judge_norm: SHANE A DURKIN

condition: back

condition: liver

text:
Citation Nr: 0215000
Decision Date: 10/24/02    Archive Date: 11/01/02

DOCKET NO.  94-37 154	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for cervical spine
disability.

2. Entitlement to service connection for cholelithiasis.

3. Entitlement to service connection for cirrhosis of the
liver.

(The issue of entitlement to service connection for
gastritis/hiatal hernia will be the subject of a later
decision)

REPRESENTATION

Appellant represented by:	New Jersey Department of
Military and Veterans' Affairs

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

J. M. Daley, Counsel

INTRODUCTION

The veteran had active service from February 1964 to February
1968.

This matter is before the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Newark, New Jersey,
Department of Veterans Affairs (VA) Regional Office (RO).
The case now returns for consideration following Board remand
in August 1996.

The Board is undertaking additional development on the issue
of entitlement to service connection for gastritis/hiatal
hernia 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
any notice of the development 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 that issue.

FINDINGS OF FACT

1.  All information and evidence necessary for an equitable
disposition of the issues decided herein have been obtained.

2.  A cervical spine disability was not present in service,
arthritis of the cervical spine was not manifested within one
year of service discharge, and current cervical spine
disability is not etiologically related to the veteran's
period of active service.

3.  Cirrhosis of the liver was not present within one year of
the veteran's discharge from service, and any currently
present cirrhosis of the liver is not etiologically related
to the veteran's period of active service or to service-
connected disability or treatment thereof.

4.  Cholelithiasis was not present in service and current
cholelithiasis is not etiologically related to the veteran's
period of active service or to service-connected disability
or treatment thereof.

CONCLUSIONS OF LAW

1.  Cervical spine disability was not incurred in or
aggravated by active service and arthritis of the cervical
spine may not be presumed to have been incurred or aggravated
therein.  38 U.S.C.A. �� 1101, 1110, 1112 (West 1991 & Supp.
2002); 38 C.F.R. �� 3.303, 3.307, 3.309 (2002).

2.  Cirrhosis of the liver was not incurred in or aggravated
by active service, its incurrence or aggravation during
active duty may not be presumed, and it is not proximately
due to or the result of service-connected disability.
38 U.S.C.A. �� 1101, 1110, 1112 (West 1991 & Supp. 2002); 38
C.F.R. �� 3.303, 3.307, 3.309, 3.310(a) (2002).

3.  Cholelithiasis was not incurred in or aggravated by
active service and is not proximately due to or the result of
service-connected disability.  38 U.S.C.A. � 1110 (West
Supp. 2002); 38 C.F.R. �� 3.303, 3.310(a) (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

During the pendency of the veteran's appeal, the VCAA, Pub.
L. No. 106-475, 114 Stat. 2096 (2000), was signed into law.
In addition, regulations implementing the VCAA (codified at
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2001)), were published at 66 Fed. Reg. 45,620,
45,630-32 (August 29, 2001) (to be codified at
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326).  For the
purposes of this decision, the Board will assume that the
VCAA and the implementing regulations, to include the notice
and duty to assist provisions, are applicable to the claims
decided herein.

The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim.  They also require 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 VCAA and the implementing regulations were in effect when
the claims decided herein were most recently considered by
the RO.  The record reflects that through the statement of
the case and supplements thereto, the veteran has been
informed of the requirements for the benefit sought on
appeal, the evidence considered by the RO, and the reasons
for its determinations.  In a letter dated in May 2002, the
veteran was informed that he should submit medical evidence
showing a causal connection between currently diagnosed neck
disability and service and medical evidence showing a
relationship between currently diagnosed cholelithiasis and
cirrhosis of the liver and service-connected disabilities or
treatment therefor.  In this letter the RO also informed the
veteran of the assistance that it would provide in obtaining
evidence and information in support of the claim and of the
information needed from him to enable the RO to obtain
evidence and information in support of his claim.  Therefore,
the Board is satisfied that the RO has complied with the
notification requirements of the VCAA and the implementing
regulations.  See Quartuccio v. Principi, 16 Vet. App. 183
(2002).

Moreover, the veteran has been afforded appropriate VA
examinations, VA and private treatment records have been
associated with the record, and the development requested in
the Board's August 1996 remand has been satisfactorily
completed.  Stegall v. West, 11 Vet. App. 268 (1998).
Neither the veteran nor his representative has identified any
additional evidence or information which could be obtained to
substantiate any of the claims.  The Board is also unaware of
any such outstanding evidence or information.  Therefore, the
Board is also satisfied that the RO has complied with the
duty to assist requirements of the VCAA and the implementing
regulations.

Legal Criteria

In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein.  38 U.S.C.A. � 1110; 38 C.F.R.
� 3.303.

For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as opposed to merely
isolated findings or a diagnosis including the word
"chronic."  When the fact of chronicity in service (or
during any applicable presumptive period) is not adequately
supported, then a showing of continuity after discharge is
required to support the claim.  38 C.F.R. � 3.303(b).

Where a veteran served for at least 90 days during a period
of war or after December 31, 1946, and arthritis or cirrhosis
of the liver is manifest to a degree of 10 percent within one
year from the date of termination of such service, such
disease shall be presumed to have been incurred or aggravated
in service, even though there is no evidence of such disease
during the period of service.  38 U.S.C.A. �� 1101, 1112;
38 C.F.R. �� 3.307, 3.309.

Service connection may also be granted for a 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).

Service connection is also warranted for disability
proximately due to or the result of a service-connected
disorder, to include where aggravation of a nonservice-
connected disorder is proximately due to or the result of a
service-connected disability.  In the case of aggravation,
such secondary disorder is compensable only to the degree of
disability over and above the degree of disability which
would exist without such aggravation.  38 C.F.R. � 3.310(a);
Allen v. Brown, 7 Vet. App. 439, 448, 449 (1995).

Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary.  The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary.  When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant.  38 U.S.C.A. � 5107 (West Supp. 2002); see
also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To
deny a claim on its merits, the evidence must preponderate
against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background

The veteran is service-connected for post-traumatic stress
disorder (PTSD) (100 percent disabling), gastroesophageal
reflux disease with esophagitis and cardiospasm (10 percent
disabling), a loss of erectile power (noncompensably
disabling), and residuals of a shell fragment wound in the
neck (noncompensably disabling).  VA records document that
the veteran has been prescribed medications to include
Trazadone, Sertraline, Alprazolam, Chlordiazopoxide,
Buspirom, Robaxin, Salasalate, Librium, BuSpar, Zantac and
Desipramine for his PTSD and other service-connected
disabilities.

Service medical records reflect that the veteran incurred
superficial fragmentation wounds to the head in March 1966
while stationed in the Republic of Vietnam.  The report of
examination at release from active duty in January 1968 notes
the veteran's head, face, neck and scalp, spine, other
musculoskeletal areas and liver were found to be normal.

The veteran was examined by VA in November 1981.  The VA
examiner noted the veteran's history of an in-service shell
fragment wound to the neck.  Examination revealed pliable,
nonadherent, nontender and nondisfiguring scars above the
right clavicle and noted no actual medical pathology.  The
veteran did not make any complaints relevant to his neck at
that time.  He was noted to have hemorrhoids without
identified liver problems.

A March 1989 VA hospitalization report notes that the veteran
was having right shoulder difficulties after an injury
sustained in his last few years of police work.  A VA medical
record dated in May 1989 indicates that the veteran had been
admitted in April 1989 for chronic cervical and bilateral
shoulder pain management.  He gave a long history of
bilateral upper extremity and cervical pain.  X-rays of the
shoulder were negative.  X-rays of the spine showed mild C5
to C6 disc derangement, possibly associated with
myofibrositis.  The diagnoses were chronic cervical pain
syndrome, cervical myofibrositis and discogenic degenerative
cervical spine disease.

The veteran presented for a VA examination in February 1990.
He complained of pain in his neck, as well as right arm
numbness and weakness.  He gave a history of being hit in the
right shoulder as a result of an altercation during his
employment as a police officer.  Examination revealed a
nonadherent scar above the right clavicle, described as
difficult to distinguish and without tissue loss.

A June 1990 VA outpatient record shows the veteran's
complaints of right arm, shoulder and back pain after
involvement in an accident.  His neck was mildly painful with
motion.  The diagnosis was history of motor vehicle accident.
Another June 1990 record notes a history of neck and shoulder
pain since the 1960s.

In October 1990, the veteran appeared for a VA gastro-
intestinal examination.  Abdominal imaging revealed multiple
cholelithiasis and a generalized increase in the echogenicity
of the liver suggestive of liver cirrhosis.

A report of VA hospitalization from December 1990 to February
1991 shows the veteran to have had multiple cholelithiasis,
untreated.  A March 1991 General Medical Clinic note
recommends testing for liver cirrhosis and cholelithiasis.
An April 1991 hospitalization report includes the diagnosis
of cholelithiasis.  Laboratory results were stated to show no
abnormalities.  The options for cholecystectomy or a
lithotripsy procedure were discussed with the veteran who
indicated he would have private treatment to accomplish such
procedure.

A July 1991 report of VA hospitalization shows admission for
an exacerbation of chronic cervical and lumbar pain.

In December 1993, the veteran testified at a personal
hearing.  He reported having been injured by shrapnel in his
neck and then having twisted his neck approximately nine days
after the shrapnel wound.  He reported symptoms such as right
hand numbness and weakness in the right upper extremity.  The
veteran discussed his post-service employment injury to the
right shoulder and neck area.  He stated that he would not
have had to leave the police department for that injury.
Relevant to the gastro-intestinal system the veteran provided
a list of medications he was taking for service-connected
disability and related that VA physicians had told him his
medications could cause gastric complaints.

In December 1998 a VA examiner reviewed the veteran's claims
files.  The examiner noted the veteran's history of in-
service injury, reportedly resulting in severe injury to the
cervical vertebrae and discs, as later confirmed by testing
in the 1980s and 1990s.  The examiner also noted the various
medications prescribed for service-connected disabilities and
noted the veteran's complaints of gastro-intestinal problems.
The examiner cited to the suggestion of cirrhosis of the
liver but noted no biopsy report in the claims file showing
the veteran to have such.  The examiner noted multiple
laparoscopic cholecystectomy scars but that abdominal
examination was benign.  The impression was status post
shrapnel wound injury of the cervical area with resulting
cervical disc disease of the C5 to C6 vertebral region and
opined such was a result of the in-service shrapnel wound
injury.  The examiner also concluded that the medications the
veteran is taking do not cause cirrhosis of the liver and are
not the cause of the veteran's cholelithiasis.

In August 1999 a VA physician reviewed the veteran's claims
files and the prior examination report.  The examiner noted
the veteran's in-service shrapnel wounds to the neck as well
as an injury to the neck and shoulder in 1985 while a police
officer.  The VA examiner assumed the veteran had passed his
initial physical examination to enter the police force in
1968 and that the veteran had apparently been able to perform
his duties for 20 years while a police officer.  The VA
examiner also noted the absence of any evidence of neck
impairment at discharge from service.  The examiner stated
that at worst the veteran's in-service injury was an acute
traumatic strain that resolved.  The examiner concluded that
the in-service shrapnel injury did not result in the
veteran's current neck injury, but rather, that the
employment injury as a police officer was the most likely
etiology for the current neck problems.

Analysis

With respect to the veteran's cervical spine disability, the
Board finds that any in-service injury was acute and
transitory, without chronic residuals.  Service records
themselves document only superficial shell fragment wounds
without involvement of the bones, muscle or nerves in the
cervical area.  There is no other service medical evidence of
cervical injury and the report of examination at discharge
was specifically negative for disability of the neck, spine
or other musculoskeletal or neurologic system.  Nor is there
any competent medical evidence suggesting the presence of
arthritis of the cervical spine within the initial post-
service year.

The Board also notes that, as pointed out by the August 1999
VA examiner, the veteran apparently passed a physical
entrance examination for full-time police duty and performed
such job for 20 years.  The record clearly documents
incurrence of a neck/shoulder injury in connection with that
employment, many years after discharge.  Consistent with the
negative discharge examination and the lack of any documented
complaints or treatment for neck problems for years after
service, the August 1999 VA examiner opined that current
cervical spine disability is related to the post-service,
employment-related injury and not to any shrapnel wound or
other incident of the veteran's active service period.

Although the claims file contains the December 1998 VA
examiner's opinion that current cervical spine disability is
related to service, the Board finds such opinion to be of
less probative value than the August 1999 VA medical opinion.
Despite citing to a review of the claims file, the December
1998 examiner did not include a discussion of the impact of
the veteran's post-service injury on the development of
cervical spine problems.  Moreover, the December 1998
examiner appears to have relied on the veteran's history of
an in-service disc injury and continuing cervical
symptomatology thereafter.  Such history is contradicted by
service medical records and the post-service medical evidence
that are negative for neck problems, to include the initial
post-service VA examination report.  The August 1999 examiner
included consideration of both the veteran's in-service and
post-service history and thus, that opinion is based on a
more complete and accurate history.  Such opinion clearly
dissociates current cervical spine disability from the
veteran's period of service.  As the record does not reflect
that the veteran possesses a recognized degree of medical
knowledge, his own opinions on medical diagnoses or causation
are not competent.  Espiritu v. Derwinski, 2 Vet. App. 492
(1992).  A review of the claims files reveals no other
medical evidence relating current cervical spine disability
to service.

With respect to the claims of entitlement to service
connection for cholelithiasis and cirrhosis, the Board again
notes that the veteran himself is not competent to provide
the requisite nexus opinion relevant to a connection to
service or service-connected disability.  Although testing in
the record was suggestive of cirrhosis of the liver, such
diagnosis has not been confirmed.  In any event, there is no
competent evidence of cirrhosis or cholelithiasis in service
or until many years thereafter, nor is there medical evidence
linking either disorder to service or service-connected
disability.  Moreover, the December 1998 VA examiner
specifically considered the medications the veteran was
taking for service-connected disabilities and considered the
question as to whether any relationship exists between either
cirrhosis of the liver or cholelithiasis and the medications
the veteran is taking.  That examiner ruled out such causal
connection noting that the medications prescribed for the
veteran's disabilities were not the type that would cause
cirrhosis and did not cause cholelithiasis.  There is no
competent opinion in refutation of that conclusion.  As such,
service connection is not warranted for cirrhosis or
cholelithiasis.

The Board has considered the applicability of the benefit of
the doubt doctrine.  However, as the preponderance of the
evidence is against the veteran's claims, that doctrine is
not applicable in the instant appeal.  38 U.S.C.A. � 5107.

(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to service connection for cervical spine
disability is denied.

Entitlement to service connection for cholelithiasis is
denied.

Entitlement to service connection for cirrhosis of the liver
is denied.

	Shane A. Durkin
	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: H N SCHWARTZ

judge_role: Member, Board of Veterans' Appeals

disposition: granted

text:
Citation Nr: 0216000
Decision Date: 11/07/02    Archive Date: 11/14/02

DOCKET NO.  99-11 006	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence sufficient to reopen a
claim for service connection for post-traumatic stress
disorder (PTSD) has been submitted.

[The issue of entitlement to service connection for PTSD will
be the subject of a later decision.]

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

John J. Crowley, Counsel

INTRODUCTION

The veteran served on active duty from October 1968 to
December 1971 with periods of absences without leave (AWOL).

This matter is currently before the Board of Veterans'
Appeals (Board) on appeal from a March 1998 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO).

For reasons that will be made clear below, the Board is
undertaking additional evidentiary development on the issue
of entitlement to service connection for PTSD on a de novo
basis.  When the development is completed, that claim will be
the subject of a separate Board decision.

FINDINGS OF FACT

1.  Service connection for PTSD was denied by the RO in July
1993; the veteran did not timely file an appeal of this
determination.

2.  Evidence received since the July 1993 decision is not
either cumulative or redundant and, by itself or in
connection with the evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claim of entitlement to service
connection for PTSD.

CONCLUSION OF LAW

The evidence received since the July 1993 decision of the RO
that denied service connection for PTSD is new and material
and that claim is reopened.  38 U.S.C.A. �� 5103, 5103A,
5107, 5108, and 7105 (West 1991 & Supp. 2002); 38 C.F.R. �
3.156 (a) (2001) and 66 Fed. Reg. 45,620 45,630-32 (Aug. 29,
2001) (to be codified at 38 C.F.R. � 3.159).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection for PTSD was denied by the RO in a July
1993 rating decision.  The veteran was notified of that
determination and did not appeal it within one year after
notification.  Accordingly, the decision became final.
38 U.S.C.A. � 7105(c).  The veteran petition to reopen the
denied claim in September 1997.  On VA examination in January
1998, PTSD was diagnosed.  The veteran indicated that he was
sexually assaulted during service.  It was also indicated by
the examiner that "the story does have a consistency to it .
. ."  The veteran has also provided testimony in November
1999.

Under 38 U.S.C.A. � 5108, VA must reopen a previously and
finally disallowed claim when "new and material" evidence
is presented or secured with respect to that claim.  See
38 U.S.C.A. � 7105(c) (West 1991) and Hodge v. West, 155 F.3d
1356, 1363 (Fed. Cir. 1998).  38 C.F.R. � 3.156(a) (2001)
provides 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.

New evidence means more than evidence which has not been
previously physically of record.  To be "new" additional
evidence must be more than merely cumulative.  Colvin v.
Derwinski, 1 Vet. App. 171, 174 (1991).  For the purpose of
establishing whether new and material evidence has been
submitted, the credibility of the evidence, although not its
weight, is to presumed.  Justus v. Principi, 3 Vet. App. 510,
513 (1992).

The veteran has never contended that he engaged in combat
with the enemy as defined within 38 U.S.C.A. � 1154(b).  As a
result, as a matter of law, a medical provider cannot provide
supporting evidence that the claimed in-service event
actually occurred based on a post-service medical
examination.  Moreau v. Brown, 9 Vet. App. 389, 395-6 (1996).
In addition, the veteran's own testimony will not be
sufficient.  Id.  Other credible supporting evidence from any
source must be provided.  The special provisions of VA
Adjudication Procedure Manual M21-1 (M21-1), Part III,
regarding personal assault notes that: "Personal assault is
an event of human design that threatens or inflicts harm.
Examples of this are rape, physical assault, domestic
battering, robbery, mugging, and stalking." M21-1, Part III,
5.14c.  M21-1 identifies alternative sources for developing
evidence of personal assault, including private medical
records, civilian police reports, reports from crisis
intervention centers, testimonial statements from confidants
such as family members, roommates, fellow service members, or
clergy, and personal diaries or journals.  M21-1, Part III,
5.14c(4)(a).  When there is no indication in the military
record that a personal assault occurred, alternative
evidence, such as behavior changes that occurred at the time
of the incident, might still establish that an in-service
stressor incident occurred.  Examples of behavior changes
that might indicate a stressor include: visits to a medical
or counseling clinic or dispensary without a specific
diagnosis or specific ailment; sudden requests that the
veteran's military occupational series or duty assignment be
changed without other justification; lay statements
indicating increased use or abuse of leave without apparent
reason; changes in performance or performance evaluations;
lay statements describing episodes of depression, panic
attacks or anxiety with no identifiable reasons for the
episodes; increased or decreased use of prescription
medication; evidence of substance abuse; obsessive behavior
such as overeating or undereating; pregnancy tests around the
time of the incident (clearly not at issue in the veteran's
case); increased interest in tests for HIV or sexually
transmitted diseases; unexplained economic or social behavior
changes; treatment for physical injuries around the time of
the claimed trauma but not reported as a result of the
trauma; breakup of a primary relationship.  M21-1, Part III,
5.14c(7)(a)-(o).

The sole issue before the Board at this time is whether new
and material evidence has been submitted.  The standard for
reopening a claim is low.  Based on the veteran's testimony
and the VA examination of January 1998, the Board finds that
the evidence received since the July 1993 decision is not
either cumulative or redundant and is so significant that it
must be considered in order to fairly decide the merits of
the claim.  Thus, the claim is reopened.

In light of the Veterans Claims Assistance Act of 2000 (VCAA)
(codified at 38 U.S.C.A. �� 5102, 5103, 5103A, 5107(West
Supp. 2002), the Board will undertake additional development
in an effort to confirm the veteran's alleged stressors in
service.  The veteran is given notice that (in light of the
facts of this case) without such confirmation, the claim of
service connection may not be granted.

ORDER

New and material evidence having been submitted, the claim of
entitlement to service connection for PTSD is reopened.  To
that extent only, the appeal is granted.

	H. N. SCHWARTZ
	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: J SHERMAN ROBERTS

disposition: denied

condition: arthritis

text:
Citation Nr: 0217000
Decision Date: 11/25/02    Archive Date: 12/04/02

DOCKET NO.  00-23 086	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for a cold weather
injury to bilateral lower extremities, including bilateral
osteoarthritis of the knees.

2.  Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
right ankle disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Daniel R. McGarry, Counsel

INTRODUCTION

The veteran had active duty service from June 1948 to April
1952.  He had more than two years of foreign or sea service,
and he received the Korean Service Medal and Combat
Infantryman Badge.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from an August 2000 rating decision in
part of which the regional office (RO) denied entitlement to
service connection for right and left lower extremity
disorders, including osteoarthritis of the knees, and
determined the veteran had not submitted new and material
evidence to reopen a claim of entitlement to service
connection for a right ankle disorder.

At the time of his hearing at the RO in January 2001, the
veteran withdrew his appeal of the RO's denial of
entitlement to service connection for a gastrointestinal
disorder, diabetes, hypertension, and depression.

FINDINGS OF FACT

1.  All relevant available evidence necessary for a fair and
informed decision concerning the veteran's claims now on
appeal has been obtained by the Department of Veterans
Affairs (VA).

2.  The veteran has been notified of the evidence that is
necessary to substantiate his claim, has not submitted
additional evidence, and has not identified any additional
evidence to support his claim.

3.  The veteran does not have cold injury residuals,
including osteoarthritis of the knees, of the bilateral
lower extremities.

4.  In a September 1978 rating decision which the veteran
did not appeal, the RO denied the veteran's claim of
entitlement to service connection for a right ankle
disorder.

5.  Since the September 1978 rating decision, the veteran
has not submitted relevant, noncumulative evidence which
indicates that he has current disability from a right ankle
disorder that he incurred during his active military
service.

CONCLUSIONS OF LAW

1.  VA's duty to assist in the development of the veteran's
claim and the notification requirements of the Veterans
Claims Assistance Act of 2000 have been satisfied.  38
U.S.C.A. �� 5102, 5103, 5103A, and 5107 (West Supp. 2002);
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2002).

2.  Service connection is not warranted for claimed cold
injury residuals of the lower extremities, including
osteoarthritis of the knees.  38 U.S.C.A. �� 1101, 1110,
1112, 1137, 5107 (West 1991 & Supp. 2002).

3.  The September 1978 rating decision in which the RO
denied entitlement to service connection for a right ankle
disorder is final.  38 U.S.C.A. � 7105 (West 1991);
38 C.F.R. �� 3.160(d), 20.302 (2002).

4.  The veteran has not submitted new and material evidence
to reopen the claim for service connection for a right ankle
disorder.  38 U.S.C.A. �� 5108, 7105 (West 1991 & Supp.
2002); 38 C.F.R. � 3.156 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000

During the pendency of this claim, the enactment of the
Veterans Claims Assistance Act of 2000 (VCAA) has enhanced
VA's duty to notify and assist claimants for VA benefits.
38 U.S.C.A. �� 5100, 5102, 5103, 5013A, 5107, 5126 (West
Supp. 2002).  Regulations implementing the VCAA have been
adopted.  See 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a)
(2002).

The VCAA prescribed that the amendments to 38 U.S.C. � 5107
are effective retroactively to claims filed and pending
before the date of enactment.  38 U.S.C.A. � 5107 note
(Effective and Applicability Provisions) (West Supp. 2002).
The United States Court of Appeals for the Federal Circuit
has ruled that the retroactive effective date provision of
the Act applies only to the amendments to 38 U.S.C. � 5107.
See Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002);
Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).
However, the VA regulations promulgated to implement the Act
provide for the retroactive effect of the regulations,
except as to claims to reopen pending on August 29, 2001.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001).  Whereas VA
regulations are binding on the Board, 38 C.F.R. � 20.101(a)
(2002), the Board in this decision will apply the
regulations implementing the VCAA as they pertain to the
original claim for service connection, but will apply the
regulations relating to claims to reopen in effect prior to
August 29, 2001.  Thus, citations to the pertinent
regulation, 38 C.F.R. � 3.156(a), will be to the 2001 Code
of Federal Regulations.

The veteran filed a claim using the appropriate form in
April 2000.  It is substantially complete.  There is
therefore no issue as to VA's duty to provide an appropriate
form or instructions for completing it.  38 U.S.C.A. � 5102
(West Supp. 2002); 38 C.F.R. �� 3.150, 3.159(b)(2) (2002).

Upon submission of a substantially complete application, VA
must notify the claimant of information and lay or medical
evidence needed to substantiate the claim, and must notify
the claimant of what portion of that information and
evidence is his responsibility, and what is VA's
responsibility.  38 U.S.C.A. � 5103(a) (West Supp. 2002); 38
C.F.R. � 3.159(b)(1) (2002); Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002).  On receipt of the veteran's
application for compensation, the RO wrote to him in April
and June 2000.  In the April letter, the RO advised the
veteran that supporting medical evidence would be needed to
substantiate his claims, and that it would be medical
evidence showing current disability, and medical evidence
relating that disability to service.  He was told that VA
would obtain his VA treatment records if he told them where
he was treated and the approximate dates of treatment.  The
June letter was more detailed and specific, pointing out
what evidence the veteran needed to submit.  He was told
that VA would get his treatment records from Tampa VA
Medical Center.  (The veteran's representative had reported
that the veteran received treatment there.)

Although these letters were sent to the veteran under law,
requiring submission of a well-grounded claim, that has been
superseded by the VCAA, the letters nonetheless provided
appropriate and specific notice to the veteran of what he
needed to submit and what VA would obtain.  Furthermore,
after the law changed, the RO again wrote to the veteran in
July 2001, informing him of the VCAA and of VA's new duties
with respect to developing evidence in support of his claim.
The RO has complied with the notification requirements of
the VCAA with respect to information and evidence needed and
responsibilities for presenting the evidence.

VA is also required to make reasonable efforts to assist a
claimant in obtaining evidence to substantiate a claim.  38
U.S.C.A. � 5103A (West Supp. 2002); 38 C.F.R. � 3.159(c)
(2002).  A veteran seeking to reopen a claim previously
finally denied is a claimant under the VCAA.  See Quartuccio
v. Principi, 16 Vet. App. 183.  However, nothing in the Act
requires the Secretary to reopen a claim that has been
disallowed except when new and material evidence is
presented or secured.  38 U.S.C.A. � 5103A(f) (West Supp.
2002).

The duty to assist includes obtaining service medical
records, VA treatment records, records under the control of
other Federal agencies, and private treatment records
adequately identified by the veteran.  It includes according
an examination when needed to make a decision on the claim.
38 U.S.C.A. � 5103A(c) (West Supp. 2002); 38 C.F.R.
� 3.159(c) (2002).  If VA is unable to obtain records from
any source, it is to notify the claimant.  38 U.S.C.A.
� 5103A(b) (West Supp. 2002); 38 C.F.R. � 3.159(e) (2002).

In this case, the veteran's service medical records were
originally requested in connection with a claim he filed in
1978.  They were not available then and were presumed
destroyed by a fire at the National Personnel Records
Center.  The veteran was informed of the unavailability of
his service medical records in the August 2000 rating
decision.  The veteran has not identified any private
treatment records that should be requested.  He did provide
a medical release authorizing VA to request his treatment
records from "all sources," however, he did not identify any
sources other than VA.  His VA treatment records from Tampa
VAMC have been associated with the file.  He has been
accorded an examination pertinent to his claims.  VA has
fulfilled its duty to assist him.

The veteran contends that he has current disability from
right and left lower extremity disorders, including
bilateral knee disorders claimed as osteoarthritis due to
in-service cold exposure.  He also contends that he has
current disability from a right ankle disorder as a result
of an injury incurred during his active military service.
Implied in his claim is the assertion that he has submitted
new and material evidence to reopen the disallowed claim of
entitlement to service connection for a right ankle
disorder.

For the following reasons and bases, the Board concludes
that the veteran is not entitled to service connection for a
right or left knee disorder, claimed as osteoarthritis due
to cold exposure.  The Board also concludes that the veteran
has not submitted new and material evidence to reopen his
claim of entitlement to service connection for a right ankle
disorder.

II.  Service Connection for Knee Disorders

Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service.  38 U.S.C.A. �� 101(16), 1110 (West 1991 &
Supp. 2002); 38 C.F.R. � 3.303 (2002).  Also, 38 U.S.C.A. ��
1101, 1110, 1112, and 1137 provide that where a veteran has
served 90 days or more during a period of war or after
December 31, 1946, and develops arthritis to a degree of
disability of 10 percent or more within one year of
separation from such service, such disease shall be presumed
to have been incurred in service.

Generally, to support a claim for service connection, there
must be evidence of the following three elements: (1)
competent lay or medical evidence of a current diagnosed
disability or of persistent or recurrent symptoms of
disability; (2) evidence which establishes the veteran
suffered an event, injury or disease in service; and (3)
evidence which indicates that the claimed disability or
symptoms may be associated with the established event,
injury or disease in service or another service-connected
disability.

The United States Court Appeals for Veterans Claims (Court)
has held that in order to obtain VA benefits the law
requires the evidence to show a diagnosis of a current
disability or the current disabling residuals from a disease
or injury.  Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996).
The disability must also be shown to be related to an in-
service occurrence or there must be evidence of a nexus or
connection between the current disability and the in-service
precipitating disease or injury.  Epps v. Gober, 126 F.3d
1464 (Fed. Cir. 1997).

The discussion which follows is a summary of the evidence
considered by the Board.

The veteran testified in January 2001 that his knees pop and
lock up and his feet and ankles ache in cold weather.  He
asserted that he had poor circulation in his feet and
calves.  He attributed his right ankle pain to an injury he
claimed to have sustained while serving in Korea.  He
claimed to have been treated at a field hospital for three
or four days and was then returned to duty.

The RO has been advised that the veteran's service medical
records may have been among those destroyed in a fire in
1973 at the National Personnel Records Center in St. Louis,
Missouri.  Unfortunately, attempts to obtain records from
the NPRC have been unsuccessful.  The veteran has been so
notified.  There are no medical records to document any in-
service complaints, diagnoses, or treatment of a lower
extremity disorder, including cold injuries or a right ankle
injury.  However, the veteran served in Korea during a
period of war, and his service personnel records show that
he received the Combat Infantryman Badge.  The veteran is
competent to say that he injured his right ankle in service.
He reported in 1978 that he injured his ankle in combat,
requiring field hospitalization, after which he was returned
to service.  In May 2000, he stated that he fell in a hole
while in Korea.  The fact of having injured his ankle in
service is something he is competent to report.  As a combat
veteran, he is entitled to have his statement accepted as
proof of the injury, if it is consistent with the
circumstances, conditions, or hardships of such service.  38
U.S.C.A. � 1154(b) (West 1991).  Furthermore, a service
buddy has reported seeing him in Korea with a stiff right
leg.  The veteran was a cook in service, rendering his
account of having injured his ankle in combat somewhat less
likely.  However, an injury falling into a hole is credible.
Accordingly, there is evidence that the veteran suffered
some kind of injury to his right leg or ankle in service.

The earliest dated documentation of medical treatment
contained in the claims folder is a VA hospital summary
dated in June 1978.  The summary indicates that in May 1978
the veteran sustained a bimalleolar fracture and lateral
mortise displacement of the right ankle when he twisted his
ankle getting out of his truck.  It required open reduction
and internal fixation.  The hospital summary does not report
any history of a prior injury.

In a letter dated in February 2000, an in-service
acquaintance reported that he remembered that the veteran
had a stiff right leg on two occasions when he saw him in
Korea.

Outpatient treatment records show that the veteran was
examined at a VA medical center in Florida in March 2000.
He was observed to walk with a normal gait and posture.  He
had trace edema over his ankles.  The pertinent diagnoses
were new onset of type-2 diabetes and degenerative joint
disease of the knees, improved with Naproxen.  When the
veteran was seen again as an outpatient in April 2000,
several examiners noted the veteran's complaints of
arthritis in his knees.  When he was examined in June 2000,
he was observed to walk with a cane due to pain in his
ankles.  X-rays of the veteran's knees and feet taken in
August 2000 showed no significant skeletal pathology.  An x-
ray of his right ankle showed normal anatomy, status post
internal fixation of a distal fibular fracture.  There were
minor juxta-articular osteoarthritis changes.  The
radiologist reported an impression of status-post right
fibular fracture.

In August 2000, the veteran was accorded a VA cold injury
protocol examination.  The veteran reported to the examiner
that he twisted his right leg while in retreat from the
front lines.  He said he developed swelling and was taken to
a field hospital.  He thought he was there for one or two
weeks.  He did not remember and specific frostbite,
blisters, or color changes to his feet or hands.  He may
have had some numbness to both lower legs.  He could not
remember what kind of treatment was given.  He did not
remember any blisters developing on his feet.  He was not
given warm baths or soaks for his feet or lower extremities.
After being in the hospital for a time, he worked in the
kitchen for a while and then went back to his unit, where he
thought he served as an infantryman until he was sent back
to the U.S.

The veteran reported that, when he returned to civilian
life, he drove a truck for 40 years.  He did not recall
having treatment since his military service for cold
injuries.  He had no amputations or loss of tissue at any
time.  He reported slight tingling of his toes and calves
with cold exposure.  He did not describe Raynaud's
phenomenon.  He reported that both hands and feet tended to
perspire more than in the past.  He did not have chronic
pain, causalgia, or reflex sympathetic dystrophy.  He had no
breakdown of the skin and no recurrent fungal infections.
He reported arthritis and joint stiffness, mainly in the
knees and ankles, primarily in the last five years.  The
examiner noted the veteran's history of bimalleolar fracture
of the right ankle.

On examination, the veteran's skin of the lower extremities
showed normal aging.  There was no significant edema, and
the skin was dry and slightly thinning due to aging.  There
were no ulcers.  There was no evidence of fungal infection.
There was no obvious swelling of the knees or ankles. There
was slight popping with motion of the patella in flexion and
extension.  The patellae tracked normally in the femoral
groove.  Range of motion was full.  There was no
instability.  There was evidence of mild chondromalacia.  X-
rays of both ankles, feet, and knees were done.  The knees,
feet, and left ankle were normal.  The right ankle showed
minor osteoarthritic changes and status post internal
fixation of a distal fibular fracture.  Diagnoses included
history of right bimalleolar ankle fracture, requiring open
reduction and internal fixation in 1978; evidence of right
fibular fracture in the past; history f osteoarthritis of
both knees, with some evidence of mild chondromalacia
patellae, both knees, but normal x-rays; and history and
physical examination are not very consistent with
significant cold injury to his feet, normal x-rays.

In September 2000, the veteran's representative submitted a
copy of a newspaper article citing a university study which
found that persons who had joint injuries in their youth
were more likely to develop arthritis in the affected joint
later in their life.

During a first-time examination at a VA primary care clinic
in Florida in December 2000, the veteran's complaints
included joint pain in his knees which he attributed to in-
service injuries.  Clinical findings included crepitation in
the knees.  However, no pertinent diagnosis was reported
about the veteran's knees, ankles, feet, peripheral vascular
system, or residuals of a cold-related injury.

During outpatient treatment in August 2001, the veteran
attributed symptoms of inability to dorsiflex his right
great toe to injuries sustained while in service.  He also
reported difficulty walking and difficulty swinging his
right foot during the swing phase of gait, causing him to
drag his right foot on the ground and trip.  On examination,
vascular pulses in his lower extremities were palpable.  The
skin was warm, dry and supple.  There were slight varices
and slight brown pigmentation on the dorsum of both feet.
Hair growth was present.  The toenails were mycotic.  Muscle
tone, power and mass were within normal limits in both feet.
Dorsiflexion of the right great toe was minimal, only to
zero degrees.  There were no major orthopedic deformities.
The examiner reported an impression of partial paralysis of
the extensor hallucis longus tendon with partial dropfoot-
type gait and mycotic toe nails.

When the veteran was seen in a VA orthotics clinic in
September 2001, an examiner noted a history of old injury in
1978 with residual right extensor hallucis longus loss.
Current complaints were of toe drag and tripping.  An
orthotic spring device was prescribed.

The Board has thoroughly reviewed the entire record.  Based
on the evidence in the record, the Board finds that the
veteran was exposed to cold during his active duty service
in Korea.  Further, the Board accepts as credible the
veteran's testimony, corroborated by a "buddy statement",
that he sustained an injury to his right ankle or leg during
his service in Korea.  Finally, there is medical evidence
that supports a finding that the veteran has current
disability from osteoarthritis in his right ankle as well as
a right foot disorder due to partial paralysis of the
extensor longus hallucis.  He also has evidence of bilateral
chondromalacia patellae.  A hospital record dated in 1978
shows that he sustained a fracture of the ankle in May 1978.
Recent x-rays of the right ankle show an old fracture.
However, x-rays of the knees do not confirm the clinical
diagnosis of arthritis.

Despite all of the evidence discussed above, the veteran's
claim for service connection for disability in his lower
extremities, claimed as residuals of cold exposure injury
with osteoarthritis, must be denied.  The record contains no
competent medical evidence which relates this veteran's
current chondromalacia patellae to a disease or injury he
incurred during his active military service, including cold
injury.  In fact, on VA examination, there was no evidence
of cold injury residuals.  Furthermore, x-rays do not
substantiate that the veteran has arthritis of the knees.
Where, as in this case, the determinative issue is the
etiology of current disability, the mere recitation of the
veteran's history, as provided by the veteran and recorded
by a medical examiner, without further medical comment by
the examiner as to etiology, is not evidence of a nexus
between current disability and the claimed in-service
disease or injury.  Leshore v. Brown, 8 Vet. App. 406
(1995).  The veteran's own assertions that he has current
disabilities that are related to in-service injuries are
afforded no probative weight in the absence of evidence that
he has the expertise to render medical opinions concerning
the etiology the disorders resulting in the claimed
disabilities.  Espiritu v. Derwinski, 2 Vet. App. 492
(1992).

The earliest clinically documented symptomatology of pain
was noted many years after the veteran's separation from
service.

To summarize, in the absence of medical evidence that the
veteran's claimed current disabilities in his lower
extremities are related to injuries or disease incurred in
service, the Board concludes that he is not entitled to
service connection for residuals of cold injuries to the
lower extremities, including osteoarthritis of both knees.

III.  Reopening of Claim for Service Connection for a Right
Ankle Disorder

In a September 1978 rating decision, the RO denied
entitlement to service connection for a right ankle
disorder.  The veteran did not appeal that decision, and it
became final.  38 U.S.C.A. � 7105(c) (West 1991); 38 C.F.R.
�� 3.104, 3.160(d), 20.302(a) (2002).

The question presently before the Board is limited to
whether the veteran has submitted new and material evidence
to reopen his previously denied claim.  To reopen a finally
denied claim, a veteran must submit new and material
evidence.  38 U.S.C.A. �� 5108 (West 1991); 38 C.F.R.
� 3.156 (2001).

As defined by regulation, new and material evidence means
evidence not previously submitted to agency decisionmakers
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).

In determining whether the evidence presented or secured
since the prior final disallowance of the claim is new and
material, "the credibility of the [new] evidence" is
presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The new and material evidence must be presented or secured
since the time that the claim was finally disallowed on any
basis, not only since the time that the claim was last
disallowed on the merits.  Evans v. Brown, 9 Vet. App. 273,
285 (1996).

At the time of the RO's September 1978 denial of the
veteran's claims, the evidence in the record consisted of a
VA hospitalization summary, some service personnel records,
and the veteran's statements attributing his right ankle
fracture in 1978 to an injury he sustained in-service.  Such
evidence did not show that the veteran's right ankle
disorder was related to an injury or disease incurred during
his active military service.  It showed that his ankle
fracture was related to an injury in May 1978, many years
following service.

The evidence received since the September 1978 disallowance
of the claim has already been summarized.  The veteran's
statements as to having injured his right ankle in service
are cumulative, although he has provided differing accounts
as to how it came to be injured.  These statements are not
new.  The statement of the buddy who noticed the veteran to
walk with a stiff right leg in service is new.  However, it
is not so significant that it must be considered in
evaluating the claim.  It sheds no light on the reason for
the stiff gait, nor does it attribute any current disability
to service.  Medical records showing arthritis of the ankle
or residuals of fracture are cumulative.  Even though the
specific records may be new, they add nothing new to the
question of whether the ankle disability is due to injury in
service.  However, the evidence is not probative of the
question of whether the veteran's current disability is
etiologically related to a disease or injury incurred in
service.  Therefore, the evidence is not both new and
material.  The claim of entitlement to service connection
for a right ankle disorder is not reopened.

The appellant has asserted that the doctrine of benefit of
the doubt requires that benefits he seeks be granted.  That
doctrine requires resolution of an issue in favor of the
claimant when there is an approximate balance of positive
and negative evidence regarding the merits of an issue
material to the determination of a matter.  38 U.S.C.A.
� 5107 (West Supp. 2002).  However, in this case, there is
no competent positive evidence that the veteran's right
ankle disability was caused by an injury incurred in
service, as opposed to the fracture sustained in 1978.
Therefore, the benefit of the doubt doctrine is not for
application.  See Gilbert v. Derwinski, 1 Vet. App. 49
(1990) (benefit of the doubt rule must be applied only when
the evidence is in relative equipoise).

ORDER

Entitlement to service connection for right and left lower
extremity disorders, claimed a due to cold injury, including
osteoarthritis, is denied.

The claim to reopen a claim of entitlement to service
connection for a right ankle disorder is denied.

	J. SHERMAN ROBERTS
	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: hip

text:
Citation Nr: 0218000
Decision Date: 12/12/02    Archive Date: 12/18/02

DOCKET NO.  01-02 867	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for arthritis of the
left leg and hip, to include as secondary to service-
connected residuals of a severed left Achilles tendon.

2.  Entitlement to an increased rating for residuals of a
severed left Achilles tendon, currently evaluated as 20
percent disabling.

(The claim of entitlement to an increased evaluation for
residuals of a severed left Achilles tendon will be the
subject of a later post-development decision.)

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

S.M. Cieplak, Counsel

INTRODUCTION

The veteran served on active duty from January 1951 to
February 1953.

This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2000 rating decision by
the Department of Veterans Affairs (VA) Regional Office
(RO) in Montgomery, Alabama, which denied the benefits
sought.

The Board is undertaking additional development on the
issue of service connection for residuals of a severed
left Achilles tendon as it affects the left ankle pursuant
to authority granted by 67 Fed. Reg. 3099, 3104 (Jan. 23,
2002) (to be codified at 38 C.F.R. � 19.9(a)(2)).
Thereafter, the Board will provide notice of that
development as required by Rule of Practice 903.  67 Fed.
Reg. 3099, 3105 (Jan. 23, 2002) (to be codified at 38
C.F.R. � 20.903).  After giving the notice and reviewing
any response, the Board will prepare a separate decision
addressing this issue.

FINDINGS OF FACT

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

2.  The evidence of record does not demonstrate that
arthritis of the left leg and left hip is related to
service or a service connected disability.

CONCLUSION OF LAW

Arthritis of the left leg and left hip was not incurred or
aggravated by active military service, nor may it be
presumed to have been so incurred, nor does the record
demonstrate a relationship between the claimed disability
and a service-connected disability.  38 U.S.C.A. �� 1101,
1110, 1112, 1113, 1116, 5102, 5103, 5103A, 5107 (West 1991
& Supp. 2002); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.307,
3.309, 3.310 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 was recently
enacted.  38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West
Supp. 2001) (VCAA).  This new legislation provides among
other things for notice and assistance to claimants under
certain circumstances.  See also new regulations at 66
Fed. Reg. 45630-32 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. � 3.159), promulgated pursuant to the
enabling statute.  The Board finds notes that that while
this law was enacted during the pendency of this appeal,
it was considered by the RO.  Thus, there is no prejudice
to the veteran in proceeding with this appeal.  See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

The Board concludes that discussions in the rating(s),
statement of the case and other development
correspondence, and particularly the April 27, 2001
correspondence, followed by the October 2001 Supplemental
Statement of the Case, has informed the appellant of the
information and evidence needed to substantiate the claim,
in this case, the absence of evidence demonstrating an
association between the claimed disorder and military
service or a service-connected disability; thus, the VA's
notification requirements have been satisfied.  Quartuccio
v. Principi, 16 Vet. App. 183 (2002).

As to the duty to assist the claimant, the appellant has
not identified any relevant treatment (i.e. pertaining to
treatment of the claimed disability) beyond that for which
development has already been undertaken.  In other words,
the claimant has not referenced any unobtained,
obtainable, evidence that might aid the claim.

In this case, the Board finds that VA has done everything
reasonably possible to assist the claimant.  Therefore,
there is no indication that additional relevant records
exist that have not been obtained.  Accordingly,
additional development for compliance with the new duty to
assist requirements is not necessary, and the appellant is
not prejudiced by the Board's decision not to do so.  See
Bernard v. Brown, 4 Vet. App. 384 (1993).

Entitlement to service connection for a particular
disability requires evidence of the existence of a current
disability and evidence that the disability resulted from
a disease or  injury incurred in or aggravated during
service.  38 U.S.C.A. � 1110, (West 1991); 38 C.F.R. �
3.303(a) (2002).  Service connection may also be granted
for any disease diagnosed  after discharge, when all the
evidence, including that  pertinent to service,
establishes that the disease was incurred in service.  38
C.F.R. � 3.303(d) (2002).  Alternatively, the nexus
between service and the current disability can be
satisfied by medical or lay evidence of continuity of
symptomatology and medical evidence of a nexus between the
present disability and the symptomatology.  See Voerth v.
West, 13 Vet. App. 117 (1999); Savage v. Gober, 10  Vet.
App. 488, 495 (1997).

Where a veteran served for at least 90 days during a
period of war or after December 31, 1946, and certain
chronic diseases, such as arthritis, become manifest to a
degree of 10 percent within one year from the date of
termination of such service, such diseases shall be
presumed to have been incurred in service, even though
there is no evidence of such diseases during the period of
service.  38 U.S.C.A. �� 1101, 1112, 1113; 38 C.F.R. ��
3.307, 3.309.  Service connection may also be granted for
disability which is proximately due to or the result of a
service-connected disease or injury. 38 C.F.R. � 3.310(a)
(2002).

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

"In order to prevail on the issue of service connection .
. . there must be medical evidence of a current disability
[citation omitted]; medical or, in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and medical evidence of a nexus between
the claimed in-service disease or injury and the present
disease or injury."  Hickson v. West, 12 Vet. App. 247,
253 (1999).

In this case, the claimed disorder, arthritis of the left
leg and hip, was not manifest during service or within a
year after separation.  Therefore, entitlement on a
presumptive basis is inappropriate.  Moreover, despite the
veteran's assertions, a VA examination in November 2000,
which included X-ray reports, failed to reflect the
presence of the claimed disorder.

It bears emphasis that the veteran's opinion as to medical
matters, no matter how sincere, is without probative value
because he, as a lay person, is not competent to establish
a medical diagnosis or draw medical conclusions; such
matters require medical expertise.  See Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992).

After consideration of all of the evidence, the Board
finds that the preponderance of the evidence is against
the claim of entitlement to service connection for
arthritis of the left leg and hip.  Because the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application.  38
U.S.C.A. � 5107(b) (West 1991); Gilbert v. Derwinski, 1
Vet. App. 49 (1991).

ORDER

Entitlement to service connection for arthritis of the
left leg and hip is denied.

	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: THOMAS J DANNAHER

text:
Citation Nr: 0200001
Decision Date: 01/02/02    Archive Date: 01/11/02

DOCKET NO.  00-11 919	)	DATE
	)
	)

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

THE ISSUE

Entitlement to waiver of recovery of loan guaranty
indebtedness in the amount of $18,826.38 plus interest.

ATTORNEY FOR THE BOARD

Robert C. Scharnberger, Associate Counsel

INTRODUCTION

The veteran reportedly served on active duty from November
1985 to November 1989.

This matter has come before the Board of Veterans' Appeals
(the Board) on appeal from a September 1999 decision of the
Committee on Waivers and Compromises (Committee) of the
Department of Veterans Affairs (VA) Regional Office (RO,
located in St. Petersburg, Florida.  The Committee determined
that the veteran had exhibited bad faith in his dealings with
VA and the claim was denied on that basis.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable
disposition relating to the issue of bad faith has been
obtained.

2. In December 1986, the veteran and his wife purchased a
home with a VA guaranteed home loan.

3. There was a default on the VA guaranteed loan
necessitating a foreclosure sale of the subject property
in July 1998.  VA paid the lender's loan guaranty claim
and the related debt to the government, in the principal
amount of $18,826.38, was charged to the veteran.

4. The indebtedness at issue did not result from fraud,
misrepresentation, or bad faith on the part of the
veteran.

CONCLUSIONS OF LAW

1. After default by the veteran in payment of the VA
guaranteed loan, there was a loss of the property that
served as security for that loan.  38 U.S.C.A. � 5302(b)
(West 1991 & Supp. 2001); 38 C.F.R. � 1.964(a)(1) (2001).

2. Waiver of recovery of the loan guaranty indebtedness in
question is not precluded by law.  38 U.S.C.A. � 5302(c),
38 C.F.R. � 1.964(a)(2) (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000).  38 U.S.C.A. � 5100 et. seq.; see,
Duty to Assist Regulations for VA, 66 Fed. Reg. 45,620-45,632
(Aug. 29, 2001) (to be codified at 38 C.F.R. �� 3.102, 3.156,
3.159, 3.326).  This law redefined the obligations of VA with
respect to the duty to assist and included an enhanced duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.  This law
also eliminated the concept of a well-grounded claim and
superseded the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA could not assist in the development of a claim that
was not well grounded.  This change in the law is applicable
to all claims filed on or after the date of enactment of the
VCAA, or filed before the date of enactment and not yet final
as of that date. 38 U.S.C.A. � 5107a (West 1991 and Supp.
2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991).

It is the Board's conclusion that the new law does not
preclude the Board from adjudicating the issue of whether the
veteran has acted in bad faith.  This is so because the Board
is taking action favorable to the veteran by finding that
there was no bad faith.  Making this determination, prior to
referring the claim to the RO for consideration of the waiver
request on the basis of equity and good conscience, poses no
risk of prejudice to the veteran.  See, e.g., Bernard v.
Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg.
49,747 (1992).

The veteran's request for a waiver of the recovery of
indebtedness created by a default of a VA guaranteed home
loan has been denied as a matter of law based on a finding of
bad faith.  In this regard, the recovery of an indebtedness
may not be waived if there exists evidence of fraud,
misrepresentation, or bad faith on the part of the person or
persons having an interest in obtaining such waiver.
38 U.S.C.A. � 5302(c).

A review of the file reveals that the veteran and his wife
obtained a VA guaranteed home loan in December 1986, and
utilized the proceeds of the loan to purchase real property
which was used as security for the loan.  Integral to the
loan agreement was that the veteran and his wife would be
responsible to the VA for any loss resulting from a
subsequent default and foreclosure on the subject property.
Subsequent problems with payments ensued.  The veteran has
indicated that he was divorced in 1993, and by 1997 was
unemployed and without funds to pay the mortgage.  An August
1997 VA Form 26-6850 shows that the first uncured default on
the mortgage was the June 1, 1997 payment.

The RO obtained documents from the mortgage holder which
revealed the loan servicing history after June 1997.  In
August 1997 the veteran informed the bank that he had moved.
The evidence indicates that the bank offered to set the
veteran up on a repayment plan in August 1997.  A loan-
servicing note dated September 4, 1997 indicates that the
veteran broke the repayment plan he had agreed to.  The bank
records indicate that the veteran was in contact with the
bank regarding the status of his loan.  In October 1997, the
veteran again contacted the bank and attempted to work out a
payment plan.  The bank advised him to contact VA.  There is
no record that the veteran did so.

In November 1997, the bank informed VA that it was beginning
foreclosure proceedings.  The unpaid principal and interest
amount of the loan at that time was $45,819.42.  Additional
expenses associated with foreclosure brought the total
indebtedness of the veteran to $49,177.18.  In July 1998 the
foreclosure sale was held and the property was sold for
$30,110.00.  VA paid the bank $19,052.21 as settlement of the
guaranty of the loan.  According to VA records $225.83 of
this represents payments that the debtor is not responsible
for, leaving a total indebtedness of the veteran of
$18,826.38 plus interest.

In June 1999, the veteran filed a request for waiver of the
loan guaranty indebtedness.  The veteran indicated that his
1993 divorce contributed to financial difficulties.  He
stated that he had help from his family for some time, but
was ultimately unable to obtain a job that would allow for
payment of the mortgage.  He added that in April 1997 he was
laid off from his job and was unable to find employment.  The
veteran stated that he made repeated attempts to work out a
repayment plan with the lender but was unable to do so.

As noted at the outset, the veteran's waiver claim has been
denied by the Committee based on a finding of "bad faith".
It appears that the Committee felt there was a lack of
cooperation from the veteran, no contact with VA from the
veteran, and no attempt by the veteran to mitigate the
damages caused by his default on the mortgage.  The term
"bad faith" has been clarified by the United States Court
of Appeals for Veteran's Claims (Court) as involving "unfair
or deceptive dealing by one who seeks to gain thereby at
another's expense.  A debtor's conduct in connection with a
debt arising from participation in VA benefits/services
program exhibits bad faith if such conduct, although not
undertaken with actual fraudulent intent, is undertaken with
intent to seek an unfair advantage with knowledge of the
likely consequences, and results in a loss to the
government."  Richards v. Brown, 9 Vet. App. 255, 257
(1996); quoting 38 C.F.R. � 1.965(b).  The Court made it
clear that the operative language in 38 C.F.R. � 1.965(b)(2)
limits bad faith to cases in which there is an intent to seek
an unfair advantage.  A mere negligent failure to fulfill a
duty or contractual obligation is not an appropriate basis
for a bad faith determination.  Richards, 9 Vet. App. at 257,
258.

After reviewing the facts of this case, and giving all
possible benefit of the doubt to the veteran, the Board is
unable to find that there was the necessary intent on the
veteran's part to take unfair advantage.  It is apparent that
there were payment problems and the veteran has stated that
he did not have sufficient income to meet the payments after
losing his job in April 1997.  The evidence does show that
the veteran was in contact with the bank and that he
attempted on at least two occasions to work out a payment
plan with the bank, though he did not follow-up on either
plan.  It is true that the veteran did not contact VA to
attempt to explore alternatives to foreclosure, but this
failure is more in the way of a negligent failure to fulfill
a duty, rather than an active intent to seek an unfair
advantage.  In light of the attempts by the veteran to work
with the bank, and in light of the repeated contacts between
the bank and the veteran between July and November 1997, the
Board is unable to find any intent to take an unfair
advantage.  Accordingly, there is no statutory bar to the
waiver of recovery of the loan guaranty debt.
ORDER

Entitlement to waiver of the recovery of a loan guaranty
indebtedness is not precluded as a matter of law.  To this
extent, the appeal is granted.

REMAND

In view of the Board's finding that waiver of recovery of the
overpayment is not precluded as a matter of law, preliminary
consideration of the veteran's waiver claim under the
principles of equity and good conscience is necessary before
the Board may properly proceed with appellate review.

The standard "equity and good conscience" will be applied
when the facts and circumstances in a particular case
indicate a need for reasonableness and moderation in the
exercise of the Government's rights.  The decision reached
should not be unduly favorable or adverse to either side.
The phrase "equity and good conscience" means arriving at a
fair decision between the obligor and the Government.  In
making this determination, consideration will be given to the
following elements, which are not intended to be all-
inclusive: (1) the fault of the debtor, (2) balancing of
faults between the debtor and VA, (3) undue hardship of
collection on the debtor, (4) a defeat of the purpose of an
existing benefit to the veteran, (5) the unjust enrichment of
the veteran, and , (6) whether the veteran changed positions
to his or her detriment in reliance upon a granted VA
benefit.  38 U.S.C.A. � 5302; 38 C.F.R. � 1965(a) (2001).

The RO should review the veteran's request for waiver of the
overpayment in light of the above standard of equity and good
conscience.  To this end, the RO should obtain all relevant
evidence, including copies of all appropriate tax returns
from the veteran, any other evidence of the veteran's
financial status, as well as other evidence that the RO finds
necessary and relevant.

The provisions of the VCAA regarding a duty to assist and a
duty to notify the veteran of the evidence necessary to grant
his claim still apply, and the RO should follow all
appropriate procedures to ensure all assistance required by
the VCAA is provided.

Accordingly, this case is hereby REMANDED for the following
action:

1. The RO should gather any additional
evidence that is necessary in order to
adjudicate the veteran's claim for
waiver of recovery of the loan guaranty
indebtedness.  This evidence should
include all records of the veteran's
financial status, including tax
returns, and any other evidence the RO
finds relevant to its determination.
Pursuant to the VCAA, the RO should
inform the veteran of the evidence that
would be necessary in order to grant
his claim, and provide all possible
assistance in obtaining all relevant
evidence.

2. After undertaking all additional
development of the evidence deemed
necessary, the Committee should then
review the record and determine whether
the veteran's waiver claim can be
granted under the principles of equity
and good conscience.  38 C.F.R.
� 1.965.  If the veteran's waiver claim
remains denied, then the veteran should
be furnished with an appropriate
supplemental statement of the case and
be afforded an opportunity to respond.

Thereafter, the case should be returned to the Board
for appellate review.  The Board intimates no
opinion as to the ultimate resolution of the appeal
by this remand.  The purpose of this remand is to
provide the veteran due process of law.

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

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West Supp. 2001) (Historical and
Statutory Notes).  In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.

	THOMAS J. DANNAHER
	Member, Board of Veterans' Appeals


judge_norm: ALAN S PEEVY

text: The appeal is denied.

text:
Citation Nr: 0201001
Decision Date: 01/30/02    Archive Date: 02/05/02

DOCKET NO.  96-15 313	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an effective date prior to March 19, 1987, for
the assignment of a 30 percent evaluation for service-
connected bilateral defective hearing.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. M. Fogarty, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1966 to October
1968.

This case is before the Board of Veterans' Appeals (Board) on
appeal from a November 1988 rating decision by the Buffalo,
New York, Regional Office (RO) of the Department of Veterans
Affairs (VA) which assigned a 30 percent rating for bilateral
defective hearing, effective March 19, 1987.  A notice of
disagreement as to the effective date was received in
February 1989.  A March 1990 Board decision (on an unrelated
issue) noted that a statement of the case had not been issued
on the effective date claim.  The lack of a statement of the
case was again noted by the Board in a May 2000 decision
(also on unrelated issues) and the matter was remanded to the
RO for issuance of a statement of the case.  A statement of
the case was subsequently issued in June 2000, and a written
statement received in August 2000 was as a substantive
appeal.

The Board acknowledges certain contentions and argument
offered at a July 2001 Board hearing in Washington, D.C.
pertinent to the proper effective date for the original grant
of service connection for hearing loss as well as in
connection with other issues addressed in the May 2000 Board
decision.  However, none of these matters are in appellate
status.  However, in view of the July 2001 testimony and
argument presented at that time by the veteran's
representative, the Board hereby refers these matters raised
at the July 2001 Board hearing to the RO for clarification as
to any new issues which the veteran may be attempting to
raise and any necessary action.

Also discussed generally at the July 2001 Board hearing was
the possibility of challenges to prior Board decisions on the
grounds of clear and unmistakable error.  With regard to any
clear and unmistakable error challenge to prior Board
decisions which the veteran and his representative may be
contemplating, the Board hereby directs their attention to
the provisions of 38 C.F.R. �� 20.1400-1411 (2001).

FINDINGS OF FACT

1.  Service connection for bilateral defective hearing was
established by rating decision in July 1984, and a
noncompensable rating was assigned, effective from February
15, 1984.

2.  In an October 1985 decision, the Board denied an appeal
on the issue of entitlement to a compensable evaluation for
bilateral defective hearing.

3.  On May 20, 1987, the veteran's claim for an increased
evaluation of his service-connected bilateral defective
hearing was received.

4.  It was not factually ascertainable prior to March 19,
1987, that an increase in the veteran's hearing loss
disability had occurred to warrant assignment of a 30 percent
rating.

CONCLUSION OF LAW

The criteria for entitlement to an effective date prior to
March 19, 1987, for the assignment of a 30 percent evaluation
for bilateral defective hearing have not been met.
38 U.S.C.A. �� 5107, 5110 (West 1991 & Supp. 2001); 38 C.F.R.
�� 3.114, 3.400 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board notes that on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA).  Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000), now codified at
38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West Supp. 2001).
This newly enacted legislation provides, among other things,
for notice and assistance to claimants under certain
circumstances.  VA has issued final rules to amend
adjudication regulations to implement the provisions of the
VCAA.  See 66 Fe. Reg. 45,620 (August 29, 2001) (to be
codified as amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
and 3.326(a)).  The intended effect of the new regulation is
to establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim.  Where laws or regulations change
after a claim has been filed or reopened and before the
administrative or judicial process has been concluded, the
version most favorable to the appellant will apply unless
Congress provided otherwise or has permitted the Secretary of
Veterans Affairs to do otherwise and the Secretary has done
so.  See Karnas v. Derwinski, 1 Vet. App. 308 (1991).

After reviewing the claims folder, the Board finds that there
has been substantial compliance with the assistance
provisions of the new legislation.  The record includes VA
examination reports as well as VA outpatient treatment
records.  The veteran was also afforded a Board hearing in
July 2001.  No additional available evidence pertinent to the
question of the level of severity of the veteran's hearing
loss during the period covered by this appeal has been
identified by the veteran.  Under these circumstances, no
further action is necessary to assist the claimant with the
claim.

Furthermore, the claimant has been notified of the applicable
laws and regulations which set forth the criteria for
entitlement to an earlier effective date.  The discussions in
the rating decision and statement of the case have informed
the claimant of the information and evidence necessary to
warrant entitlement to the benefit sought.  The Board
therefore finds that the notice requirements of the new law
have been met.

The Board has reviewed the facts of this case in light of the
VCAA and the new VCAA regulations.  As discussed above, VA
has made all reasonable efforts to assist the claimant in the
development of the claim and has notified the veteran of the
information and evidence necessary to substantiate the claim.
Consequently, the case need not be referred to the veteran or
his representative for further argument as the Board's
consideration of the new law and new regulations in the first
instance does not prejudice the claimant.  See generally
Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4
Vet. App. 384 (1993); VAOPGCPREC No. 16-92 (July 24, 1992).

Under the circumstances of this case, where there has been
substantial compliance with the VCAA, a remand would serve no
useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).

Analysis

Review of the claims folder reflects that service connection
for bilateral defective hearing was established by rating
decision in July 1984.  A noncompensable rating was assigned,
effective from February 15, 1984.  The veteran subsequently
appealed the assigned disability rating and, in an October
1985 decision, the Board denied entitlement to a compensable
rating.  The Board's October 1985 decision is final.  38
U.S.C.A. �� 7103(a), 7104(a).  The RO subsequently increased
the disability rating to 10 percent and then to 30 percent,
effective March 19, 1987.  The veteran has appealed from the
assignment of that effective date.  At the July 2001 Board
hearing, the veteran offered contentions to the effect that
he has suffered hearing loss since his discharge from
service.  However, in view of the fact that the final Board
decision of October 1985 denied entitlement to a compensable
rating, principles of finality do not permit the Board to
revisit the question of the proper rating for the period of
time covered by the October 1985 Board decision.

The applicable law and regulations governing effective dates
state that, except as otherwise provided, the effective date
of an evaluation and award of pension, compensation or
dependency and indemnity compensation based on an original
claim, a claim reopened after a final disallowance, or a
claim for increase will be the date of receipt of the claim
or the date entitlement arose, whichever is later.
38 U.S.C.A. � 5110, 38 C.F.R. � 3.400.  However, in cases
involving a claim for an increased evaluation, the effective
date may be the earliest date as of which it is factually
ascertainable that an increase in disability had occurred if
the claim is received within one year from such date,
otherwise, the date of receipt of the claim.  38 C.F.R.
� 3.400(o)(2); See Quarles v. Derwinski, 3 Vet. App. 129,
134-135 (1992).

The record reflects the RO received a claim for an increased
evaluation for service-connected bilateral defective hearing
on May 20, 1987.  Treatment records and mental examination
reports dated in 1985 reflect treatment for a psychiatric
condition and note bilateral hearing loss under Axis III, but
do not provide any audiometric test results, details or
comments as to the degree of hearing loss.  A VA general
examination dated in December 1985 reflects the veteran's ear
canals were partially occluded with cerumen, but documents no
findings of hearing loss.  A neurology consultation noted
possible sensorineural hearing loss.  Although this evidence
does demonstrate the veteran suffered from hearing loss, it
does not show that the veteran was entitled to a 30 percent
evaluation for his hearing loss under the applicable rating
criteria.  The veteran was admitted to a VA hospital on March
19, 1987, in connection with various disorders.  The VA
discharge summary from that admission indicates that the
veteran was a candidate for hearing aids.  Subsequent VA
audiometric examination showed that the criteria for a 30
percent rating were met.  Because hearing tests were
recommended during the VA hospitalization which began March
19, 1987, and because subsequent audiometric tests showed
that the criteria for a 30 percent rating had been met, the
RO has selected March 19, 1987 (the date of hospital
admission) as the earliest date on which it was factually
ascertainable that an increase in hearing acuity had occurred
to warrant assignment of a 30 percent rating.  The Board need
not consider whether it was factually ascertainable as of
that date that the criteria for a 30 percent rating had been
met.  The only question is whether the evidence shows that is
was factually ascertainable prior to March 19, 1987, that a
decrease in hearing acuity had occurred to meet the criteria
for a 30 percent rating.  After reviewing the evidence of
record, the Board is unable to find any earlier evidence
which shows that the criteria for a 30 percent rating were
met.  Evidence during the few years prior to that date
include references to hearing loss, but there was no
persuasive evidence that showed that there was hearing loss
to warrant a 30 percent rating.

The veteran's representative has also alleged entitlement to
an earlier effective date for the assignment of a 30 percent
evaluation for bilateral hearing loss on the basis of a
liberalizing change in the law in 1987.  Where pension,
compensation, or dependency and indemnity compensation is
awarded or increased pursuant to a liberalizing law or a
liberalizing VA issue approved by the Secretary or by the
Secretary's direction, the effective date of such an award or
increase shall be fixed in accordance with the facts found,
but shall not be earlier than the effective date of the act
or administrative issue.  Where pension, compensation, or
dependency and indemnity compensation is awarded or increased
pursuant to a liberalizing law or VA issue which became
effective on or after the date of its enactment or issuance,
in order for a claimant to be eligible for a retroactive
payment under the provisions of this paragraph, the evidence
must show that the claimant met all eligibility criteria for
the liberalizing benefit on the effective date of the
liberalizing law or VA issue and that such eligibility
existed continuously from that date to the date of the claim
or administrative determination of entitlement.  38 C.F.R.
� 3.114(a).  If a claimant requests review of his claim
within one year from the effective date of a liberalizing
regulation, benefits may be authorized from the effective
date of the liberalizing provisions.  See 38 C.F.R.
� 3.114(a)(1).

The regulations governing the rating criteria for hearing
loss were amended effective December 18, 1987.  See 52 Fed.
Reg. 44119 (November 18, 1987).  The record reflects that in
a July 1988 rating decision, the RO assigned a 10 percent
evaluation for bilateral hearing loss under the revised
criteria, effective from December 18, 1987, the date of the
liberalizing law.  In a November 1988 rating decision, the RO
assigned a 30 percent evaluation for bilateral hearing loss
effective from March 19, 1987, under the old criteria.  The
veteran in this action is seeking entitlement to an effective
date prior to March 19, 1987.  As previously noted, under
38 C.F.R. � 3.114, an increase under the liberalizing law may
not be awarded prior to the effective date of that
liberalizing law, which in this case is December 18, 1987.
Thus, an effective date prior to March 19, 1987, for the
assignment of a 30 percent evaluation for bilateral hearing
loss cannot be awarded on the basis of the liberalizing law.

In sum, the preponderance of the evidence is against
entitlement to an effective date prior to March 19, 1987, for
the assignment of a 30 percent evaluation for bilateral
defective hearing.  It follows that the Board is unable to
find such a state of approximate balance of the positive
evidence with the negative evidence to otherwise warrant a
favorable decision.  38 U.S.C.A. � 5107(b).

ORDER

The appeal is denied.

	ALAN S. PEEVY
	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.