnoses, and treatment for a numerous service
connected and non service connected disabilities for the
period immediately following his separation from military
service as well as VA and private treatment records showing
the veteran's treatment in the years immediately prior to his
death in October 1995, including the terminal medical
records.  See treatment records from Dewitt Army Hospital,
dated from June 1971 to October 1995; nursing records for in-
home care, dated from September 1995 to October 1995; and
private treatment records Inova Fairfax Hospital, dated in
September 1995.

As to the appellant's personal hearing testimony, she
testified that the veteran had frequent flare-ups of his
service connected post operative regional ileitis.  She
thereafter reported that the veteran's regional ileitis
materially contributed to the veteran death because it caused
the veteran to be unable to move his bowels or urinate during
the 14 day between his September [redacted], 1995, discharge from
Inova Fairfax Hospital and his death on October [redacted], 1995.  The
Board notes that this testimony provides the Board with more
details concerning a relationship between a service connected
disability and the veteran's death then was of record at the
time of the October 1995 decision.

Next, the Board notes that the Dewitt Army Hospital treatment
records, as well as the newly obtained terminal treatment
records, provides the Board with information regarding the
appellant's post-service medical problems that were not
previously of record.

The Board finds that the above evidence is new and material
as defined by regulation.  In other words, it bears directly
and substantially upon the issue at hand, especially as to
the onset of symptoms due to a service connected disability
that could have led to the veteran's death, (see 38 U.S.C.A
�� 1110, 1131, 1310 (West 1991 & Supp. 2001); 38 C.F.R.
�� 3.303, 3.307, 3.309, 3.312 (2001)) and is neither
duplicative nor cumulative of previously submitted evidence.
Given that the appellant's testimony, and the medical
records, provide the Board with more details concerning the
occurrence of post-service medical problems that were not of
record at the time of the prior final denial, this newly
received evidence is so significant that it must be
considered in order to decide fairly the merits of the
underlying claim.  38 C.F.R. � 3.156(a); see Hodge v. West,
at 1363 (holding that evidence providing a more complete
picture of the circumstances surrounding a veteran's
disability could be material).  In other words, her testimony
and the medical records tend to provide probative information
beyond what was known previously.  Accordingly, the Board
concludes that the appellant has submitted new and material
evidence.

ORDER

The claim of service connection for the cause of the
veteran's death is reopened; to this extent, the appeal is
granted.

	Mark D. Hindin
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


judge_norm: C P RUSSELL

condition: back

text:
Citation Nr: 0207001
Decision Date: 06/27/02    Archive Date: 07/03/02

DOCKET NO.  93-28 375	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for degenerative
disc disease of the lumbosacral spine.

REPRESENTATION

Appellant represented by:	Virginia Y. Middleton,
Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Milo H. Hawley, Counsel

INTRODUCTION

The veteran had active service from May 1968 to July 1968.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1996 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas, that found that new and material
evidence had not been presented to reopen a claim of service
connection for degenerative disc disease of the lumbosacral
spine.

A May 1999 Board decision denied the veteran's appeal with
respect to whether new and material evidence had been
presented to reopen a claim of service connection for
degenerative disc disease of the lumbosacral spine.  The
veteran appealed the Board's May 1999 decision to the United
States Court of Appeals for Veterans Claims (Court).  An
October 2001 order of the Court vacated the Board's May 1999
decision and remanded the issue for further consideration.  A
copy of the Court's order has been included in the veteran's
claims file.

FINDINGS OF FACT

1.  An October 1995 Board decision found that new and
material evidence had not been submitted to reopen a claim of
entitlement to service connection for degenerative disc
disease of the lumbosacral spine.

2.  Evidence received since the October 1995 Board decision
is new and bears directly and substantially on the matter
under consideration, and is so significant that it must be
considered in order to fairly decide the claim.

CONCLUSION OF LAW

The October 1995 Board decision is final; new and material
evidence has been received and the claim of entitlement to
service connection for degenerative disc disease of the
lumbosacral spine is reopened.  38 U.S.C.A. �� 5102, 5103,
5103A, 5107, 5108, 7103, 7104 (West 1991 & Supp. 2001);
38 C.F.R. �� 3.156, 20.1100 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The VA's duty to assist and notify claimants has been
reaffirmed and clarified.  See Veterans Claims Assistance Act
of 2000 (VCAA), 38 U.S.C.A. � 5100 et seq. (West Supp. 2001);
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2001).  The
changes to 38 C.F.R. � 3.156(a) (defining new and material
evidence), the second sentence of 38 C.F.R. � 3.159(c)
(application of the duty to assist in reopening a claim), and
38 C.F.R. � 3.159(c)(4)(iii) (medical examination or opinion
only after new and material evidence is presented) are
effective prospectively for claims filed on or after August
29, 2001.  The veteran's claim to reopen was filed prior to
August 29, 2001.  In light of the Board's decision herein to
reopen the veteran's claim, the Board concludes that the
development and notification previously accomplished are
adequate to comply with the VCAA as it may relate to the
reopening of the veteran's claim.

A December 1990 Board decision denied the veteran's claim of
entitlement to service connection for degenerative disc
disease of the lumbosacral spine on the basis that such was
not incurred in or aggravated during the veteran's active
service.  The October 1995 Board decision found that new and
material evidence had not been presented to reopen the claim
of service connection for degenerative disc disease of the
lumbosacral spine.

Service connection is granted for disability resulting from
disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110 (West 1991); 38 C.F.R. � 3.303 (2001).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d).

If a claim for service connection was previously denied, a
veteran must submit new and material evidence in order to
reopen her claim.  New and material evidence means evidence
not previously submitted to agency decision makers which
bears directly and substantially upon the specific matter
under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. � 3.156.

Under the test established by Elkins v. West,
12 Vet. App. 209 (1999) (en banc), it must first be
determined whether the veteran has presented new and material
evidence.  In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir.
1998), it was noted that while "not every piece of new
evidence is 'material'; we are concerned, however, that some
evidence may well contribute to a more complete picture of
the circumstances surrounding the origin of a veteran's
injury or disability, even where it will not eventually
convince the Board to alter its rating decision."

Following the Court's October 2001 order vacating the Board's
May 1999 decision, and remanding the issue on appeal, the
veteran submitted an April 2002 statement from a VA
physician.  This statement indicates that the veteran had
reported to the physician that she had experienced an injury
in service that occurred while she was lifting a barrel full
of trash.  She reported that she had thrown her back out and
required a brace for a period of time.  It was the
physician's opinion that such type of previous injury could
result in future discomfort and could lead to the possible
occurrence of degenerative disease as was found in the
veteran.

With consideration that there is competent medical evidence
indicating that the veteran currently has degenerative disc
disease as well as recently submitted competent medical
evidence indicating a possible relationship between current
degenerative disc disease and the veteran's reported back
discomfort during service, the Board concludes that this
additional evidence is new because it addresses whether a
relationship exists between currently manifested disability
and the reported inservice experience and may contribute to a
more complete picture of the circumstances surrounding the
origin of the veteran's currently manifested degenerative
disc disease.  Therefore, this evidence is so significant
that it must be considered in order to fairly decide the
merits of the claim.  38 C.F.R. � 3.156.

ORDER

New and material evidence having been submitted, the appeal
to reopen the claim of entitlement to service connection for
degenerative disc disease of the lumbosacral spine is
granted.  To this extent only, the appeal is granted.

	C. P. RUSSELL
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


text:
Citation Nr: 0208001
Decision Date: 07/17/02    Archive Date: 07/19/02

DOCKET NO.  98-19 813	)	DATE
	)
	)

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

THE ISSUE

Whether the veteran is entitled to service connection for
residuals of a back injury, or lumbar arthralgia.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M.C. Peltzer, Associate Counsel

INTRODUCTION

The veteran served on active duty from November 1989 to
November 1997.

The current appeal comes before the Board of Veterans'
Appeals (Board) from a September 1998 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) located in New Orleans, Louisiana.  The Board remanded
the case for further development in January 2001; the appeal
is again before the Board for further appellate
consideration.

The veteran was afforded a hearing at the RO before a hearing
officer in August 1999.  The veteran was scheduled for a
hearing before a member of the Board in October 2000 for
which he failed to report.  As such, his request for a
hearing before a member of the Board is considered as
withdrawn.  See 38 C.F.R. � 20.701(d) (2001).

FINDINGS OF FACT

1.  All the evidence requisite for an equitable disposition
of the veteran's claim has been developed and obtained, and
all due process concerns as to the development of his claim
have been addressed.

2.  The veteran was treated for lower back pain on numerous
occasions while in service and since his discharge from
service.

CONCLUSION OF LAW

Lumbar arthralgia was incurred during the veteran's active
service.  38 U.S.C.A. �� 1110, 1131, 5107 (West 1991 & Supp.
2001); 38 C.F.R. �� 3.102, 3.303 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act

VA has a duty to assist in the development of facts relating
to this claim.  See Veterans Claims Assistance Act of 2000
(VCAA).  See 38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West
Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001)
(codified at 38 C.F.R. � 3.159).  First, VA has a duty to
notify the veteran and his representative of any information
and evidence needed to substantiate and complete his claim.
38 U.S.C.A. �� 5102 and 5103 (West Supp. 2001); 66 Fed. Reg.
45,620, 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R.
� 3.159(b)).  The veteran was specifically notified of the
VCAA by letter in March 2001.  He was also specifically
notified by letter in April 1999 that while VA had requested
medical records from the private medical provider indicated
by the veteran, that the ultimate responsibility to submit
any private records needed for his claim was his own.  He was
also notified of the pertinent laws, regulations, and
evidence needed to substantiate his service connection claim
for lumbar arthralgia via the November 1998 Statement of the
Case (SOC) and the July 2001 Supplemental SOC (SSOC).

Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his service connection
claim.  38 U.S.C.A. � 5103A (West Supp. 2001); 66 Fed. Reg.
45,620, 45,630-31 (Aug. 29, 2001) (to be codified at 38
C.F.R. � 3.159(c)).  The RO has sought, obtained, and
associated with his claims file the veteran's service medical
records, VA medical reports, and requested the private
medical records from the chiropractor from whom the veteran
indicated he had received treatment.  The veteran was also
afforded the opportunity to present evidence at a personal
hearing before a hearing officer at the RO in August 1999, at
which time the veteran was notified that the chiropractor
previously noted did not respond to the RO's request for
medical records.  The transcript of the hearing has been
associated with the veteran's claims file.  38 U.S.C.A.
� 5103A(d) (West Supp. 2001); 66 Fed. Reg. 45,620, 45,631
(Aug. 29, 2001) (to be codified at 38 C.F.R. � 3.159(c)(4)).
Therefore, VA has satisfied it duty to assist the veteran
with his claim.

II. Service Connection for Lumbar Arthralgia

The veteran contends, essentially, that his lumbar arthralgia
is of service origin, and accordingly that service connection
for lumbar arthralgia is appropriate.  After a review of the
evidence, the Board finds that the evidence of record
supports his contention, and that his claim for service
connection for lumbar arthralgia must succeed.

Legal Criteria

Service connection may be granted for a disability resulting
from a disease or an injury incurred in or aggravated by
service.  38 U.S.C.A. �� 1110, 1131 (West 1991 & Supp. 2001);
38 C.F.R. � 3.303 (2001).  The determination of the merits of
the claim must be made as to 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, 55 (1990).

The Board has reviewed the entire evidence of record to
determine if there is a sufficient evidence showing, by a
combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity, that lumbar arthralgia was present during
service.  See 38 C.F.R. � 3.303(b) (2001).  If chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support a claim.
Id.

Factual Background

The report of the veteran's August 1989 service enlistment
examination shows that the veteran was clinically evaluated
with a normal spine.  His service medical records reveal that
in February 1991, the veteran was assessed with muscle strain
of the lower back.  The February 1991 service medical record
reflects that the veteran had indicated he had been lifting
heavy objects  but denied any type of trauma to his back, and
that his back pain had started two to three weeks previously.
The February 1991 service medical record reflects that the
veteran did not have any muscle spasms and that no edema was
noted.

An early March 1991 service medical record reflects that the
veteran again sought treatment for low back pain and
contained X-ray findings of slight scoliosis of the spine.  A
late March 1991 service medical record reflects an assessment
of low back pain.  The late March 1991 service medical
records also reflects that the veteran was prescribed
medication for muscle spasms and lower back pain.  April 1991
service medical records reflect that the veteran was again
prescribed medication for muscle spasms and lower back pain.
An April 23, 1991, service medical record reflects that the
veteran's low back strain was resolved.

A May 1991 service consultation report reflects that the
veteran had a three month history of lower back pain which
was localized and that his range of motion was 90 degrees
forward flexion, 30 degrees extension, and 30 degrees for
both left and right rotation of the lower back.  The May 1991
consultation report reflects that the veteran was assigned to
light duty for two weeks and given a 25-pound lifting
restriction.  Another May 1991 service consultation report
from the physical therapy department reflects that the
veteran was seen in the clinic for treatment of mechanical
low back pain.  A May 1991 service radiological report
reflects an impression of a normal lumbar spine.  The service
medical record reflects that the X-rays were requested due to
complaints of chronic low back pain and a finding of lumbar
scoliosis.

A September 1994 Report of Medical History reflects that the
veteran indicated that he did not have or ever have recurrent
back pain.  A September 1994 Report of Medical Examination
reflects that the veteran was clinically evaluated with a
normal spine.

A January 1995 service medical record reflects that the
veteran sought treatment for chronic low back pain and that
he stated he had a previous history of similar low back pain.
The January 1995 service medical record reflects an
assessment of mechanical low back pain.  A February 2, 1995,
service medical record again reflects an assessment of low
back pain, decreased flexion due to pain, and no
abnormalities of the lumbar spine noted via X-ray findings.
A February 6, 1995, service medical record reflects an
assessment of chronic low back pain by history, contradicted
by physical findings.

A June 1997 outpatient record reflects and assessment of
mechanical low back pain and that the veteran indicated his
back "hurts on [and] off".  The outpatient record also
reflects that the veteran indicated he hurt his back in 1991.
His October 1997 Report of Medical History for separation
from service reflects that the veteran indicated that he did
not have or ever have recurrent back pain while the October
1997 Report of Medical Findings for separation from service
shows that his spine was clinically evaluated as normal.

A June 1998 VA general medical examination report contains an
impression of lumbar arthralgia.  The examination report also
reflects that the veteran's range of motion was 90 degrees
for forward flexion, 20 degrees for extension, 35 degrees for
left and right flexion, and 30 degrees for both left and
right rotation.  A June 1998 VA radiology report reflects an
impression of a normal lumbar spine.

The veteran was afforded a hearing before a hearing officer
at the RO in August 1999.  The hearing transcript reflects
that the veteran indicated he had slipped and fell down a
ladder well while moving boxes in the ship galley while in
the Navy and that he had problems with his back the entire 8
years he was in service.  The hearing transcript also
reflects that the veteran indicated he has had the same
problems with his back since leaving service and that he
treats his back with an ice pack and by monitoring his
activities.

The veteran was scheduled for a June 2001 VA spine
examination for which he failed to report.  When a claimant
fails to report for an examination scheduled in conjunction
with an original compensation claim without good cause, the
claim shall be rated based on the evidence of record.
38 C.F.R. � 3.655(a)(b) (2001).  Therefore, since the
evidence reveals that the veteran failed to report for a VA
examination scheduled in conjunction with his original
compensation and that he did not submit a good cause for
failing to report, the Board must decide his claim based on
the evidence of record.

Legal Analysis

To begin, the Board focuses on the fact that the veteran's
service medical records reflect that in September 1994 and in
October 1997 the veteran himself indicated that he did not
have recurrent back pain on Reports of Medical History.
These reports directly contrast the fact that a review of the
evidence of record reveals that the veteran sought medical
treatment on numerous occasions for lower back pain while he
was in service.  The Board finds that the specific service
medical records which reflect treatment for lower back pain
to more probative to the issue at hand than the two more
generalized reports in which the veteran merely checked
"yes", "no", or "don't know" on a list of medical
problems which included the issue of recurrent back pain.
See, e.g., Timberlake v. Gober, 14 Vet. App. 122, 129 (2000).
Additionally, the Board finds that veteran's lay testimony
describing his continuity in symptomatology to be relevant
and material to the issue at hand.  See Layno v. Brown, 6
Vet. App. 465, 469-470 (1994).

The evidence of record reveals that the veteran still sought
treatment for lower back pain after his discharge from
service.  A June 1998 VA examination report, a mere seven
months after his discharge from service and over seven years
since he first sought treatment for lower back pain, reveals
an impression of lumbar arthralgia.  Arthralgia is defined as
pain of the joint, or in this case, pain of the joints of the
lumbar spine.  See Dorland's Illustrated Medical Dictionary
(27th ed. 1988).  As previously indicated, the veteran's
service medical records reflect that he was treated on
numerous occasions for low back pain while he was in service.
Therefore, there is sufficient evidence of observations and
manifestations of lower back pain, both in and after service,
to establish continuity of symptomatology.  Accordingly, the
Board finds that the medical and lay testimony of record is
sufficient to warrant service connection for lumbar
arthralgia.  See 38 C.F.R. � 3.303(b) (2001); Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).

ORDER

Service connection for residuals of a back injury, or lumbar
arthralgia, is granted.

	C.P. RUSSELL
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


judge_norm: U R POWELL

disposition: denied

text:
Citation Nr: 0209001
Decision Date: 08/02/02    Archive Date: 08/12/02

DOCKET NO.  98-16 949	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased rating for bilateral pes planus,
currently evaluated as 50 percent disabling, including on an
extraschedular basis.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

S. J. Janec, Counsel

INTRODUCTION

The veteran had active military service from December 1942 to
August 1943.

This matter comes before the Board of Veterans' Appeals
(Board) from a June 1998 rating decision of the St. Louis,
Missouri, Regional Office (RO) of the Department of Veterans
Affairs (VA) that denied a rating in excess of 50 percent for
bilateral pes planus.

In April 1999, the Board remanded the case to the RO for
further development, including consideration of an
extraschedular rating for the veteran's disability.  The case
has been returned to the Board for appellate review.

The Board notes that in his September 1998 substantive
appeal, the veteran asserted that his pes planus made it
"impossible to work."  The Board has construed this as a
claim for a total disability rating based on individual
unemployability due to service-connected disability.  This
issue has not been addressed by the RO and has not been
certified for appellate review.  It is referred to the RO for
appropriate development.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained
and the duties to inform and assist have been met.

2.  The veteran is in receipt of the highest schedular
rating assignable for the service-connected bilateral
pes planus.

3.  The veteran's bilateral pes planus does not present such
an exceptional or unusual disability picture, to include
frequent hospitalization or marked interference with
employment, beyond that contemplated by the rating schedule.

CONCLUSION OF LAW

The criteria for an evaluation in excess of 50 percent for
bilateral pes planus, including on an extraschedular basis,
have not been met.  38 U.S.C.A. �� 1155, 5103A, 5107 (West
1991 & Supp. 2001); 38 C.F.R. �� 3.321(a), (b)(1), 4.1,
4.71a, Diagnostic Code 5276 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board has given consideration to the
provisions of the Veterans Claims Assistance Act of 2000
(VCAA) , Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified
at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2001)).  This law eliminated the former statutory
requirement that claims be well grounded.  Cf. 38 U.S.C.A.
� 5107(a) (West 1991).  The VCAA includes an enhanced duty on
the part of VA to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
The VCAA also redefines the obligations of VA with respect to
its statutory duty to assist claimants in the development of
their claims.  Regulations implementing the VCAA have been
enacted.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be
codified as amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
and 3.326(a)).

The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment but not yet final as of that date.  Except for
provisions pertaining to claims to reopen based on the
submission of new and material evidence, which are not
applicable in the instant case, the implementing regulations
are also effective November 9, 2000.  In this case, the

veteran's claim is not final and remains pending.  The
provisions of the VCAA and the implementing regulations are,
accordingly, applicable.  See Holliday v. Principi, 14 Vet.
App. 282-83 (2001) (the Board must make a determination as to
the applicability of the various provisions of the VCAA to a
particular claim).  Furthermore, the Board is of the opinion
that the new legislative changes are more favorable to the
veteran.  Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991).

Notice

The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim.  As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant.

The veteran was notified of the relevant law and regulations,
and of the types of evidence that could be submitted by him
in support of his claim, by correspondence from the RO, by
the June 1998 rating decision, the September 1998 statement
of the case (SOC), the Board's April 1999 remand, the March
2000 and March 2002 supplemental statements of the case
(SSOC's), and by letter communications with the veteran with
correspondence copies to his representative.  In particular,
in an April 1999 letter, the RO informed the veteran that he
should submit any medical evidence or employment records that
would support his claim for an extraschedular evaluation, in
accordance with the directive of the Board's April 1999
remand.  The veteran did not respond to this letter.
Additionally, it is noted that 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 communications.

Duty to assist

In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim.  The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim.  An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim.

The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it.  The veteran has been afforded VA
examinations, the results of which are reported below.  There
is no indication that there exists any evidence which has a
bearing on this case which has not been obtained.  The
veteran and his representative have been accorded ample
opportunity to present evidence and argument in support of
his appeal.

VA issued regulations to implement the VCAA in August 2001.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a)).
The amendments were effective November 9, 2000, except for
the amendment to 38 C.F.R. � 3.156(a), the second sentence of
38 C.F.R. � 3.159(c), and 38 C.F.R. � 3.159(c)(4)(iii), which
are effective August 29, 2001.  VA has stated that the
provisions of this rule merely implement the VCAA and do not
provide any rights other than those provided in the VCAA.  66
Fed. Reg. 45,629.  Accordingly, in general where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions likewise are satisfied.

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 (West 1991); 38 C.F.R. Part 4 (2001).
Separate diagnostic codes identify the various disabilities.
The 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).

Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the
regulations do not give past medical reports precedence over
current findings, the Board is to consider the veteran's
medical history in determining the applicability of a higher
rating for the entire period in which the appeal has been
pending.  Id; Powell v. West, 13 Vet. App. 31, 35 (1999).
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
for the higher rating.  38 C.F.R. � 4.7 (2001).

Bilateral pes planus is evaluated pursuant to criteria set
forth at 38 C.F.R. � 4.71a, Diagnostic Code 5276.  Bilateral
pes planus with severe manifestations, such as objective
evidence of marked deformity (pronation, abduction, etc.),
accentuated pain on manipulation and use, indication of
swelling on use, and characteristic callosities will be
assigned a 30 percent rating.  Pronounced bilateral pes
planus, with marked pronation, extreme tenderness of the
plantar surfaces of the feet, marked inward displacement, and
severe spasm of the tendo achillis on manipulation, none of
which are improved by orthopedic shoes or appliances, is
assigned a 50 percent schedular rating.  This is the maximum
rating available under Diagnostic Code 5276.  A higher rating
is not available under any other of the Diagnostic Codes that
pertain to the feet.  The veteran's bilateral pes planus is
currently rated 50 percent disabling.

Upon review of the evidence, the Board finds that the
preponderance of the evidence is additionally against an
increased evaluation for this disability on an extraschedular
basis.  The medical evidence, particularly the report from
the September 1998 VA examination, reveals that the veteran
has severe problems with his feet, with symptoms consistent
with those which warrant a 50 percent evaluation under
Diagnostic Code 5276, such as marked pronation of the ankles,
tenderness over the plantar surfaces of the feet, marked
inward displacement, spasms on manipulation, and swelling on
use.  His condition has not been improved by the use of
orthopedic shoes or inserts, and he has continued to complain
of pain.  X-rays of the feet, dated in March 1998, revealed
moderately severe changes of pes planus, without evidence of
fracture, dislocation, or bony lesion.  The veteran has
complained of tingling in his feet.  However, in a May 1999
neurology consultation, it was reported that nerve conduction
studies revealed evidence of a generalized sensorimotor
neuropathy with mixed axonal and demyelinating features.
There was no evidence of tarsal tunnel syndrome or focal
peroneal neuropathy.  The examiner commented that the
findings were non-specific and typically are seen in relation
to diabetes mellitus, renal failure following toxic
exposures, monoclonal gammopathies, connective tissue
disease, or hereditary disorders.  It was not attributed to
the pes planus.

The Board finds that the preponderance of the evidence is
against a finding that this case presents such an exceptional
or unusual disability picture as to render impractical the
application of the regular schedular standards.  The evidence
does not show that the veteran has had frequent periods of
hospitalization related to his pes planus.  Regarding marked
interference with employment, the veteran's disability
manifests itself in ways that are contemplated in the rating
schedule.  There has been no demonstration of unusual
manifestations regarding the veteran's disability.

The record reflects that the veteran is not currently
employed, and that he stopped working in 1984.  While the
veteran's bilateral pes planus may have had some consequences
with regard to his employment, his disability does not have
unusual manifestations and is not shown to affect employment
in ways that are not already taken into account under the
provisions of the rating schedule.  It is important to note
that, under the provisions of  38 C.F.R. � 4.1, the
percentage ratings contemplated in the rating schedule
represent as far as can practicably be determined the average
impairment in earning capacity resulting from such diseases
and injuries and their residual conditions in civil
occupations.  The regulation further provides that, in
general, the degrees of disability specified are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the several grades of disability.  38 C.F.R. � 4.1.  The
veteran has not submitted any employment records that
demonstrate marked interference with employment due to the
pes planus.  Accordingly, in the absence of medical evidence
showing frequent hospitalizations or marked interference with
employability (i.e. interference with employability not
contemplated in the rating criteria), an extraschedular
rating under the provisions of 38 C.F.R. � 3.321 is not
warranted in this case.

As the Board concludes that the preponderance of the evidence
is against the veteran's claim for an increased rating,
including on an extraschedular basis, the benefit-of-the-
doubt doctrine does not apply.

ORDER

Entitlement to an evaluation in excess of 50 percent for
bilateral pes planus, including on an extraschedular basis,
is denied.

	U. R. POWELL
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.